NEED FOR REAL ESTATE BUYERS' ATTORNEY AT ALL TIME HIGH
Portia Scott • March 20, 2024

With the National Association of Realtors' Settlement of the Anti-Trust case, we wonder how will this all shake out. 

First, What is an "Anti-Trust" suit in the first place? That is right: time for a little history lesson. 


In 1890, the Congress of the United States passed the first such legislation. It was specifically aimed at curbing the immense concentration of power in private industry. The idea was to encourage competition and restrict monopolies. Just like anyone who has played the board game, a monopoly enables the person who has the monopoly to demand higher prices for whatever it is they are selling. In the board game, it is rent, but it applies equally well to oil companies, telephone companies and, of course recently, social media companies. You can get more when you are the only game in town. 


The danger of these so-called "trusts" (i.e., the monopolies) is that the entity with the monopoly has all of the power. So, in this case, a group of Sellers were complaining to the Courts that they had been charged to pay for the Agent who represented the Buyer of their house. 


The way it had been working is that the Seller of the home would hire an Agent who would list the house for sale, agreeing to pay a percentage of the eventual purchase price to the Agent- usually 6% for a house. One of the ways the "listing" agent would advertise the house was by placing it in the Multiple Listing Service (the "MLS"). 


An agent who had a client looking for a house would look at the MLS and find a few houses in their client's price range, neighborhood of interest, right number of bedrooms, that kind of thing. The would-be Buyer's agent would then look to see how much of that 6% the Listing Agent was getting from the Seller was available to the Buyer's agent. Typically, the Listing Agent would split the 6% with the Buyer's Agent. 


The Buyer's Agent would set up appointments, not only for the Buyer to see the house, but, if an offer was made to buy the house, would also help coordinate any inspections and negotiate the terms of the purchase, looking out for the Buyer's interest. 


Well, now, all that has changed. The settlement reached now prohibits the listing agent from offering any of their commission (the 6%) to a Buyer's Agent in the MLS. The idea is that, with the Seller's agent no longer being allowed to use the MLS to let the buyer's agents know what they can expect to get paid, the Sellers' Agents will charge less than 6%. This may be true; it may not. 


The Sellers' Agents may think that they will have to do their own work as well as the work which used to be done by the Buyers' Agents. They may think double the work, double the money they should receive and keep the whole 6% to themselves. This is a problem for the Buyer, though, as they no longer have an Agent on their side. The only Agent in that plan is the Seller's Agent. 

The Buyer's Agent might seek to get paid up-front before they put the work in to finding the perfect (well, the best available) house for the Buyer. 


Further, this means that Agents who used to represent Buyers, advocating for them, arranging to show them multiple houses, getting any inspections done and helping get the deal done, will face 4 options: 


1) get the Seller to pay them directly to represent the Buyer's, not the Seller's, interests; 

2) get the Buyer to pay them directly, thereby limiting the money available for a down-payment; 

3) get the listing Agent to share the commission after finding the house for the Buyer; 

4) get a new job. 


If the job of Buyer's Agent goes the way of the Dodo Bird, then the importance of having an attorney in your corner becomes of paramount importance. 


BEFORE YOU SUBMIT AN OFFER DRAFTED BY THE SELLER'S AGENT, give it to our attorney and discuss how to best protect yourself and understand the costs associated with your offer. 



The Seller's Agent is interested in getting the house sold with the very best deal for their own client, the Seller, as quickly and for as much money as possible. 


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Gloves are Off!

By Portial B. Scott, J.D.,L.L.M. • May 31, 2026
Appellate Gloves Are Off: Warnings Appear to Be Over with Our Courts Over Unverified Artificial Intelligence Arguments and Filings This is the third straight article I have written on this topic - but things keep moving and changing. In my first two articles on this topic (the use of Al in Court filings), I explained that our appellate Court (the "4th") has been issuing warnings about the use of Artificial Intelligence in drafting and filing papers with the Court if the Al is not double-checked against reality. In those articles, I explained that the 4th was giving warning after warning against filing unauthenticated Al-generated motions, petitions, appeals, complaints, briefs, memoranda of law. Now, in three separate rulings on May 27, 2026, the 4th has stopped issuing warnings and has started imposing sanctions and, for attorneys, referrals to the Florida Bar for disciplinary action. In the first case,a self-represented litigant was found to have abused the courts. by filing some 90 Al-generated motions against his former wife. The 4th observed that the arguments made in his appeal to the 4th were not based on actual cases, rules of procedure or, if they were actual cases, such arguments were not found in those cases. As a self-represented litigant, the 4th cannot refer him to the bar for discipline. So, what can the 4th do? They can prohibit him from being able to file any more papers in our courts without having a Florida Bar -licensed attorney sign off on the papers. This is a drastic sanction since access to the Courts is of such high value in America. We want people to have access to the Courts - so they don't settle their disputes at high noon in the middle of the street with firearms or have it out with brawls. The idea behind requiring such sanctions is that an attorney will think twice before endangering their right to practice law. The attorney requirement is expensive, too. Still, when a litigant abuses the courts system, there must be some way to safeguard the integrity of the Court. The idea of an attorney cherishing their rights to practice, however, may not always be 100% accurate. (See below) The second case involved an attorney who filed an "emergency" motion, citing cases which do not stand for the concept of what the attorney claimed. By way of example of what I mean, if the attorney claimed that Roe v. Wade stands for the proposition that income tax is unconstitutional, that would be claiming something that just is not so. Importantly, it is verifiably not so. One need only look at the Roe v. Wade decision to see it is not correct. The 4th said that, whether the case is misrepresented as meaning something it does not or even does not exist at all, it does not matter. Both are equally wrong. The attorney was reported to the Florida Bar for disciplinary inquest. in the third case, an attorney filed a brief which included references to what has happened at trial and quoted from the transcript of the trial. However, since appeals ususally have to have a copy of the transcript included when the appeal is filed (so the 4th can read what actually happened and not just take the filer's word for it), it soon became obvious that what the attorney said had been said in Court was not true. This might have been a result of poor prompting by the attorney to the Al or intentionally misdirecting the Al. It also could be that the transcript of the trial was fed to Al and Al misunderstood what had happened - due to not understanding fully the meaning of certain legal terms. On top of that, Al also "hallucinated" legal authority and the attorney filed it with the 4th, even apparently invoking some of it in oral argument before the 4th, doubling his sins. In the end, how it happened did not matter. The 4th found that the lawyer cited imaginary legal authorities as if they were law and the 4th reported him to the Florida Bar for discipline action, putting his law license in jeopardy.  I want to make it clear: the 4th does not prohibit the use of Al in filings, but everyone must ensure that the citations to legal authority, the statement of the facts and all manner of statements are accurate, real and not the figments of Al's desire to provide a winning argument at the cost of truth.

And furthermore....

By Portia B. Scott, J.D.,L.L.M. • April 2, 2026
Another Warning from our Appellate Court Regarding Al I hate to repeat myself, but.... The March 25, 2026 release of written opinions from our own Fourth District Court of Appeal (4th DCA) has another warning to persons venturing into the Court system. As you may know, I wrote about a warning from the 4th DCA about a self- represented Appellant (person seeking to have the trial court's decision overturned) using Al and the possible, but not inflicted, sanctions which could have resulted. Now, again, in Gouveia v. Meridian Financial Investments, LLC, the 4th DCA has again written to address this increasingly abusive use of Al in the Courts. In this more recent case, there was a contract dispute and the trial court ruled in favor of the Plaintiff (the party making the complaint...get it? "Plaint-iff" based on "Com-Plaint?"). The losing side filed an appeal, asking for the 4th DCA to overturn the decision of the trial court. Well, that went nowhere and the Plaintiff kept its win. The story here is that the person who lost at trial and on appeal, in his case and appeal to the 4th DCA apparently used Al to help write his argument. The Al manufactured ("hallucinated") prior cases which did not exist or, if they did exist, did not stand for what the person said it did. It would be as if the person made reference to Roe v. Wade (a case which does exist) and told the appeals court that it stood for the legal principal that a Jack of Spades has a higher value in poker than the King of Spades (which is absolutely not what Roe v. Wade said). Is that straight-up nonsense? Yes and as absurd as that which was submitted to the appeals court as if it were true. The Court issued another warning about the possibilities of sanctions if it is done again by the person submitting it, just like before. But, as the concurring opinion in this case points out something else (a "concurring opinion" is a written opinion which agrees with the actual opinion but has more to say). The concurring opinion points out how meaningless it is to threaten sanctions against someone who will most likely not be before the Court again. That means that the opportunity to misbehave for this person is greatly reduced. Most self-represented folks only appear once -if at all- before the appellate court. The concurring opinion said that with attorneys, it is not a problem as sanctions will work against us, seeing how we are in court so often. What is the solution? The writer of the concurring opinion doesn't know but suggests some pro-active steps. (Sanctions are, by their very nature, reactive - they are issued in response to something done.) Perhaps forcing sworn statements from the parties that they have not used Al or, if they have, exactly what the Al included; that the party submitting the Al- generated document has double-checked the sources. Something which can help us all work with the rising tide of Al, Chatbots, LLM tools.  Stay tuned!