Treat sellers, bidders, and buyers with good behavior? Endeavor to be fair and reasonable? Are these good thoughts to have when deciding what to do as an auctioneer? We have held they are. But, what has your attorney told you? Has your attorney told you the law says you “Can do this,” or “Don’t have to do that?”
As we’ve all seen for several years, auctioneers have been exposed to a somewhat strict interpretation of the law sometimes — but not always — lacking in regard to the moral, economic, social and political factors which correspond to any legal decisions.
For instance, even though the law allows an auctioneer in specific circumstances to “reopen the bid” should he? Some hold auctioneers can waive, disclaim and assign all responsibility for everything, but should they? The law suggests bidders can be held to any terms and conditions they agree to, but should we make such more understandable?
The American Bar Association has published the Model Rules of Professional Conduct and as such we cite Rule 2.1: Advisor which says:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Further, the “Comments” section has this additional [2] detail (with our emphasis:)
[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.
We are only one of many who hold that staying out of court (and/or minimizing that risk) is preferred to being in court as a plaintiff or defendant. Therefore it would seem if auctioneers have been sued (for example) 348 times for doing something (win or lose) … it would be prudent for all other auctioneers to not do that, and for their attorney to give that same advice.
We certainly recommend you seek legal counsel when needed, and in no way believe court can be completely avoided. Yet, just looking at (or quoting) any particular law or rule is often insufficient. We as auctioneers have to study the law or rule in context and should seek decisions which minimize cost and unnecessary time away from our businesses.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.
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