Professionals know that many people buy homes based on raw emotion rather than on solid, verifiable facts. People buy homes when they can visualize their families living in the new place and whether that decision is financially appropriate may be of secondary importance.

For this reason, one of the most important tasks for those who are the "real estate professionals," is to ensure that their clients are being rational and keeping the bigger financial picture in mind.

There are many professionals who are actively involved in the residential real estate market. They include the real estate salespeople, lawyers, surveyors, architects, engineers, and sometimes environmental consultants. All of them are a necessary part of this reality check that should be given to each prospective buyer or seller.

When people purchase or sell real estate, they are generally not thinking about malpractice lawsuits. Rather, they are thinking about completing the deal and the gains that they will realize after the deal is done. It's only when things go sour that buyers and sellers start thinking about malpractice.

For example, let's assume that your client loves the property and is ready to put down a $200,000 deposit. Did your client engage in adequate due diligence? Does your client understand the result of a recent survey update indicating that a perimeter fence might not be located entirely on site? Does your client understand what the significance is of the fact that the property just barely passed a percolation test, meaning that it might be very difficult to install a septic system on the property? Does your client understand the fact that a use variance may be required in order to continue to use the property as a house, rather than a retail facility, which is what the municipality would like to see on the location?

These are all part of the reality check process that as professionals we must engage in, day in and day out. We know that our clients are probably thinking more about closet space and kitchen amenities than sewer service and fence lines. But at some point the sizzle will slow down and our clients will be faced with a toilet that does not flush the way it ought to, or a neighbor suing over that fence's trespass. Making sure our client's eyes are wide open before the transaction is a very important part of what we all must do.

In order to avoid malpractice claims, I recommend that professionals maintain strong lines of client communications. Calls must be returned within 24 hours and dispatched advice must be accurate -- not canned.

When necessary, follow up letters to clients should be sent making sure that everyone is on the same page. Communication skills alone should keep everyone happy, and out of that malpractice arena.

In addition to being reality checkers, avoiding malpractice often requires bringing in other professionals when unique issues arise. For example, if a home has a leaking underground storage tank, or a well is under-performing, should the real estate lawyer bring in an environmental attorney? Or should the real estate lawyer bring in an environmental consultant?

The decision to bring in a consultant, as well as the determination of which consultant to bring in, are both issues with potential malpractice ramifications. Professionals must know when they are in over their heads and must be sure to secure competent assistance.

Many busy real estate professionals rely on less experienced persons in their offices to handle "routine" matters. The problem is that routine issues can escalate into non-routine issues very quickly. Professionals must ensure that their staff members are well trained, aware of their own limits, and are well supervised. A failure to ensure any of these requirements may result in a successful malpractice claim.

Neither clients nor professionals should look forward to a malpractice litigation. They're usually very emotional, hard fought, costly, and time consuming. Often, both the plaintiff and the defendant are permanently affected at the conclusion of this kind of litigation, regardless of the outcome.

A recent study indicated that when doctors apologize, they are less likely to be sued for malpractice. I think that is because honesty and communication go a long way to avoid malpractice claims. At the end of the day, clients do not want to sue people they like. And clients are more likely to like professionals who are working hard and who are communicating with them regularly.

Published: July 7, 2005

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Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 to 1990. Currently he is a shareholder in the environmental law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. Stuart can be reached at slieberman@liebermanblecher.com.