This week on The Real Word, Rob Hahn, aka Notorious ROB, joined Byron Lazine to discuss the HousingWire “debate” between attorney Michael Ketchmark and Anthony Lamacchia. 

There’s a reason for those quotation marks. In Hahn’s words, “It wasn’t a debate in any sense of the word.” 

Lamacchia spoke in heated defense of real estate agents, whom he perceived to be Ketchmark’s target. The Sitzer/Burnett plaintiff’s attorney, for his part, lost his temper a few times but, unlike Lamacchia, did not resort to personal attacks. 

Byron and Rob discussed the latter’s response to the debate in his blog, “The Law of Holes.” 

To be clear, both agreed on the following:

  • They have immense respect for HousingWire
  • Neither know Lamacchia or have anything against him personally (and his success as a broker speaks for itself)

“We’re in a hole. Let’s stop digging!”

The recurring theme in the conversation was the hole NAR currently finds itself in—between the fallout of their defeat in Sitzer/Burnett and their own internal issues—and how “debates” like the one between Lamacchia and Ketchmark only make the situation worse. 

The personal attacks on the lawyers, on the legal profession, on the judges, that was the worst. The other thing is just the overall demeanor, right? Let’s face it, Ketchmark…he lost his temper a couple times, he raised his voice, etc. But when you look through all of that, he made sure to point out, “This is not against Realtors.” It’s nothing against Realtors, nothing against agents…he just kept it on “It’s the system…I’m attacking NAR.” And he never attacked Anthony personally.

Rob Hahn

aka Notorious ROB

We get that it can be satisfying when your team scores a victory against the opposing team. But Lamacchia seemed more intent on punishing Ketchmark for his victory in court than actually achieving something good for the Realtors. 

We’re supposed to be like, “Yay! Our linebacker sacked their quarterback!” That’s just not helpful for us… Again, the points I made in the article was we need this judge to rule in our favor on a couple of really key motions, right? They say they’re going to appeal this lawsuit to the Eighth Circuit. Court of Appeals judges are human beings. Court of Appeals judges were all lawyers before they became Court of Appeals judges.

Rob Hahn

aka Notorious ROB

The verdict is in. What should Realtors focus on now?

Both Byron and Rob agreed that the National Association of Realtors should not hesitate to publicly distance itself from Anthony Lamacchia—and make it abundantly clear the latter does not speak for NAR or for real estate agents in general. 

Another point Hahn brought to the fore was the utter pointlessness of both sides arguing over which side is better or whether the jury was right or wrong. The verdict is in. The only way forward is an appeal. 

So, if the debate is an example of what not to do, then what should industry professionals focus on doing now?

The jury already decided… Let the appeals court deal with that. 

The smarter thing [to focus on], because I think this is actually true, is 99%, maybe 100%, of brokers and agents who are doing cooperative compensation were doing it because this is the only system we’ve ever known… In other words, nobody was doing this to try and screw consumers. No one is doing this to keep prices high. We were doing this because this is how we were raised in the industry.

We don’t have to defend the system to our death. What we have to defend to the death is the fact that Realtors are good people who are professional and who give a shit about the client. That’s what we have to defend. And if that means we have to abandon [the system because] it’s illegal, “Happy to abandon it. Let me figure out how else I can help you.” That’s the message we need to send, not this.

Rob Hahn

aka Notorious ROB

And by “this,” he meant Lamacchia’s attempt at publicly debating Ketchmark. 

We need to acknowledge the L that’s on the board. We lost this trial. And whatever happens in appeals happens in appeals. But there’s no question with DOJ pressure or any of the lawsuits that you mentioned that there are going to be changes to the system moving forward. But what’s been acknowledged over the last 20 years by Zillow, who didn’t acknowledge this in year one or year two, is that the consumer overwhelmingly wants the representation of an agent.

Byron Lazine

RISMedia put up a panel that included Anthony Lamacchia, and Byron played a clip of that panel during the episode—specifically the segment where Lamacchia explains how a buyer agent would be “obligated” to essentially steer buyers away from homes listed without cooperative compensation. 

I think Inman, HousingWire, RISMedia…have made a massive mistake to the industry by putting up Anthony Lamacchia up as a spokesperson. Now, RIS, to their defense, put James Dwiggins…on that panel. He’s much more educated on the case and the whole situation going on than Anthony is. That becomes clear. He doesn’t have as loud of a bark as Anthony does, but he’s calm, he’s collected, he’s very well-educated. I would trust him enough in a situation against Ketchmark in a debate than almost anybody in the industry.

Byron Lazine

“Michael Ketchmark is not the lawyer who brought these lawsuits first.”

Another fact Hahn was careful to point out during the conversation was the fact that Michael Ketchmark is not the attorney who first brought these class action lawsuits to trial. 

He may be the first attorney to come to mind when we talk about Sitzer/Burnett. And it’s doubtful any of the defense attorneys for NAR, et al, will have the same degree of notoriety. 

But ultimately, he’s not the reason NAR finds itself in a (deep) hole.  

The first thing everyone needs to understand is that Michael Ketchmark is not the lawyer who brought these lawsuits first. The lawyers who brought these lawsuits first is Moehrl vs NAR. And the lawyers there are from some of the biggest and scariest litigation firms in the country…These are names that Fortune 500 companies are terrified of… 

So this personalization to this one guy in Missouri…It’s stupid. It makes us look immature. It makes us look uninformed.

Rob Hahn

aka Notorious ROB

Ketchmark certainly benefited from Sitzer/Burnett, mainly because—  

  • He understood and identified with the plaintiffs’ argument
  • He had the strength of his own convictions in support of that argument
  • He knew how to present his case and supporting evidence to the jury

Not once did Ketchmark talk down to the jury the way NAR’s attorney did. So, while the Sitzer/Burnett verdict came as a disappointing surprise to many, it owed plenty to Ketchmark’s strong performance on behalf of his clients. 

And that had a lot to do with his own connection to the case as well as his skills as a legal professional. 

Moral of the story: Don’t debate a lawyer unless you’ve got the chops and the character to calmly engage in a rational back-and-forth without resorting to personal attacks. 

The industry needs to look forward in order to best serve clients, rather than to past decisions made in court. 

Watch the full episode to hear the whole conversation.