Two Clients, One Brokerage, and a Coffee-Shop Confession
Agent Kim at Riverbend Realty has the listing on a $365,000 home at 6% commission. The listing agreement states that dual agency is permitted with written consent. Kim's teammate, Dale, brings a buyer. Over coffee the buyer tells Dale: 'I'll go to $390,000 - my lease ends in 45 days and I can't renew it.' Separately, divorce filings show the seller must net at least $340,000 to retire the mortgage. The seller asks Kim, 'What is the most they will pay?' The buyer asks Dale, 'How low will the seller go?'
1. What may Kim and Dale disclose to their respective clients, and what must they withhold?
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Confidential information stays on the side that generated it.
- Buyer's ceiling ($390,000) and the 45-day lease deadline are the buyer's confidences. Dale cannot tell Kim or the seller.
- Seller's net requirement ($340,000) and the divorce pressure are the seller's confidences. Kim cannot tell Dale or the buyer.
What may be shared. Facts about the property, market data, showing logistics, and the terms of any written offer. Kim may present the offer and say the seller is asking for a written counter; Dale may present the counter and ask the buyer how to respond.
What must not happen. No hinting, no 'they'll take less,' no 'they're motivated,' no using the other side's deadline to pressure price. Disclosure of either confidence would breach loyalty and confidentiality and would likely be a license-law problem in addition to a civil one.
2. What must the brokerage do before moving forward, and what structure reduces the conflict?
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Prerequisites for dual/limited agency.
- Written, informed consent from both buyer and seller before confidential information is exchanged, signed by the parties, not just the agents.
- A written disclosure explaining that the brokerage will not advocate for either side on price and that neither client will receive undivided loyalty.
- Confirm the current Mississippi Real Estate Commission rules on the permitted form of the consent and any required disclosure language; rules change, so verify rather than rely on memory.
Better structure where allowed: designated agency. Kim represents the seller and Dale represents the buyer, each giving undivided loyalty to one client, with the brokerage remaining neutral at the entity level. This is cleaner than true dual agency, but it still requires written consent and careful file documentation.
If consent is refused. One party must be referred to another brokerage. Do not let the transaction proceed on an implied consent theory.
3. The seller asks Kim, 'Just tell me if that is their best offer.' How should Kim respond?
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Kim can say only what the offer says and what the market supports: the offer is $X with these terms and contingencies, and here is the comparable sales data. Kim cannot say 'they will go to $390,000' or 'I think they will come up.'
The correct move is to ask the seller for a written counteroffer at a specific number and terms. A counter is the legitimate way to test the other side without disclosing confidences.
Mirror problem. Dale cannot answer the buyer's question about how low the seller will go. Dale can present the counter and let the buyer decide.
Document the conversation. A short file note that a counter was recommended and that no confidential information was disclosed protects both agents if a complaint is later filed.