Sellers are only making a 'choice' if they know all the facts 

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The views expressed in this column are solely those of the author.

In a recent column, Coldwell Banker Affiliates President Mary Lee Blaylock makes a case that is easy to nod along with: The homeowner should decide how their house comes to market, guided by an agent who knows them and not by a portal or MLS with no duty to the seller. 

Speaking as a real estate attorney who's been a broker for more than 30 years, I agree with almost every word of that: the seller decides and the agent serves. But I take issue with Blaylock's central argument, which rests on fiduciary duty — because fiduciary duty does not point where she says it does.

Fiduciary duty requires honesty, even if it costs the adviser

A fiduciary owes the client two things above all: undivided loyalty, and full disclosure of every material fact and conflict. Blaylock invokes that duty to argue the seller should be free to choose a private or phased path. Loyalty and disclosure are not satisfied by offering a menu, however, but by telling the client, honestly, what each item on the menu will cost — and whether the person recommending it has a stake in the choice.

Let's start with cost. Multiple studies have reached the same conclusion: Homes marketed openly sell for more. A few recent examples:

• Bright MLS's report on office exclusives found no price benefit for sellers and a longer time to contract. 

• A San Francisco Association of Realtors analysis put the cost of off-market selling at more than $300,000 per transaction, on average, for area sellers.

• Zillow's national data found off-MLS sellers left roughly $1 billion on the table in two years. 

Reasonable people can argue at the margins, but any claim that restricting exposure is, on average, how you get a seller the most money is dubious at best.

So here is the fiduciary question one should be asking: When an agent recommends the phased or private path, do they tell the seller it will likely cost them money and time? Compass created a new disclosure form last year that lays out the benefits of its 3-phased marketing strategy before noting that the approach can result in fewer offers and a lower sale price. How many agents discuss those downsides in detail? Consent obtained without fully explaining the risk is not informed consent. It is merely a signature. 

Then there is the conflict of interest. Blaylock is right that portals have no duty to the seller. But she doesn't mention that the party urging the seller to restrict exposure is often the one profiting from that restriction. 

When a listing is held inside one brokerage's network, that firm stands a far better chance of earning the whole commission. Fiduciaries are allowed to have interests, but they are required to disclose them and put the client's interest first anyway. A marketing strategy that quietly serves the brokerage's economics is the textbook situation fiduciary duty was written for.

There is no 'choice' without disclosure

Blaylock offers two analogies to support her "choice" argument. But when considered closely, both make the point for exposure. "We don't tell coaches there is only one way to win a game, or lawyers that there is only one way to structure a deal," she writes. True. But unlike a brokerage that benefits from keeping deals in-house — potentially at the seller's expense — a coach does not earn more when his team loses.

And if lawyers from the same firm are representing clients on both sides of a transaction, the attorneys have a conflict of interest they are ethically bound to disclose. That's because choice without disclosure can amount to malpractice.

Blaylock also argues that seller demand for flexibility is behind the rise in listing options. Some of that is real. But a good deal of the "demand" for private listings is manufactured at the point of sale: In a 2025 Zillow survey, 63% of recent sellers said their agent pitched them on a private listing, up from a small fraction a few years ago. 

Demand created by an agent during a listing appointment is not the same as demand that originated with a seller — and a fiduciary is supposed to be the check on that, not the engine of it.

Let's be clear about whose interests are being served

The "seller choice" chorus is loudest among the firms that benefit from keeping listings in-house. Coldwell Banker is now part of Compass, which has built its business around the private-exclusive model. That doesn't make Blaylock wrong by association, but it means the argument should be weighed for what it is: a case for a practice that serves the arguer's economics, presented in the language of the seller's freedom.

Real choice is the goal. Give sellers the data on private vs. public marketing side by side. Tell them what choosing the former is likely to cost in price and in days. Disclose, in writing, whether your firm stands to earn commissions on both sides of the deal. And then — genuinely — let them choose. A seller who hears all of that and still elects privacy for their own reasons has exercised real freedom, and I'll defend that choice as hard as Blaylock would.

But that is not the choice most sellers are being offered. By invoking fiduciary duty, Blaylock cited the right principle. It just belongs on the other side of her argument.

Bruce Ailion is an associate broker with RE/MAX Town & Country and an attorney in metro Atlanta, where he has represented buyers, sellers, builders and investors for more than three decades. He is a past president of the Cobb Association of Realtors and holds a J.D. and a master's in real estate from Georgia State University, and a marketing degree from Emory University.