ArticleAs a former hearing officer on the AIA National Ethics Council, and now a testifying expert in construction disputes, I have seen my share of Professional Ethics and Standard of Care claims. The complexity of these cases typically grows as additional parties are named in a lawsuit and when the nature of the relationships between named parties is increasingly intertwined. In determining liability and causation, it is important to first understand fundamental concepts from the world of architecture and construction; when armed with this knowledge, it is possible to systematically evaluate the performance of each party against relevant contract requirements, construction documents, building codes, industry standards, and the Standard of Care.
The Standard of Care
The Standard of Care is not a fixed “standard” in the way those published by ANSI and ASTM define a procedure or protocol. The standard of care for contractors, subcontractors, construction managers, architects, and consulting engineers varies with the specific practices being examined, including interrelated construction documents, and circumstances unique to the project.
Founded in 1857, the American Institute of Architects (AIA) is the largest professional organization for architects in the United States. The AIA has published the Architect’s Handbook of Professional Practice, which defines the standard of care as:
The ordinary and reasonable degree of care required of a prudent professional under the circumstances. Defined as what a reasonably prudent architect, in the same community at the same time, facing the same or similar circumstances would do. It is the measure by which behavior is judged in determining legal duties and rights.
In the performance of professional responsibilities, an architect may be guided by the AIA, state laws governing licensure; applicable national, state, and local codes, ordinances, and standards; and the National Council of Architectural Registration Boards (NCARB).
NCARB is a non-profit corporation comprised of architectural registration boards. Member boards include the 50 states, District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands. They develop and administer the Architectural Registration Examination (ARE) and publish Rules of Conduct; which is a recommended set of standards applicable to architects registered by the member boards. The objective of the Rules is the protection of the public.
Architects, through their licensure, bear a responsibility for the health, safety, and welfare of the general public. They must be diligent in both designing buildings that comply with the client’s budget and ensuring that the building does not pose unreasonable hazards to occupants.
The AIA provides and mandates continuing education for its membership. They also publish a wide range of contract documents used throughout the construction industry, along with the Code of Ethics and Professional Conduct. The AIA Code applies to the professional activities of all members of the AIA. It addresses responsibilities to the public, to clients, and to the profession. These responsibilities are arranged in three tiers: Canons, Ethical Standards, and Rules of Conduct. Canons are broad principles of conduct. Ethical standards are more specific goals toward which members should aspire in professional performance and behavior. Rules of Conduct are specific mandatory requirements. The violation of a Rule is grounds for disciplinary action by the AIA.
It is important to understand the ethical aspects of the standard of care. An architect must be aware of potential practice situations in which they might be placed. Those related to owner furnished agreements, owner retained consultants, and modifications to standard professional services initially come to mind. Failure to recognize a potential “red flag” could be detrimental to the practitioner. Further, an architect should not independently undertake a responsibility for which they are not qualified.
The compliance or non-compliance of an architect, with ethical requirements within the profession, may impact whether that professional has or has not complied with the standard of care.
DRAWINGS & SPECIFICATIONS
How many drawings should there be? All that was required was “a builders set.” Means and methods of construction are the responsibility of the general contractor. How often have those common issues in construction disputes been discussed?
Some states, like Florida, have statutes that require:
Plans, drawings, specifications and other related documents prepared by an architect shall be of a sufficiently high standard to inform the users thereof of the requirements intended to be illustrated or described by them. Such documents shall clearly and accurately indicate the design of all essential parts of the work to which they refer. An architect shall meet a standard of practice which demonstrates his knowledge and ability to assure the safety and welfare of his clients and the public.1
With regard to the complexities of a set of construction drawings, the International Building Code requires:
Construction documents for all buildings shall describe the exterior wall envelope in sufficient detail to determine compliance with this code. The construction documents shall provide details of the exterior wall envelope as required, including flashing, intersections with dissimilar materials, corners, end details, control joints, intersections at roof, eaves or parapets, means of drainage, water-resistive membrane and details around openings.2
The importance of an architect providing full services cannot be overstated. Construction administration should not be an “optional service.” The public safety is best protected by a licensed architect taking responsibility for the interpretation of their technical construction documents to ensure that the project will be built as described in those documents. Many fabricated components of a building project, critical to the public safety, are not fully detailed until after construction has begun. Shop drawings for structural steel connections and pre-engineered wood trusses are examples of this.
Architects may believe that performing construction observation increases their exposure to risk. Developers often view the services provided by an architect, following issuance of a building permit, as a needless expense. Both of these statements are misconceptions.
Fewer disputes occur during construction, related to the construction documents, when an architect is involved during construction administration.3 No matter how detailed or accurate a set of architect’s drawings and specifications are, most experienced contractors will benefit from some interpretation to construct the project.
In 1999, NCARB performed a survey of how building officials view the role of the architect to ensure the public safety of buildings. Of the 2,447 building officials who responded, 87 percent agreed that:
In order to protect the health, safety, and welfare of the public, licensed architects and engineers should be required to conduct on-site observations of the construction of any substantial building.
Many developers are not knowledgeable with regard to construction practices and are cognizant only of the financial considerations. As a result, they may have neither the ability nor desire to adequately monitor the many daily activities of contractors on a construction site.
Even though an architect may be diligent in practice, situations may occur that are beyond their control.
- It is the window manufacturers’ responsibility to design and to test the window so that it will perform as specified.
- It is the architect’s responsibility to determine the most appropriate window for the installation and to detail the installation of that window pursuant to the manufacturer’s instructions and building code requirements.
- It is the contractor’s responsibility to properly store the window prior to installation and to install it according to the architect’s details and the manufacturer’s specifications.
- It is the building owner’s responsibility to maintain the window. Wood windows need to be painted. Joints between windows and other materials require inspection and may need to receive sealant at periodic intervals.
Although the architect exercised a standard of reasonable care, the window may leak and the building may experience water intrusion.
Members of the public, including prospective clients and authorities having jurisdiction, expect architects to accurately represent their qualifications and experience when claiming credit for architectural work.
Copyright issues and laws of intellectual property are far more complex than this discussion. However, one of the most frequent violations of the AIA Code of Ethics and Professional Conduct involves the failure to acknowledge appropriate credit and recognition.
Architecture is a profession in which design creativity and the instruments of service are highly valued, greatly respected, and may result in the success or failure of an architectural firm. Throughout the design and development of a complex project, many individuals within a firm may play a role in shaping the form and function of a building. As architectural firms transition and new firms are formed, or as individuals depart one firm for another, the intellectual property from the project becomes a topic of attribution concern.
Although the AIA Code refers to the actions of AIA member architects, it is important to note that there are specific Ethical Standards and Rules of Conduct, within the Code, related to attribution. The AIA National Ethics Council held such strong beliefs regarding attribution that Guidelines were formulated in order to recommend how member architects should make oral, written, or graphic presentation of creative work in which they were involved, in order to comply with the Code.
In a construction defect, professional liability, or attribution claim, it is important to begin an early dialogue with your expert. That expert can initially evaluate aspects of the claim as a consulting expert long before they must be named as a testifying expert. A seasoned expert is competent to study each aspect of the claim and bring you up to speed quickly and with relative ease. A seasoned expert will tell you what should be examined as part of the claim and why it should be examined. Having “been there before,” in private practice, they may also assist in formulating an affirmative defense.
1 Florida Statute: 61 G1-12.001(4)(a)
2 International Building Code – 2006 Edition; 106.1.3
3 The XL Insurance Contract Guide for Design Professionals, A Risk Management Handbook for Architectural, Engineering, and Environmental Professionals, 124; 2007.
Ron is a former Board member and National Vice President of the AIA. He was a hearing officer for four years on the AIA National Ethics Council and served on the Board of Directors of the National Fire Protection Association (NFPA) for six years.