There are two kinds of clients who insist in a contract that a design professional absolutely comply with laws, regulations, codes, ordinances, standards and a plethora of other business and design constraints. First there is the client who, perhaps with strained incredulity, asks “Do you mean to tell me that you do not intend to comply with the law?” Usually this is a client who does not understand that professional judgment requires a design firm to examine the applicable legal requirements and constraints and design in accordance with what is determined by the professional or through a government review to be applicable laws and other design requirements. Or it is a very sophisticated client—or more likely the client’s attorney—who is seeking to create a contractual obligation that cannot possibly be met. Having an automatic breach of contract or breach of warranty claim can provide a negotiation advantage if any problem occurs that might lead to a cost recovery effort by the client.
There are four perfectly valid reasons for not agreeing to absolute compliance. First, no design professional can possibly know or even come to know all of the laws, codes, ordinances, and regulations that may somehow apply to your current project. And even if you did, there may well be conflicts among them that you will have to reconcile. In addition laws, codes, ordinances and regulations are all subject to interpretation and change; compliance in design is often a matter of sound professional judgment and response to review comments. The fourth reason for not agreeing to absolute compliance: contractually guaranteeing that every existing law or other design constraint will be met is an uninsurable obligation.
The law—which does not have to be stated as a contractual obligation—requires a design firm to exercise reasonable professional judgment. If a design professional does not meet this legal requirement and if someone is harmed by being injured, experiencing a loss, or having property damage, the design firm can be held responsible because of its negligence. And it is this negligence in performing professional services that is covered by insurance.
Even with no mention of designing in compliance with codes or laws or other obligations, if there is an obvious violation of a clear building code or other know regulation, there might even be a finding of negligence per se—an act so clearly unreasonable that no further discussion of the standard of care is necessary.—The law, however, does not require that a design professional exhaust every available resource tracking down arcane statues and marginally applicable regulations.
The uninitiated client—the one who might naively assume that you do not intend to comply with “the law “simply because of your objection to absolute language—probably does not understand that “the law” does not always provide clear direction. There may be conflicts and contradictions between federal regulations and local ordinances. State law might be at odds with locally adopted codes and regulations. There might even be a conflict between applicable codes and voluntary standards such as green design and building certification programs that have been adopted into law. These conflicting design parameters and constraints may leave you with a contractual requirement you simply cannot meet.
So the goal is to find a less onerous approach to articulating whatever it is that your client has in mind. With the unsophisticated client it might be clear language that informs that client of the obvious regulations that will serve as the design reference and that the design will be in compliance with interpretations by code officials. Sometimes the best way to respond to the carefully crafted work of legal counsel is to alter it as little as possible. Carving out a path of least resistance—and preserving the attorney’s pride of authorship—can create a reasonable compromise.
Obviously eliminating absolute words such as “all laws” or “best effort” softens the requirement. Even referring to “applicable” laws or modifying “best” so that it refers to “the design professional’s best effort” can bring reason to what otherwise might be considered a guarantee.
Stating that you will exercise professional care in your efforts to provide a design that complies with those laws, codes, ordinances, and regulations that are in effect as of the date of the agreement and to respond to the applicable design requirements imposed by governmental authorities ties your duty to using existing codes and limits your risk to what is in effect or ordered at the time of design. In this way if codes or regulations, standards or certification programs change after the design is set, or if a code official changes an interpretation after construction begins, the risk to your firm in minimized and any necessary changes become additional services. What was an absolute and unreasonable obligation can become a way of getting paid for your efforts, without dispute, in the event you are required to implement changes to the design because of regulatory developments you can neither predict nor control.
Victor O. Schinnerer & Company, Inc. and CNA work with the AIA Trust to offer AIA members quality risk management coverage through the AIA Trust Professional Liability Insurance Program and Business Owners Program to address the challenges that architects face today and in the future. Detailed information about both these programs may be found on the AIA Trust website, www.TheAIATrust.com.