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Conclusions and Recommendations

When a design professional is charged with a breach of fiduciary duty, it faces heightened litigation expenses, a risk of being taken beyond its errors and omissions insurance protection, the potential for a punitive damages award and community reputation issues. In all probability, the designer's problems are a result of not adhering to relatively simple contract drafting precautions. The designer's signing whatever draft written agreement the client presents, without carefully evaluating and possibly modifying it, is fraught with legal peril.

The architect or engineer in virtually all professional undertakings is only obligated to satisfy its typical professional standard of care, not a higher duty.

A designer who is categorized, legally speaking, as a "fiduciary," probably does so because it failed, on some level, to protect itself from a client's contractual overreaching. Don't be a victim of the "fiduciary" label. Pay attention at the contracting stage, and protect yourself on paper, and seek and obtain legal advice on your contracts.