Practical Considerations: What Is an Architect to Do?
Though case law and practical considerations may prevent an ability to escape the scope of potential claims, design professionals can engage in some practical considerations in an effort to reduce risk and avoid expanding potential for liability. Some practical considerations for the architect should be cautious in drafting and negotiating a contract, working on the project, and to the extent involved, during construction contract administration.
- Avoid creating third party beneficiaries to your contract agreements;
- Beware of other parties to whom an owner or client may expand contractual obligations and responsibilities (i.e., lenders, subsidiaries, affiliates, owner associations, etc.);
- Beware of statements concerning lender reliance in executing architect’s consent and assignment agreements;
- Limit rights to assign contracts and contract rights;
- Beware of what expands the provision and scope of duties to contractual strangers (i.e., contractual provisions that state that others may benefit from them; Lender’s Consents for Architects which create rights in Lenders and others, conduct in which the Architect may start to give direction to a contractor/subcontractor or in which the architect takes instructions from and does work for a contractor outside of the contract terms);
- Avoid contractual provisions that make references to or statements concerning relationships between design professional and contractor or other contractual strangers;
- Beware of conduct that may be seen as taking instruction from third party strangers to your contract (i.e., revising plans at the direction of a contractor or subcontractor; undertaking tasks at the direction of a contractor or subcontractor at the construction site);
- Beware of responding to and writing reports for third parties who are strangers to the contract (i.e., answering direct questions from subcontractor outside of normal chain of communication, analyzing plans or construction methods for lender) ;
- Beware of representations or warranties intended for reliance by third parties;
- Beware of project work that expands duties and obligations beyond written contract;
- Beware of language of permit applications;
- Asserting control over work of contractors, including directing contractors on work; and
- Use AIA documents, unmodified, for its protective language.
Beyond this, one must also be very mindful of statutory provisions that may establish duties and causes of actions on behalf of third parties, including the general public. No amount of contract drafting can escape those statutory terms.
Although there are varying methods being used in U.S. jurisdictions to avoid application of the privity of contract defense, it is clear that courts are becoming more likely to expand available causes of action against design professionals without privity of contract. The architect should seek legal counsel to seek advice concerning the laws of a specific jurisdiction in which they practice to determine what, if anything, can be done to protect against potential liability, such as including language in a contract to clarify the relationships and duties of the parties involved. At the very least, the Architect’s counsel should be aware of the law in the jurisdiction in which they practice so they can properly defend and evaluate cases based on the growing trend of architects being less strangers to claims and the courthouse when there is no privity of contract.