The Standard of Care:
A Process Based Model

In a world of rapidly-changing design options, project objectives, and design tools, the standard of care for architects is best promoted, elevated, and defended by focused and strategic process management. Translated more simply, this means the process of information and communication management matters as much, or more, to a successful architectural practice as does the technical design itself.

From the perspective of practice success, client satisfaction, and risk management, a process-based model draws upon and acknowledges the reality that perfection is rarely, if ever, achieved in design and should not be expected by either clients or the architects themselves. Fortunately, it is not required by the law. For example, California law expressly disclaims any absolute requirement of architectural success and provides:

An architect is not necessarily negligent just because [his/her] efforts are unsuccessful or [he/she] makes an error that was reasonable under the circumstances. An architect is negligent only if [he/she] was not as skillful, knowledgeable, or careful as other architects would have been in similar circumstances. [11]

Under this and similar standards, performance and the standard of care can best be explained and justified by reference to “knowledgeable” and “careful” planning and communication (e.g., process management). Where ambiguities, omissions, and even errors do occur, reference to a thoughtful and strategic management process which meets and exceeds what others do (i.e., the issue was not the result of neglect, apathy, or incompetence) is the best means to demonstrate and validate the professionalism and performance of the architect.

A process-based practice model has multiple benefits for architects:

  1. At its core, a process-based model seeks and is built on a common and confirmed set of client expectations and objectives. As such, it leads to client satisfaction, project success, and economic prosperity.
  2. The design professional insurance industry reports that more than half of all claims against design professionals arise almost equally from technical design errors and non-technical practice management issues, rather than technical errors in design. [12] Process management focuses on the key, non-technical risk drivers.
  3. Ultimately, many architects are “team leaders.” Leaders of their internal teams, teams of consultants, and often even the “leader” of the project as a whole from programming, to design, and through construction. As such, they cannot be everywhere at once and with each team member at each critical juncture. Process management establishes a framework to guide each “team” through the project, regardless of the presence of the watchful eye of the lead architect.
  4. Strategically applied and adapted, process management reduces both technical errors and non-technical failures.

The “PCAD” Model

The development of project and practice specific procedures and tools can and should be based on the application of four fundamental and sequential building blocks. They are:

  1. Procedures. Successful architects can and should have core project types or sectors which dominate major portions of their practice. Generally and within specific project types, architects should have standardized procedures and tools to guide them as a default. In many ways, this is the equivalent of the AIA contract documents: a great reference and starting point, but one which must and should be adapted to the specific project.
  2. Contract. While internal procedures are a solid basis for good design practices, there are many possible variations. With each variation comes the potential for a misunderstanding with the client. Clients often have (or later claim to have had) different expectations. Consistent with these “misunderstandings”, approximately two-thirds of all claims against architects are brought by clients. [13] While unfortunate, the good news is that these misdirected expectations can often be avoided by the Service Agreement with the client. To that end, contracts which best define and secure the standard of care in this rapidly-evolving world will include:
    1. Defined and achievable goals/objectives/priorities, along with the relegation of other concerns;
    2. Project assumptions and caveats;
    3. Process and sequencing of project development; and
    4. Obligations of each party, individually and collectively, within the process and sequence.
  3. Adapt. “Standard” procedures and practices are only a starting point. They must be adapted to meet each project’s unique demands and contractual commitments. This applies equally as much at the inception of the project as it does during the evolution of the project. Although standard models and procedures are fundamental building blocks for consistent practices, they must be strategically tailored to each project.
  4. Document. Many architects are tremendous communicators. Unfortunately, such communications are too seldom documented and are, instead, left to a presumed consensus which often devolves to divergent recollections. With all of the immediately accessible tools for written communication which are available today, there is really no excuse for this. Effective process management architects will prioritize and commit themselves to consistent and effective documentation, with particular emphasis on the following:
    1. Assumptions;
    2. Priorities, pros/cons, risks;
    3. Process/sequence concurrence;
    4. Milestone concurrence; and
    5. Internal evaluations versus external representations.

With this as a background, the “PCAD” (Procedure/Contract/Adapt/Document) model can be applied with specific background, analysis, and strategic advice and tools to each of three categories which dominate the evolving architectural practice. They are:

  1. Innovative Products and Processes.
  2. Sustainable Design.
  3. Technical Design Tools and Structures (BIM, IPD, etc.)

A Framework of “Informed Consent”

On a number of levels, much of the PCAD model is predicated on a more developed level of informed consent or client concurrence in the design and construction process and decision making. After all, it is the client’s project and as the number of significant project variations proliferate, the client’s informed concurrence becomes all the more critical lest they later second guess a discretionary assumption or decision. Communication, contracts, and documentation are the keys to this process.

As anyone who has been to a medical office or emergency room in the last ten years can attest, a multitude of waivers and releases based on the concept of “informed consent” are inherent in the medical field. In fact, all fifty states have endorsed the concept of informed consent in the medical field such that it has become a part of each state’s statutory code in one way or another. While design professionals have not received equal legislative endorsements for the use of informed consent, the concept is no less applicable there both as a part of fostering a positive and well-informed client relationship and ultimately avoiding claims.

Generally speaking in a professional service context, “informed consent” is defined as “the agreement by the person to a proposed course of conduct after the [professional] has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” [14] Drawing upon the multiple treatises and advisory codes for informed consent in various professional fields, a proper checklist for an effective informed consent would be:

  • Project description;
  • Proposed or recommended action or approach;
  • Goals, purposes, and benefits of approach;
  • Risks and consequences;
  • Feasible alternatives with either a comparative evaluation or a statement that such comparison will be provided if requested. [15]

For purposes of the design community, the latter three elements are the most important and the steps too often omitted or resigned solely to oral communications which are often then left to varying recollections or denials. Accordingly, documentation becomes the key.

For obvious reasons, “informed consent” is most definitively established by a document signed by both parties. However, this is not always a practical reality on every point and often the real key is to demonstrate that the client has been adequately informed and implicitly gave their consent by proceeding with the project. For this reason, it remains in the architect’s best interests to play the role of project “historian” as much as possible so that an adequate record can be created through project memorandum or meeting minutes with either a process for counter-signature or an invitation to report any discrepancies or disagreements. There are two important caveats to this approach. The first is that for purposes of most contacts, any such memorandum or understanding which precedes the actual agreement becomes ineffective if not included in or referenced in the agreement itself under either the common law “parole evidence” rule or a contractual integration clause, both of which provide that any pre-contract representation or agreement is void if not included in the agreement itself. The second is that the effect of post-contract documentation can be muted, but not necessarily defeated, by contract clauses calling for all variations in contract terms to be in writing.