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Undertaking A “Fiduciary Duty”:
Crucial Legal & Professional Considerations For Architects

Michael M. Edwards, Esq., BYRON & EDWARDS, APC, Spring 2012

The litigation world for design professionals is exceedingly complex. While there is no surprise about lawsuits founded upon professional malpractice, or the breach of a professional services agreement against design professionals, concerns may arise when a design professional is also sued for the breach of a fiduciary duty. A "fiduciary duty" is the highest duty of trust and confidence recognized by law. A plaintiff suing on this theory derives substantial advantage, both psychological and tactical.  Any hint of conflict of interest or fraudulent behavior makes the breach of fiduciary duty claim very dangerous. The more skilled or specialized the design professional is and the more extensive one’s duties are, the greater the prospect of a fiduciary duty finding. The architect deemed a "fiduciary" probably failed to protect him or herself from contractual overreaching. This paper outlines litigation and insurance coverage issues, as well as key strategies to enable members to avoid the "fiduciary" label, especially at the contracting stage.

Michael M. Edwards is a Partner in Byron & Edwards, APC in San Diego, CA. His areas of concentration are in contract law, contract negotiation, construction litigation and professional liability, specializing in defense of architects and engineers.