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RE: architects as agents: questions

Jul 22 '13 29 Last Comment
jmanganelli
Jul 22, 13 12:47 am

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests.

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?

 

The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not.

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

 

Thoughts and references are greatly appreciated.

 

vado retro
Jul 22, 13 8:59 am

architects don't oversee construction of a building and is reviewing shop drawings for design intent only. as far as being an agent for the people, if a building is given a construction permit and eventually a c.o.e. then any possible objections to an ugly building being built (haha)or unsafe building being built should have been vetted through the proper channels.

Miles JaffeMiles Jaffe
Jul 22, 13 9:39 am


If you're talking about social responsibility, this has been all but abandoned by architects and is a reflection of cultural values. If you're talking about liability, I'm pretty sure it ends at health and safety - code compliance - although anyone can be sued for anything by anyone at anytime. 


curtkram
Jul 22, 13 9:49 am

i don't know when an architect would actually be able to act on an owner's behalf.  like power of attorney?  i don't work on those projects.  either the owner themselves, an authorized agent of the owner (if the owner is something intangible like an REIT) or property management/developer type company acts on behalf of the owner.

everyone is subject to legal liability.  even if you design a building to meet code, a lawyer can say it doesn't meet whatever practice is common for that area, and the lawyer would be right, because judges are lawyers and lawyers write laws, and none of them are really going to want to read the building code and learn how buildings go together.  if something goes wrong, the owner, architect, contractor, subs, and everyone else can be held liable. 

you can't 'assign' liability either.  i think it's somewhat common for architects, as well as other trades, to include a part in a contract that says something to the effect 'we can't get sued if bad stuff happens' or 'in the event of a bad thing happening, it's the contractor's fault and you should only sue them.'  just because that's in a contract doesn't make it enforceable, and everyone ends up in court or in arbitration anyway.

architects have a responsibility to public health and safety.  if you intentionally, or negligently, do something that goes against that i suppose your license could be revoked.  i'm not sure they actually enforce that in practice.  i've never had much of a desire to test it.

regarding ugly buildings, i don't think you could get sued.  there is a thread somewhere on the forums here about a house that was built on top of a mountain, and you can see it from the valley.  there was a deed restriction that said something to the effect that you can't mess up the view, and there are locals who want it bulldozed.  or something like that.  there could be a case where the house is demolished at the owner's expense because some people find it "ugly," which would be expensive.  if that happened, i wouldn't be surprised if the owner tried to recoup some of that cost by going after the architect, but i think that would be hard to win.

i'm not sure "injuring culture" is a thing that happens.

bklyntotfc
Jul 22, 13 10:00 am

Your role as 'agent of the people' is stated on your architectural license, and in the laws of your state that regulate that licensing.  Basically they say that architects have a legal responsibility to protect the public welfare.  Public welfare means designing buildings meet the building code, zoning regulations, etc.  Public welfare does not extend to matters of taste (unless they are written in to law, i.e. landmark/preservation regulations).

In your first example, I  a licensed architect is obligated to refuse to design a building that doesn't meet code.  On matters of code/zoning, owners don't get to tell us to ignore the law.  If they don't respect that, then the architect should fire the client.

In your second example, the architect/owner get to do whatever they want.  There are poorly conceived modern buildings, but also examples where a contemporary  building in an historic setting is done well and is amazing.  This has more to do with owners hiring good/bad architects than with any style being inherently good/bad.

jmanganelli
Jul 22, 13 10:10 am

thank you for the insights!

jmanganelli
Jul 22, 13 10:24 am

does the architect's legal obligation to protect the public welfare expose the architect to any more liability than the contractor?

jmanganelli
Jul 22, 13 10:54 am

it sounds like you are all saying the architect has no more legal liability than the contractor.  and that while technically the obligation to protect the public welfare may determine whether an architect's license is in jeopardy, it does not increase the architect's liability to be more than that of the contractor. 

vado retro
Jul 22, 13 11:03 am

listen to the schiff hardin lectures from uic.

bklyntotfc
Jul 22, 13 11:19 am

a contractor is not responsible for meeting the building code, zoning, etc.  The contractor is responsible for building what's shown in the construction documents.

Where I live, and I believe everywhere (at least in the US), even if the building department reviews/approves your plans, they assume no liability or responsibility for whether the building actually meets code.

So you design a building that is approved by the city, and built by the contractor, and a neighbor complains, saying the building is too large.  The city looks into it and discovers that you messed up the FAR calculations and the building is one story higher than it should be.  That's the architect's problem.  The contractor would have zero liability (unless they built an extra floor that wasn't on the CD's), and the fact that the city/town approved the plans provide you with zero relief.

Or there's a fire, people die, and it's discovered that the width of the egress stairs was narrower than code required.  Again, that's the architect's problem, not the contractor's.

But usually things are more murky.  What if the roof leaks.  Is that because the architect's details and specifications were faulty, or because the contractor installed the roof incorrectly?  Or a mix of the two.  That's for lawyers to determine, and that's why you have liability insurance.

To lose your license, you've probably got to egregiously and repeatedly screw up in major ways - and probably be shown to have intentionally flouted the law.  You'd probably stop practicing well before then because you'd been sued for everything you had and/or can't get insurance anymore.

jmanganelli
Jul 22, 13 11:27 am

thanks for the clarification and examples, bklyntotfc.  very helpful.

thanks for the reference, vado.

won and done williams
Jul 22, 13 4:09 pm

I think you are getting hung up on the word, "agent" and "vendor." Are these contract terms that you are trying to clarify?

Your responsibility is to ensure that the design follows all applicable codes and meets design criteria as defined by the contract documents. Period. How it is built is the contractor's problem. As an example, I was working on a project that had absolutely massive doors that we wrote a performance spec for. Contractor submitted shop drawings that clearly did not meet the performance criteria. We rejected them. They resubmitted pretty much the same shop drawings. We rejected them again. We had a meeting with the owner and contractor. The contractor basically said straight up they were not going to build to the performance spec. We said we were not going to approve their shop drawings. The owner, wanting to get the project done, okayed the work of the contractor. If those doors fail as built, it falls on the owner and contractor.

More often than not with a solid set of contract documents, liability is clear. Errors and omissions in documents = architect; faulty/inadequate construction = contractor.

Miles JaffeMiles Jaffe
Jul 22, 13 4:56 pm

How it is built is the contractor's problem.

faulty/inadequate construction = contractor

Beyond errors and omissions, if your contract has anything to do with monitoring the work for compliance with the drawings or approving payment to contractors for completion of work, you have liability for how the building is built. In any case it is standard practice to name the architect in any suit over a building failure.

Your insurer - should you have one - may be as interested in hanging you out to dry as the opposition's attorneys. Typically the architect starts building a case against his own insurer as soon as he starts building a defense for himself.

This comes out of several experiences my father had: one where critical bolts clearly shown on the CDs were left out of steel roof framing in an industrial building that had a roof collapse (no injuries), another where wood frame townhouses that were later altered by owners had subsequent failures.

vado retro
Jul 22, 13 5:07 pm

this also brings up the question of how to set up a practice. if you hang out your shingle and work as a sole practitioner you have more exposure if you get sued. llc, is the way to go. have a business with no assets and you will have fewer lawsuits when it becomes clear there s no money.

bklyntotfc
Jul 22, 13 6:49 pm

vado - as licensed professionals, architects can be held personally liable when sued.  Setting up an LLC will not shield you from that at all.

An LLC will shield you from exposure not related to architectural liability - if an employee trips, falls down the stairs, and breaks their neck, the LLC's assets may be lost in a lawsuit, but you probably won't lose your home.  If you design a building that collapses, then your home may go by by.

Of course, this may vary state to state, but I think it's pretty universal in the US.

Miles JaffeMiles Jaffe
Jul 22, 13 7:25 pm

The corporate veil can be pierced unless of course you can spend enough to defend it.

If you don't have anything there's no point in suing you. Which isn't really a problem for many architects.

jmanganelli
Jul 22, 13 8:42 pm

thanks, all, for the great feedback.

won, you are correct that i'm hung up on the terms 'vendor' and 'agent'.  they do have legal definitions, and so these issues seem as though they should be more clear than they are.

bklyntotfc
Jul 22, 13 10:53 pm

miles - "The corporate veil can be pierced unless of course you can spend enough to defend it."

That's fundamentally incorrect.

There's nothing an architect can do that I know of to "defend" a corporate veil.  Our individual responsibility as a licensed professional cuts automatically cuts through those veils like a knife through butter.  There's nothing you can do...LLC, PLLC, S Corp, etc...to avoid the personal liability for your professional actions.

See AIA reference pdf here (look at entry at the top of the right column of page 1.

That's just the world we live in.

Miles JaffeMiles Jaffe
Jul 22, 13 11:33 pm

^ I was alluding to the fact that In legal action, the first one to run out of money loses. The idea that an architect could outspend a client on legal fees is at least theoretically possible. LOL

jmanganelli
Jul 22, 13 11:44 pm

thanks for the great reference

it seems the agent/vendor distinction is related but is obfuscating the issue. 

based upon your reference, there is a standard of professional competency and ethics to which the architect is obligated and liable, regardless of other business or legal considerations, that likely does not burden the contractor, and this holds true even if the architect is functioning as a vendor to the client and not an agent of the client.  so it's not the agent/vendor relationship so much as the licensed-professional vs licensed-or-unlicensed-non-professional distinction that matters. 

thanks for clarifying that

Quan Nyen Tran
Jul 23, 13 6:13 am

Did this forum really turned into an advertisement board?

God bless America with people suing each other. More money to people-loving architects and less to blood sucking lawyers !!!

vado retro
Jul 23, 13 9:49 am

yes if an architect is negligent they are resoonsible. see b101 3.6.1.2 though and find that arch is not responsible for.

won and done williams
Jul 23, 13 9:51 am

There is a awful lot of CYA in that paragraph that does not really explain the extent to which an architect is liable, i.e. are an architect's personal assets at stake if sued under an LLC? I'm still not clear on this and would discuss with a lawyer before assuming that liability.

vado retro
Jul 23, 13 10:00 am

just dont have any assets.

won and done williams
Jul 23, 13 10:09 am

Hey, I don't want any joker coming after my last $35, my '88 Volvo, and my torn leather Eames chair.

jmanganelli
Jul 23, 13 11:13 am

i've been working on a diagram that explores these issues, linked below.  i equate architects and contractors with center midfielders in soccer, because unlike other consultants or sub-contractors, architects and gc's/cm's tend to stay with the project from start to finish (with developer-led and contractor-led projects, this is more and more the case) just like center midfielders may roam the entire field managing the match.  however, i'm trying to make the point that, just like a center midfielder may focus or specialize more on managing offense or defense, the architect and the contractor are incentivized differently, and this incentive difference is based upon this difference between ... the legal burden of being a licensed professional versus not being a licensed professional.  You see, i thought the difference was vendor versus agent difference...and to a small extent it is.... but the reference material bklyntotfc linked to makes clear it is the licensed professional vs unlicensed professional that is the primary distinction of concern for my purpose.

this all may sound like, 'well duh, of course they're incentivized differently...'  but i'm trying to build an easily digestible, graphical argument for why the same services offered by the two parties can have different value and outcomes depending upon how the service provider is incentived --- this is meant as a counter to contractors offering pre-design services or coordination services and saying that the architect is unnecessary or of limited use for these services.  my albeit limited experience with contractors leading these services during design/build is that they are not incentived to develop a project brief tailored to the owner's needs or to be as thorough during coordination ---- thus the owner may get a building, but is it the building they really need??? maybe not --- likely not --- so the next question seems to be implied by the AIA document bklyntotfc referenced -- what is the legal definition of professional?  if states treat the businesses of licensed professional service providers differently, then what is the definition of such a professional?  and what is the difference between 'licensed professional' meaning architect/doctor/lawyer/engineer vs 'licensed professional' meaning licensed general contractor?  in fact, i've read that more service industries are developing licensing requirements as barriers to entry and to increase the perceived value of their services.  as more professions become licensed, how is it changing the legal landscape for professional services?

thoughts/critique welcome.

jmanganelli
Jul 23, 13 11:22 am

this one should be easier to read

curtkram
Jul 23, 13 1:29 pm

what you're calling offense and defense i think of as premeditated v. reactionary.  as architects, we think ahead.  all of our design is done on paper so we iterate and reiterate and think through how stuff will go together, so we head off problems before they become problems.  i should be able to read plans well enough to know if an HVAC duct is going to be occupying the same space as door or something like that.  Contractors jump in and build stuff, then tend to find the problems as they come up, and have to fix them.  they may have the HVAC duct installed without any clue where the wall is going to be, since the framers might not be showing up for another week.  contractors react to given site situations in a way that architects don't.

i suppose the incentive for a contractor to build cheap is that competitive projects are bid and tend to go to the low bidder.  they have to keep their cost below their competition to get the job.  rather than just be honest about what they think things will cost, they learned how to bullshit their way into change orders, so they intentionally underbid and make their money back later.  an honest contractor can't compete against a low bid from a change order artist, so we've almost created a system where a contractor has to be dishonest to keep their doors open.

in my area, a general contractor has to be licensed.  i don't know if that makes them "professional," but we both have lots of liability if something goes wrong, and typically we would blame each other for the problem. 

jmanganelli
Jul 24, 13 2:05 am

FYI, I also posted my question on AIA knowledge communities discussion site.  A Mr. Butters responded with a great post.  Here's the link.

 

http://network.aia.org/ConstructionContractAdministration/Discussions/ViewThread/?GroupId=73&MID=12472#bm7

shuellmi
Jul 30, 13 3:11 am

That's pretty nice of Butters.  I had him for Law for Architects at LTU, he's pretty gruff, but known for being generous with his time 

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