First, for comparison with other professions per se, here is a definition from Business Dictionary that is applicable to professional disciplines:
“Ethical or legal duty of a professional to exercise the level of care, diligence, and skill prescribed in the code of practice of his or her profession, or as other professionals in the same discipline would in the same or similar circumstances.”
The definition is further refined for architects practicing in different states or other jurisdictions, but the last clause – or as other professionals in the same discipline would in the same or similar circumstances – is included, in the same or similar wording, in most definitions and seems to have the greatest bearing on legal determinations of an architect’s performance. In other words, a court or other legal authority may decide an architect’s liability in a particular matter based on whether the architect exercised the same level of care that other architects would in the same or similar circumstances.
The reference in the definition above to code of practice – the Ethical or legal duty of a professional to exercise the level of care, diligence, and skill prescribed in the code of practice of his or her profession – appears significant, but that also is subject to comparison with the practice of other professionals. In other words, a court may value the opinions of other architects regarding the meaning or intent and application of a code of practice and to value those professional opinions more than those of laypersons when it comes to interpreting the meanings of statements, terms, and details found in a code of practice. So, while a layperson may find fault with the performance of Architect A based on the layperson’s own reading of part of a code of practice, the court would look instead to other architects for an assessment of Architect A’s performance. That may be frustrating for laypersons who want to ascribe blame based on their own interpretation of the architects’ code of practice, but the laypersons may find comparable situations in their own specialized experience or knowledge where they have found that others misread or misinterpret or misapply codes or instructions that apply to their own particular specialty. To a professional chef or baker or to a cook, the word cup conveys a precise quantitative meaning that may not be shared by someone who thinks of cup as loosely as a cup of coffee without reference to its size). The same words can convey different meanings to different readers depending on their experience and their understanding of the context in which the words are used.
The legal value of other professional opinions is clear when it comes to judging the performance of an architect. So, along comes a hired expert, a professional who brings an opinion about the performance of Architect A. It might be fairly simple if there were only one expert, but in many cases each side in a dispute may bring more than one expert to testify as an expert witness. So, if you are the judge or jury or arbitrator, how do you decide which expert you should believe (or perhaps doubt less than you doubt others). There you might consider how the expert’s qualifications relate to the matter at hand and the professional services in dispute. An expert who works in the same region as Architect A may have the benefit of familiarity with regional customs and conditions that may be unfamiliar to an expert from a remote location. Similarly, an expert who has worked on the same type of building as that which is the subject of the dispute may be more familiar with that type of building than an expert who has never worked on that type of building. Contractual matters may also be considered: an expert who has worked in similar owner-architect relationships with similar agreements may be more familiar with the conditions related to Architect A’s work than an expert who had only worked in different owner-architect relationships. For example, architectural services for a client who is a developer or a builder may be different from architectural services for an owner client who is neither developer nor builder. These contractual conditions deserve more detailed discussion; the AIA has developed different standardized agreements for different purposes, including different party relationships based on project delivery modes and also based on project size and scope from small, simple projects and services to large, complex projects. Further, private project conditions are typically different from public project conditions, where the latter may be governed by laws that dictate specific content in bidding and construction documents and also specific bid advertising and bidding procedures. In a legal dispute over Architect A’s performance on a state funded public project in a state with special laws related to documents for public bidding, an expert who is familiar with those conditions and regulations is likely to be more credible than an expert who has worked only on private projects that were not governed by public bidding laws. The types of services provided under Architect A’s contract or professional services agreement may also be considered in determining the credibility of an expert; while architects may provide a variety of services from feasibility studies to design to construction documents and construction administration, some architects specialize more than others, and some may actually limit their services to feasibility studies; in that case, their value as an expert would be greater when considering Architect A’s feasibility study services and may not be as valuable when considering Architect A’s construction documents or construction administration services.
The next question for the expert relates to the breadth of the standard of care. What performance can reasonably be said to fall within or outside the standard of care? Reasonableness is important, because virtually every architectural project is unique and is also an accumulation of thousands of decisions from large scale overview decisions to almost minute decisions of a fraction of an inch or a tiny fastening detail. An expert must be able to recognize that Architect A’s work may differ from his or her own work and still fall within the standard of care, usually by exhibiting a level of care, diligence, and skill consistent with that provided by the expert or that the expert knows would be provided by other architects in the same or similar circumstances. The expert can draw on his or her own personal experience and/or firm experience and also awareness of services provided by colleagues or even competitors. Regarding competitors, while some architects may view competitors as bad guys when it comes to getting work (i.e., landing commissions or projects), the role of the expert is different, and the expert should recognize the validity of competing architects’ competent work and the weakness of incompetent work. As an architect standing up for professional conduct, the expert must recognize the focus of his or her inquiry, and judgment must be objective and not personal; services can be criticized where appropriate, but Architect A should not be subjected to critical personal attacks by the expert. The expert should recognize that circumstances change over time and differ from project to project; Architect A is likely challenged to provide the same level of services on every project, and some variation in the level of services should be expected. The question for the expert is, considering all circumstances at hand, did Architect A provide services that met the standard of care – services that were consistent with the level of care, diligence, and skill that would be applied by other architects in the same or similar circumstances. There is clearly a lot of room for an affirmative answer, knowing the challenges and the breadth of acceptable approaches. If, on the other hand, Architect A clearly dropped the ball and did not provide services that were consistent with the level of care, diligence, and skill that would be applied by other architects in the same or similar circumstances, the expert can communicate that. It is often the case that Architect A’s failings on a project are limited to specific services, while other services on the same project may meet the standard of care.
Compared to the reasonableness outlined above, it would be unreasonable for an expert to find fault or condemn Architect A based on Architect A’s personal qualities or based on a “mountain of minutiae” approach to evidence, fabricating a story from little bits of information lifted from their context. It would be unreasonable for an expert to present a standard of care that is so narrow that it would fault not only Architect A but also numerous other architects providing services in similar circumstances. As an extreme example, Architect A’s use of the term “control joint” in brickwork may be questioned where current technical thinking indicates the term “expansion joint” is more appropriate for the same joint; but for terminology, they are the same. It would be unreasonable to conclude that Architect A failed to meet the standard of care by using one or the other of these terms while other architects tend to use them interchangeably. On the other hand, if Architect A failed to include such joints in brickwork to accommodate thermal movement (and cracking resulted) where other architects would recognize the need for such joints and include them, even in differing layouts but with the same or similar good result (no cracking), then Architect A may have failed to meet the standard of care with respect to crack control in brickwork. Still, consideration of other factors may lead to a different conclusion regarding Architect A’s performance; the question of level of care, diligence, and skill must be answered.
Some would argue that LEED and similar sustainability and green building initiatives have changed the standard of care. Actually, the rise and growing predominance of these initiatives have changed architectural practice across the profession and have thus changed what architects must do to meet the standard of care. Building design standards have changed, but the standard of care has remained the same: do as other architects would do in the same or similar circumstances; if they now do their work differently, you should also do your work differently.
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