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They Made Me Do It! The Perils of Designing An Owner-Directed Code Violation

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They Made Me Do It!  The Perils of Designing An Owner-Directed Code Violation
By Paul E. Knupp, III, Esq. and Castell Abner, III, Esq., Lee/Shoemaker PLLC

Imagine you are an architect designing a new municipal office building and the procurement officer in charge of the project directs you to eliminate ADA-accessible ramps from your design for aesthetic reasons, or in the course of designing a middle school a school board official directs you to exclude intumescent paint from the exterior wall assembly detail as a cost-savings measure. The potential examples are endless, but the predicament for the design professional the same: what do you do when your client asks you for a design that in your professional opinion violates applicable law or creates a potential public safety hazard? 

On the one hand, if your client is the Owner, it is their project to do with what they will. But the AIA Code of Ethics and Professional Conduct Rule 2.101, for instance, provides that “Members shall not, in the conduct of their professional practice, knowingly violate the law.” If you’re asked to sign and seal a design that includes an element you “know” will violate applicable code once constructed, deciding to abide by your client’s wishes could jeopardize your license. While the design itself does not “violate the law” of course, this may not necessarily protect the designer of noncompliant construction from a disciplinary action or lawsuit. An Owner against whom an ADA (or state equivalent) enforcement action is brought will likely develop “selective amnesia” and blame the designer for the noncompliance the Owner directed.

Must you report such a direction to the AHJ at the risk of angering your client? The answer to this question involves a 3-step analysis:

  • Step 1: As a licensed design professional, you are under a duty to inform and advise your client if in your professional judgment you believe the client’s direction is likely to result in danger to the health, safety, property, or welfare of the public. Is the issue presented likely to result in danger to the health, safety, property, or welfare of the public?
  • Step 2: Advise your client of your professional opinion that the issue presented is likely to result in danger to the health, safety, property, or welfare of the public. If your client heeds your advice and abandons their original direction, there is no need to report. If after considering your advice your client still wishes to pursue their original direction, then move on to step 3.
  • Step 3: If your client declines your advice and you believe in your professional judgment the direction is likely to result in harm to public health, safety, property, or welfare, then and only then must you report that direction to the AHJ.


Regulations in all the local jurisdictions include similar language outlining the architect’s duty related to Owner-directed changes:

Maryland

COMAR 09.21.02.01C(3) – Rules of Conduct for Architects

If, in the course of the architect’s work on a project, an architect becomes aware of a decision taken by the architect’s employer or client, against the architect’s advice, which violates applicable State, county, or municipal building laws and regulations and which will, in the architect’s judgment, materially affect adversely the safety to the public of the finished project, the architect shall:

  • Report the decision to the local building inspector or other public official charged with the enforcement of the applicable State, county, or municipal building laws and regulations;
  • Refuse to consent to the decision; and
  • In circumstances when the architect reasonably believes that other decisions will be taken notwithstanding the objection, terminate the services with reference to the project.

       COMAR 09.23.03.01 – Code of Ethics for Professional Engineers

A licensee shall make every reasonable effort to protect the safety, health, property, and welfare of the public. If the licensee’s professional judgment is overruled under circumstances when the safety, health, property, or welfare of the public is endangered, the licensee shall inform the employer or client of the possible consequences.

District of Columbia

17 D.C.M.R. § 3411.7 – Rules of Professional Conduct for Architects

If, in the course of his or her work on a project, a licensed architect becomes aware of a decision made by his or her employer or client, against such licensed architect’s advice, which will result in a violation of any applicable federal, state, or municipal building laws or regulations and which will, in the licensed architect’s judgment, materially, and adversely affect the safety to the public of the finished project, the licensed architect shall:

  • Report the decision to the local building inspector or other public official charged with enforcement of the applicable federal, state, or municipal building laws and regulations; and
  • Refuse to consent to the decision.


17 D.C.M.R. § 1517.4 – Rules of Professional Conduct for Professional Engineers and Land Surveyors

The licensee shall, at all times, recognize the primary obligation to protect the public in the performance of his or her professional duties. If the licensee’s engineering or land surveying judgment is overruled under circumstances where the safety, health, and welfare of the public are endangered, the licensee shall inform the employer, the contractor, and the appropriate regulatory agency of the possible consequences of the situation.

Virginia

18 VAC 10-20-690 – Standards of Practice and Conduct for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects

The primary obligation of the regulant is to the public. The regulant shall recognize that the health, safety, and welfare of the general public are dependent upon professional judgments, decisions, and practices. If the judgment of the regulant is overruled resulting in circumstances when the health, safety, or welfare of the public is endangered, the regulant shall inform the employer, client, and appropriate authorities in writing of the possible consequences.

Even if a knowingly unlawful design does not trigger a reporting requirement, it is a situation design professionals should avoid, for at least two reasons. First, any incremental increase in the risk of injury posed by the noncompliant condition exposes a design professional to broader civil liability for negligence. In a personal injury lawsuit, courts are extremely reluctant to dismiss a design professional defendant from litigation if the plaintiff has any colorable theory of why the design poses a safety risk—in spite of the legal standard—and a clear code violation makes the theory much easier to establish.

Second, an Owner who directs a design professional to prepare a non-ADA compliant design will not hesitate to join the design professional for indemnification of the retrofit costs to correct the issue.  While some federal courts refuse to recognize such claims—on the theory that an Owner’s duty to ensure ADA compliance is “nondelegable” and therefore nontransferable by way of indemnity—this is not a defense to a direct claim brought by the plaintiff who might pursue a claim against the owner and design professional jointly.

As a design professional who seeks to meet your clients’ preferences, how do you balance your competitiveness and reputation for being a good ‘team player’ against these risks to your license and balance sheet?  An important first step is to review and update your standard contract terms to make clear that your services will be based on your professional judgment, and not the whims of the client to disregard applicable codes and laws or the willingness of an AHJ to “bend” the rules for an assertive Owner.

Another good practice is to advise your client of your concerns – first in conversation, “previewing” your concerns and suggesting that, if they insist on proceeding contrary to your professional judgment, you will be compelled to put your concerns in writing to protect your license to practice. If your client persists, the next step is to put your opposition to their request, and the specific reasons for it, in writing, and insist your client respond in writing rather than in person or by phone. In the context of a claim by an owner on the heels of an AHJ enforcement action, this written communication alone can trigger certain additional legal defenses and constitute powerful exonerating evidence for the design professional.

Failure to document your objection will mean the absence of critical evidence in your defense if a claim ensues—as witness’ memories of unwritten communications have a way of conveniently fading and evolving. If the element in question presents a public safety danger, put your refusal in writing and resist any pressure to acquiesce.  You may lose the client, but your license (and professional integrity) will live to design another day. 

Paul E. Knupp, III and Castell Abner, III are lawyers at Lee/Shoemaker PLLC, a law firm devoted to the representation of design professionals. The content of this article was prepared to educate related to potential risks but is not intended to be a substitute for professional legal advice.


Lee/Shoemaker PLLC is an Educational Program Sponsor of AIA Potomac Valley.

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