Most legal issues encountered in an architect's practice will be based on a surprisingly narrow group of legal concepts or what are called "causes of action": contracts, torts, and intellectual property circumstances. When you think of a contract, you most likely conjure a written document, with lengthy provisions and wherefores, heretofores, and herewiths. But a contract is both more and simpler than this. It is an exchange of promises between two or more parties. That's it. Whether it's "I promise to walk your dog, and you promise to pay me $20," or "I will design your house, and you promise to pay me quite a bit more than an Andrew Jackson," the basic premise remains the same. The law only comes into play for the parts of these promises that the law can enforce—which is to say, "Yes, you, defendant, did promise this."
Most business-contract disputes are settled through negotiation between the two parties. As with any close relationship, misunderstandings, miscommunications, or simply missing the mark will happen. Someone will fall short at some point. When this happens, first identify the problem early and address it. Second, negotiate a compromise. Nine out of 10 contract disputes will eventually settle, without court intervention. And that is the way our legal system is designed: to encourage settlement. Use a carrot or a stick, but understand that there is a middle ground to the dispute.
Architects are required to conduct endeavors in the same manner as any reasonably prudent businessperson would—but with an architect’s special training and knowledge—in the same or similar circumstances, and under the same facts. While the general torts concepts here hold true universally, your standard of care as an architect will vary depending on your jurisdiction and your facts. For example, whether you as an architect are liable for injury caused may depend on whether you were negligent (tort law), whether you violated your contract or any standard of care agreed upon in your contract (contract law), or on an implied warranty, which is a theory of strict liability. Under implied warranty, there is no comparison with what other architects would or should have done; rather, what matters is whether the architect, as an expert, delivered what the client, a non-expert, expected. If this all sounds complicated, it should. The duty imposed on you is not fixed. You can raise it. The law imposes a certain standard of care on you as an architect. However, whether you decide to vary or increase certain performance measures contractually, make promises about the quality of your services, or represent yourself as an expert in a specific building or construction methodology, you can inadvertently raise the standard of care that may work against you later.
Architects are specially trained, talented, and skilled. What this means is that if you are sued, a jury may impose upon you greater expectations. In short, a jury may very well be quite sympathetic to the injured, and less so to the highly skilled, highly educated architect. Sympathy plays a big part in torts cases.
Settlement is not an admission of liability. Sometimes settling a case outside of court is the most cost-effective way out of a dispute, even if you were minimally at fault, or, in your view, not at fault at all. Settlement agreements can contain strict confidentiality provisions, as well as specific statements that settlement will not be considered or construed as an admission of liability.
Think twice about certain things you may run across in your practice that give you pause. While it is neither free nor ideal, sometimes a quick call to your attorney can help you avoid larger, more costly issues in the future. Like designing a building, all the parts inform one another—what you expect to accomplish, the pitfalls you want to avoid, and how you work with other individuals. All have to be taken into consideration as a whole. —Terrence Canela, Esq.
Nothing in this article should be construed as legal advice. Consult your own advisors based upon your specific circumstances.