Most design firms market and promote themselves, at least to some extent. This can come in the form of physical materials such as brochures, or through online vehicles such as websites and social media platforms. Even proposals for services can be considered marketing materials.
Regardless of which mediums are being utilized for marketing, design firms must choose their words wisely. Statements made on physical marketing materials, the internet, and proposals for services can inadvertently elevate a firm’s standard of care.
For example, look at the following statements: 1) We are committed to going above and beyond to meet the needs of our clients; 2) We pride ourselves on providing top-of-the-line services at all times.
These statements could arguably be interpreted as the design firm promising a standard of care that is greater than the common law standard of care, which is of course: the ordinary skill and care usually exercised by members of the profession under similar circumstances, at the same time, and in the same or similar locality.
Neither “going above and beyond” nor “providing top-of-the-line services” are required by the common law standard of care. However, a design professional who agrees to a higher standard of care in a contract will generally be held to that standard by a court of law.
This is how problems can arise. A contract might state that marketing materials, including proposals and websites, are incorporated by reference into the contract. Therefore, a higher standard of care could be imposed by the incorporated materials.
Further, even if nothing is explicitly incorporated by reference, project owners might argue that they relied on statements on a design firm’s website, social media post, proposal, or other marketing materials when choosing to hire the firm. If a court buys that argument, the design firm would be held to the elevated standard contained in such statements. This creates a serious dilemma because professional liability policies will generally not cover claims for breaching an elevated standard of care.
Of course, not all courts will necessarily buy the argument that a statement on a website creates a promise of a higher standard of care. However, it is best to simply avoid being in that situation altogether. It is certainly understandable that design firms want to market themselves well, but marketing tactics that potentially raise the standard of care are not worth the risk.
A good risk management practice for design firms is to periodically review their websites, social media activity, and other marketing materials to make sure there is nothing that could potentially be construed as a commitment to a higher standard of care. If a design firm finds any statements that they are unsure about, they should seek the advice of their insurance agent and/or legal counsel.
About the Author
Mike Pettit is in his second year as an A/E Risk Manager. Prior to his current role, he worked in personal lines.
Mike received a bachelor’s degree in risk management & insurance from Florida State University in 2019, and a Juris Doctor from Ohio Northern University Pettit College of Law in 2023.
The above comments are based upon DesignPro Insurance Group’s experience with Risk Management Loss Prevention activities and should not be construed to represent a determination of legal issues but are offered for general guidance with respect to your own risk management and loss prevention. The above comments do not replace your need for you to rely on your counsel for advice and a legal review, since every project and circumstance differs from every other set of facts.
Disclaimer: The viewpoints expressed in this article are those of the author(s) and are not necessarily approved by, reflective of or edited by other individuals, groups, or institutions and this article is an expression by the author to generate discussion and interest in this topic.