Should they do so, they would raise their standard of care when providing their professional services. In those cases, especially when they are in a dispute (such as in litigation), the expectation is that their practice of architecture or engineering is error free, amounting to perfection. Just like other professionals, such as lawyers and doctors, they are not expected to be perfect as well.
AN UNINSURABLE PROFESSIONAL EXPOSURE
While all architects and engineers must meet a standard of competence, claiming "expert" status implies a higher level of service than their peers, meaning they'll be judged by that higher bar, not just the general standard, and they could face claims for anything less than their bold promises. This potentially increases liability by promising more than the typical reasonably competent design professionals, creating an uninsurable exposure for perfection, and making them subject to higher scrutiny in disputes and legal cases where their knowledge is tested against their own or imposed representations.
Using words like "expert," "best," or even "leading-edge" in contracts or marketing materials (such as websites or proposals for new projects to potential clients) can transform the standard of care from reasonable competence to a commitment to perfection, which is often impossible and uninsurable. When a design professional’s client drafts a contract, this can easily happen.
The Design Professional warrants that it has the expertise to perform the scope of services contemplated by the Owner, and Owner relies on promised expert qualifications.
Unfortunately, professional associations such as the Design-Build Institute of America, in its “Standard Form of Agreement Between Design-Builder & Design Consultant,” DBIA Document No. 540, 2.4.2, which states:
The design professional shall have the necessary expertise and experience required to supervise the Services.
Also, be on guard for the professional association called the ConsensusDocs—in its Standard Form of Agreement 400, 2.2 which states:
The Design Professional represents that it possesses the requisite skill, expertise, and licensing to perform the Services.
A PROFESSIONAL LICENSE
Licensed architects and engineers can call themselves an expert, and they are legally protected to do so as professionals responsible for the public health, safety welfare, but in doing so it should be done with caution. The term "expert" also implies deep specialization, and they can often brand themselves as experts in specific areas (e.g., sustainable design or historic preservation) while maintaining a broad knowledge base.
The license itself signifies a recognized certain level of qualifications, distinguishing them from others who design buildings but lack this credential. The rigorous process of education, experience, and exams grants architects and engineers the legal right and societal trust to call themselves professionals, indicating a background in complex building design and safety.
While design professionals are problem solvers skilled at translating complex needs, budgets, and site conditions into functional, safe, and unique solutions, they still should not agree to call themselves as an “expert.” The bottom line is that design professionals should not describe their services within the context possessing a higher level, having an expertise.
A STANDARD OF CARE WITHOUT BEING AN EXPERT
It is well known that there are no perfect or error free project drawings and specifications. Therefore, it goes without saying, the best risk management is for architects and engineers to delete language suggesting that they are experts. Instead, the following standard care seeks to steer away from the higher level of scrutiny.
The standard of care for professional design services performed or furnished by the Design Professional under this Agreement will be the skill and care used by members of Design Professional’s profession practicing under similar circumstances at the same time and in the same locality. Design Professional makes no warranties, express or implied, under this Agreement or otherwise, in connection with Design Professional 's services. This Standard of Care under this Agreement shall not be modified notwithstanding any provisions elsewhere in this Agreement. Furthermore, Design Professional is an independent contractor at all times during the performance of its services, and any provisions in this Agreement, either expressed or implied, shall not create an agency or fiduciary relationship with its client. Because professional services cannot be perfect, the Design Professional’s client should anticipate that some changes and adjustments in the project will be required to correct errors and omissions in the documents, which are discovered in design or either during or after construction commencement.
About the Author of this Risk Management Building Block Article
As a risk manager for the last 20 years for the design profession, Eric O. Pempus, FAIA, Esq., NCARB has experience in professional liability insurance and claims, architecture, engineering, land use, law, and a unique background in the construction industry. Prior to risk management, he has 25 years of experience in the practice of architecture/engineering, and as an adjunct professor teaching professional practice courses at the undergraduate and graduate levels for 37 years at Kent State University’s College of Architecture & Environmental Design.
As a Fellow of the American Institute of Architects and AIA National Ethics Council 2021 Chair, he has demonstrated his impact on architectural profession. He has presented numerous loss prevention and continuing educational programs to design professionals since 2000 on topics of ethics, contracts, and professional practice in various venues across the United States and Canada. He is a former member and chair of his city’s Board of Zoning & Building Appeals for 24 years, and is a licensed architect, attorney, and property & casualty insurance professional.
His educational background includes a JD from Southwestern University School of Law, Los Angeles; Master of Science in Architecture from University of Cincinnati; and BA in psychology/architecture from Miami University, Oxford, Ohio.
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.