AIA CODE OF ETHICS AND PROFESSIONAL CONDUCT ADVISORY OPINIONS

Transcription

AIA CODE OF ETHICS AND PROFESSIONAL CONDUCT
ADVISORY OPINIONS
• Advisory Opinion No. 1
If you have any questions, please contact AIA’s Office of The General Counsel at 202/626-7311.
January 1999
AIA CODE OF ETHICS AND PROFESSIONAL CONDUCT
ADVISORY OPINIONS
Table Of Contents
No. 1 - Misleading Prospective Client - Uncompensated Design Services
No. 2 - Conflict Of Interest - Referral Fees
No. 3 - Conflict Of Interest - Endorsements
No. 4 - Discrimination Against Employees Based On Gender
No. 5 - Replacing Another Architect - Supplanting
No. 7 - Conflict Of Interest - Manufacture Indemnification To Architect
No. 8 - Accurately Claiming Credit For Design Work; Recognizing The Professional Contributions Of
Business Associates
Code of Ethics and
Professional Conduct
Advisory Opinion No. 1
Misleading Prospective Client - Uncompensated
Design Services
Questions
Q1: Is it unethical to provide "free" design
services for the purpose of securing a
commission?
Q2: Under the facts presented here, did
either architect intentionally or recklessly
mislead the prospective client about the
results that could be achieved through the use
of the architect's services?
Reference
Code of Ethics and Professional Conduct,
Cannon III, Obligations to the Client
Rule 3.301
Members shall not intentionally or recklessly mislead
existing or prospective clients
about the results that can be
achieved through the use of
the members' services, nor
shall the members state that
they can achieve results by
means that violate applicable
law or this Code.
The Code of Ethics and Professional Conduct
applies to the professional activities of all
Members, Associate Members, and Members
Emeritus of the AIA.
Facts
Architect A is seeking a commission from a
prospective client for an office building in
competition with Architect B. The owner has
never engaged an architect before. On the
basis of information obtained in one
National Judicial Council
discussion with the owner, Architect A
prepares and presents to the owner six
unsolicited rough perspective drawings
illustrating alternative design approaches to
the project. The architect does not claim that
the sketches are buildable design solutions;
rather he presents them as ideas of directions
that could be pursued in preparing a
schematic design.
Architect A is not
compensated for this service.
In the course of an introductory discussion
with Architect B, the owner requests the
architect to submit drawings illustrating his
ideas for the project. No fee is offered for
this service. Architect B prepares plans,
sections, elevations, perspective renderings
and a model of a building for this site. The
architect has only preliminary information as
to the owner's program, schedule, budget and
the limitations of the site. In presenting his
work to the owner, the architect implies,
without directly stating, that the particular
design could be built, and does not tell the
owner that significant further information
would be required before any decision could
be made to proceed to the design
development phase on the particular design
presented.
The owner awards the
commission to the Architect B.
Discussion
The initial question treated in this opinion
concerns the offer of uncompensated design
services as a method of soliciting work. It
has never been considered unethical for an
architect to provide gratuitous services for
unselfish civic or charitable motives.
However, prior to 1979 the Institute's Code of
Ethics and Professional Conduct prohibited
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Code of Ethics and
the contribution of free design sketches,
models or other architectural services for the
purpose of securing a commission, except
through design competitions. That code was
withdrawn when it became clear that several
of its provisions, including the rule against
"free" services, were open to challenge as
unlawful restraints of trade. The present
Code contains no such prohibition on free
services.
Federal law protects consumers, including
purchasers of professional services, from
unreasonable restraints on free and open
competition among service providers. It is
the view of those who enforce these laws that
free sketches serve either to reduce the
overall cost to the owner for the architect's
services or to advertise the architect's abilities
to a prospective client. These are lawful
competitive reasons to provide free design
services, so long as the prospective client is
neither deceived nor misled as to what he is
getting or can expect to receive if he retains
the architect.
Under the facts stated above, it makes no
difference that Architect A supplied sketches
without being asked to do so while Architect
B. acceded to a request from a prospective
client. In either case, whether or not to supply any level of service without
compensation is a business decision for
individual architects to make. Under the
present Code of Ethics and Professional
Conduct, the nondeceptive use of free design
services to procure a commission is not
unethical.
The more difficult question presented by the
facts here is whether Architect A or Architect
B intentionally or recklessly misled the
owner by the manner in which the free
services were presented.
Whether an
architect's solicitation practices in any
particular case are unethical will depend on
the facts involved. There is no bright line
dividing conduct in this area that is fair and
ethical from that which is deceptive and
unethical. The inquiry must focus on the
prospective client's probable understanding of
the information provided to him considered
in light of his sophistication and experience
in selecting architects.
Turning to the specific circumstances set
forth above, Architect A presented a variety
of ideas, informal in nature, in a manner that
would be unlikely to cause a prospective
client to think that any of them was a specific
design proposal. Moreover, the Architect
was careful to make it clear that the drawings
were simply ideas that could be pursued in
preparing a schematic design.
Architect B, in contrast, prepared a single
integrated design scheme in multiple
drawings in addition to a model that
obviously was the result of a considerable
thought and effort. The client had no basis to
understand that this may not have been an
achievable design solution. The architect had
no established course of dealing with the
prospective client. Moreover, the client
lacked experience working with architects
and therefore had no basis to understand the
level of knowledge about a project that an
architect would require in order to properly
prepare a schematic design solution.
A person who lacks experience in dealing
with architects or the schematic design
process would reasonably conclude that an
elegant and detailed presentation of a single
design scheme is intended by the architect to
describe a building that meets the owner's
requirements and can be built.
The
circumstances set forth here strong indicate
that Architect B intended for the owner to
believe that the design the architect presented
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Code of Ethics and
was an actual solution for the owner's project.
The architect implied that the design could
be built as depicted and did nothing to warn
the owner that significant changes might have
to be made. In this case, where that architect
did not have the detailed information upon
which to make reasonable judgments whether
the project could be realized within the
applicable constraints of budget, program,
schedule, site limitations, regulatory and
other conditions, the architect has an
affirmative duty to so advise the prospective
client. An architect acts recklessly if he leads
a prospective client to believe that a
presentation is a proposed design solution
when he has insufficient information to determine whether his design is adequate.
would be pertinent in another specific case.
This opinion is for information purposes only
and should not be construed as expressing
any opinion on the ethics of specific
individuals.
June 30, 1987
Conclusion
A1: No. Neither Architect A nor Architect B
acted
unethically
in
providing
uncompensated design services for the
purpose of procuring work from the
prospective client.
A2: Architect A did not act unethically in
presenting alternative approaches to the project that he indicated were ideas that could be
pursued to prepare schematic plans.
Architect B violated Rule 3.301 under the
facts stated above by presenting what
appeared to be a specific solution and
implying that the particular plan could be
built without having all the facts that would
be required to prepare a viable schematic
plan. The method of detailed presentation
would likely mislead an unsophisticated
client to conclude that a fully thought out
plan was being proposed.
Note: This opinion is based on data submitted to the National Judicial Council and
does not necessarily include all the facts that
3
Code of Ethics and
Conflict Of Interest – Referral Fees
Questions
Facts
Q1: Did the architect act unethically in
accepting a referral fee from the contractor?
An owner contacts an architect who has done
professional work for the owner in the past
but is not currently engaged on any project
for the owner. The owner asks the architect
to recommend a contractor for a project that
the architect did not design. The architect
provides this service without compensation in
the interest of maintaining a good relationship
with the owner. The architect recommends a
contractor who, by prior arrangement, has
agreed to pay the architect a fee for any
project on which the contractor is hired as a
result of the architect's recommendation. The
architect believes the contractor is as skilled
and competent as the other contractors in the
area that he would recommend but who have
no referral fee agreement with the architect.
The architect does not tell the owner about
his arrangement with the contractor to receive
a referral fee.
Q2: Did the architect act unethically in
failing to disclose the financial arrangement
he had with the contractor when he provided
the recommendation to the owner?
Reference
Canon III, Obligations to the Client
Rule 3.202
If members have any business
association, direct or indirect
financial interest, or other
interest which could be substantial enough to influence
their judgment in connection
with their performance of
professional services, the
members shall fully disclose
to their clients or employers
the nature of the business
association, financial interest,
or other interest, and if the
clients or employers object to
such association, financial
interest or other interest, the
members will either terminate
such association or interest or
give up the commission or
employment.
Discussion
The first question considered here deals with
the ethics of accepting a referral fee from a
contractor. An architect is uniquely qualified
to evaluate the likely performance of a contractor or any other participant in a building
project, and because he is a professional
architect his advice will be solicited and
relied upon as being unbiased. It is not
unreasonable for an architect to expect and
accept compensation for providing this
service. What compensations the architect
should receive for this or any other
professional service is a business matter for
the architect to decide and is not governed by
the Code. It is not inherently unethical for an
architect to accept a fee for the legitimate
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Code of Ethics and
service of making a referral. The acceptance
of a referral fee from the person that the
architect recommends, however, affects the
interests of persons other than the architect
and the contractor. The owner who requests
the referral relies on the professional
judgment and integrity of the architect. The
question remains, therefore, whether there is
an actual or apparent conflict of interest that
requires disclosure of the fee.
even when the architect is not compensated
by the person seeking the advice, is a
professional service within the meaning of
the rule. A referral fee, even if modest in
amount, is a direct financial interest of the
architect that a client might reasonably regard
as substantial enough to influence the architect's judgment. The architect is obligated to
disclose to the owner his fee arrangement
with the contractor.
In dealing with this second question, the first
issue is whether the owner in this situation is
a "client" as that term is used in Rule 3.202
even though no formal agreement exists and
no compensation is paid.
Webster's
Dictionary defines "client" as "a person who
engages the professional services of another."
The word "engage" has several meanings,
including "involve," "interlock with," and "to
arrange to obtain the use of services of." It is
apparent here that the owner has asked for
advice from the architect because of the
architect's
training
and
experience.
Architects are generally regarded as experts
in matters of building design and
construction.
Accordingly, whenever an
architect is asked for an opinion on a matter
that is within his professional competence, he
is being asked to render a professional
service.
The individual who seeks his
professional advice must be considered a
client in the broad sense. In addition, the
individual requesting a recommendation in
this case was a former client of the architect
and would every reason to expect an unbiased
professional opinion regardless of whether he
paid for the advice.
It makes no difference under the disclosure
rules whether the architect is certain that the
contractor he recommends is the best one for
the job or that he would make the same recommendation even if no referral fee were
paid. Though the architect may be confident
there is no actual conflict of interest, any
referral fee is an interest substantial enough
to create an appearance of partiality and is a
factor about which the client is entitled to
know.
When an architect is asked to provide professional
services,
in
this
case
a
recommendation on the qualifications of a
contractor, he must comply with the
requirements of Rule 3.202. The rule applies
here because recommending a contractor,
Conclusion
A1: No. The architect did not act unethically
in accepting a referral fee from the contractor.
This is strictly a business decision.
A2: Yes. It is unethical for an architect to
fail to disclose a referral fee arrangement
when he recommends to someone else the
services of the person or firm who pays the
fee.
individuals.
June 30, 1987
5
Code of Ethics and
Conflict Of Interest – Endorsements
Questions
Q1: It is unethical for the architect to
endorse the product line?
Reference
Rule 3.201
Members shall not accept
compensation for their services from more than one party
on a project unless the
circumstances are fully disclosed and agreed to by all
interested parties.
Rule 3.202
If members have any business
with their performance of
professional services, the
members shall fully disclose
or other interest, and if the clients or employers object to
interest or other interest, the
employment.
Commentary: These rules
are intended to embrace the
full range of situations which
may present a member with a
conflict between his interests
and those of his client or employer. In some situations, a
conflict is easily discerned, as
when the architect owns property adjacent to property upon
which he has been asked to
design a structure and is
faced with design options
which would affect the value
of his property.
Other
instances are not so clear, and
that is more frequently the
case as new systems and
procedures
for
the
construction process, such as
design-build, come into the
market. In every case, the
architect must take adequate
steps to ensure that the client
is aware of any substantial
interest which might run
counter to the interest of the
client.
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Code of Ethics and
Facts
Conclusion
An architect is asked by a product
manufacturer to endorse a line of products for
the building industry.
There is no
compensation to the architect for his
endorsement, which the manufacturer uses
publicly in advertisements and marketing
materials.
Discussion
A1: No. It is not unethical to make uncompensated
endorsement
of
products.
Disclosure to a client may be required under
appropriate circumstances, and disclosure is
mandatory if there is compensation for the
endorsement.
Paid endorsements by
architects are prohibited under the laws of
many states.
There is no Rule under the Code that prohibits product endorsements as such. A member
who chooses to issue an endorsement should
consider whether that fact should be
disclosed to the client on any project on
which the member specifies the endorsed
product.
Disclosure certainly would be
prudent and consistent with the guidance
expressed in Ethical Standard 3.2.
individuals.
In appropriate cases, the product may b so
unimportant in the context of the total project
that the architect's endorsement could not
reasonably be considered an interest that is
significant enough to influence his
professional judgment, and accordingly,
disclosure would not be required under Rule
3.202. Usually, however, disclosure is highly
advisable, and it would be unethical no to do
so if the circumstances are such that the
member's judgment might be affected.
March 20, 1990
The situation would be different if the
member were receiving compensation for the
endorsement. Then it would be unethical
under Rule 3.201 not to disclose the
payments from a material supplier. Members
should also not that in a majority of states,
licensing board regulations prohibit accepting
compensation from material or equipment
suppliers in return for specifying or endorsing
their products. Usually this rule cannot be
waived by agreement with the owner.
7
Code of Ethics and
Discrimination Against Employees Based On Gender
Questions
Q1: Is it unethical for an Associate Member
of the Institute to engage in harassing and
discriminatory actions toward a coworker of
the opposite gender?
Q2: Is it unethical for a Member to condone,
overtly or implicitly, harassment by one
employee against another employee?
Q3: Is it unethical for a Member to discriminate against an employee based on gender?
Reference
Canon II, Obligations to the Public
R. 2.501
Members
shall
not
discriminate
in
their
professional activities on the
basis of race, religion, gender,
national origin, age, or
nondisqualifying handicap.
Commentary:
This rule
applies to all professional
activities of the Member,
including but not limited to
dealings
with
clients,
colleagues, and employees. It
is stated with such breadth
here so as to avoid repetition
under the other Canons.
Rules of Enactment, Application, Enforcement and Amendment, Article II, Application
Facts
Over a one-year period, a female employee of
an architecture firm was consistently harassed
by a male coworker, who was an Associate
Member of the Institute. The harassing actions included consistent, methodical, repetitive rearrangement of items in the female
employee's workstation; repeated comments
to the female employee and other coworkers
demeaning her education, competency, and
professionalism; malicious notes to the
female employee; equipment removed from
the female employee's workstation and
replaced with inferior substitutes, with the
comment that she did not deserve the better
equipment; false reports filed with the
supervising architect (who was an Institute
Member) claiming that the female employee
was not working full eight-hour days; and
completed reply cards from supplier catalogues for products in which the female
employee had no use, requesting that she be
contacted immediately by a sales representative, thereby generating many unnecessary telephone calls. In addition, although the female employee had been with
the firm six months longer than the male
coworker and was two years further along in
her preparation for the licensing examination,
the male coworker was being paid $3,500 a
year more than she. He was also offered
CAD training, which was denied to the
female employee, despite her expression of a
strong desire to receive that training.
The female employee attempted to discuss
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Code of Ethics and
the situation with the male coworker on three
separate occasions without any positive
results. After the incident of the equipment
switching, she met with their supervising
architect to describe the occurrences to that
point and requested intervention.
The
supervising architect replied that the
substituted equipment would serve the same
purpose and that the other complaints were
just her imagination. After receipt of the
malicious note, she met with the supervising
architect again. At that point, he met with the
offending male employee and all the other
male employees in the studio. As a result,
there was a slight decrease in the harassing
actions, but a great increase in tension among
the female architect and the other male
coworkers with whom she had experienced
no problems and about whom she had made
no complaints. The supervising architect told
the female employee that he had done all he
intended to do and that she should learn to
expect this type of behavior if she were going
to work in a "man's profession."
Feeling no satisfactory resolution had been
reached, the female employee privately contacted officers of the local AIA component
asking them to intercede in what she believed
was a violation of the Institute's Code of
Ethics and Professional Conduct. They expressed sympathy and referred the woman to
the local Council on Human Rights. While
the person with whom she met at the Council
on Human Rights agreed that she had
grounds for filing a complaint, she was
cautioned about the possibility of being
blackballed in the local architecture
community for doing so.
At her annual evaluation, at which she was
well-reviewed, she again advised the supervising architect that the harassing incidents
had not completely stopped. He responded
that he had done all he intended to do.
Shortly thereafter, after she passed the
licensing exam, the harassing incidents
escalated. After three weeks of regular
occurrences, she again attempted to discuss
the matter with the supervising architect and
insisted that he take steps to stop the harassing behavior. Within a matter of days, she
was informed that her services would no
longer be required, effective 5:00 p.m. that
day, because of a work slowdown. However,
within a matter of days, the same firm made
an offer to a male architect whose education,
job experience, and licensing status were
almost identical to those of the female
architect. He was told that the firm wanted
him to start work immediately because there
was so much work that needed to be done.
Discussion
Members and Associate Members of the
Institute are equally obliged to comply with
the Institute's Code of Ethics and Professional
Conduct. It is clear from the Commentary to
R. 2.501, that it is intended to cover actions
of employer and employees vis-à-vis other
colleagues and employees in the work place,
even though the Rule is included in the
section of the Code captioned "Obligations to
the Public."
The facts presented clearly outline a continuing pattern of harassment in the work place
by a male employee against a female
employee, that declined for awhile but never
completely ceased, even after repeated
complaints by the harassed employee being
harassed to the coworker and their supervisor.
The
supervising
architect
implicitly
condoned those harassing actions by failing
to recognize and deal with the harassment
after the initial complaint by the female
employee. After the second complaint, the
actions taken by the supervising architect
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Code of Ethics and
served only to create more tension between
the female employee and other male employees with whom she had experienced a good
working relationship. It did nothing to stop
the harassing actions by the offending
employee. The supervising architect failed to
follow-up to determine if his actions had, in
fact, stopped the offending behavior. His
comment that the female employee should
get used to harassing behavior if she intended
to work in a "man's profession" placed him in
the position of overtly condoning and aiding
in the harassment.
Additionally, the
supervising architect overtly discriminated
against the female employee by paying her
substantially less and offering her fewer training opportunities than a male employee with
considerably less experience and less
seniority with the firm. Given the positive
annual review received by the female
employee and in the absence of any criticism
from the supervising architect other than that
related to her complaints of harassment, it is
difficult to ascribe her employment
termination to anything other than overt
discrimination based on her gender. This
conclusion is particularly compelled by the
actions of the supervising architect in offering
employment to a similarly trained and
experienced
male
architect
almost
immediately after terminating the female
architect because of a "work slowdown."
Member employers may wish to consider
consulting with an attorney or human
resource management consultant to audit
their employment and promotion practices to
insure that they comply with current legal
requirements. While there are different,
acceptable methods with which to address an
issue of harassment in the work place based
on gender, EEOC Guidelines may provide a
good beginning point. Those guidelines
suggest the following actions for employers.
Develop an explicit policy against
harassment that is clearly and regularly communicated to employees
and effectively implemented;
Affirmatively raise the subject with
all supervisory and non-supervisory
employees, expressing strong disapproval, and explaining the sanctions
for harassment; and
Develop a procedure for resolving
harassment complaints that encourages victims to come forward,
protects confidentiality as much as
possible, and provides effective
remedies, including protection of the
victim from retaliation.
It is also useful for components to know that
when contacted about such a complaint or
any other alleged violation of the Code of
Ethics, the complainant can be referred to
Staff Ethics Counsel at the The American
Institute of Architects in Washington, DC.
One of the duties of Staff Ethics Counsel is to
provide information in response to inquiries
about the Code of Ethics and the procedure
for filing a formal complaint against a
Member.
Conclusion
A1: Yes. It is unethical for a Member or
Associate Member of the Institute to engage
in harassing behavior toward a coworker or
any other colleague in the work place.
A2: Yes. It is also unethical for a Member to
overtly or implicitly condone such behavior
when it is observed or when a complaint is
received.
10
Code of Ethics and
A3: Yes. Any action by a Member directed
toward an employee which can only be explained and understood as being based on the
employee's status as a member of a minority
class—such as differentials in salary,
benefits, or educational opportunities—is a
violation of the Code of Ethics and Professional Conduct. In addition, such discriminatory behavior may be a violation of local
ordinance, state or federal law.
individuals.
January 1992
11
Code of Ethics and
Replacing Another Architect—Supplanting
Question
Discussion
Q1: Did Architect B act unethically in
replacing
Architect A without notice?
The facts present a situation where one architect replaces another as the principal architect
on a project. There was a time when the
Institute's Code of Ethics prohibited a
Member from accepting a commission for
which another Member had already been
employed, unless he had evidence that the
previous commission had been terminated
and written notice was given to the prior
architect. This rule against "supplanting"
was displaced in 1979 by interpretations of
the antitrust laws. Professional associations,
such as the AIA, may not unreasonably
restrict the freedom of their Members to
pursue commissions from clients. Because of
these judicial rulings, the AIA Code of Ethics
does not include a rule on the subject of
supplanting.
Facts
Architect A was retained by an owner to provide master planning and schematic design
services on a mixed-use, residential/retail
building project. The architect completed the
master plan portion of the project and began
schematic design. The relationship between
the architect and the owner had been rocky,
but they had worked through several
disagreements about the best approach to the
design challenges of the project. Their
differences surfaced again during the
beginning phases of schematic design. This
time they were unable to resolve them.
Architect A stopped work and the owner
refused to pay the balance of his fee.
Architect B was aware of the clashes between
Architect A and the owner. When he heard
about their latest disagreement, he arranged a
meeting with the owner. Architect B told the
owner that he would be interested in working
on the project. The owner discussed that
possibility with Architect B and decided that
he felt more comfortable with Architect B's
approach to the site. Without resolving the
dispute with Architect A, the owner retained
Architect B to redesign the project using as
much of the master planning as possible, but
with a new approach to the schematic design.
Architect B does not communicate with
Architect A before accepting the job.
Since there is no ethical prohibition against
supplanting, it was not unethical for Architect
B to take over the project from Architect A at
the invitation of the owner. Architect B was
not required to provide any notice, oral or
written, to Architect A that he was accepting
the commission.
Architect B was not
required to determine whether Architect A's
contract had been terminated.
The deletion of the "supplanting" rule from
the Code of Ethics does not mean that there
are not serious ethical, legal, and risk
management issues that arise when one
architect replaces another on a project. For
instance, the law in many states prevents one
who is not a party to a contract from
intentionally interfering with an existing
contractual relationship between other
parties. Whether Architect B's actions in
12
Code of Ethics and
contacting the owner would constitute an
intentional interference with Architect A's
contract would be determined by the law in
the state where that activity occurred. Members who determine that contacting an owner
in this type of situation may be a good business decision may also consider consulting
first with legal counsel to determine the local
law regarding interference with a contract.
The Code of Ethics still requires much of
Members by prohibiting violations of the law,
by requiring truthfulness and accuracy in the
representations they make about their professional qualifications, their experience, and the
results that can be obtained for a client, and
by prohibiting the infringement of another
architect or design professional's copyright.
If, in the course of his discussions with the
owner or his subsequent actions Architect B
violated any of the rules related to those areas
of professional conduct, he could be subject
to discipline for violating the Code of Ethics.
Conclusion
Replacing another architect on a project without determining that the other architect's
engagement has been terminated and giving
written notice is no longer a violation of the
Institute's Code of Ethics.
But, the
withdrawal of the "supplanting" rule did not
eliminate all ethical considerations, such as
those mentioned in the Discussion, that may
be raised by such an action. Legal and risk
management considerations that existed at the
time of the "supplanting" rule still exist.
January 1992
There may be situations in which an owner
will present an architect with the opportunity
to take over a commission that has proceeded
through schematic design or the preparation
of contract documents.
A Member
considering the pros and cons of such an
opportunity will want to give serious thought
to resolution of questions regarding the
copyright of plans and designs prepared by
another architect and issues of professional
liability for design error.
13
Code of Ethics and
Conflict Of Interest – Manufacturer Indemnification To
Architect
conflict between his interests
and those of his client or
employer. In some situations,
a conflict is easily discerned,
as when the architect owns
property adjacent to property
upon which he has been asked
to design a structure and is
faced with design options
which would affect the value
of his property.
Other
instances are not so clear, and
that is more frequently the
case as new systems and
procedures of the construction
process, such as design-build,
come into the market. In
every case, the architect must
take adequate steps to ensure
that the client is aware of any
substantial interest which the
architect has which might run
counter to the interests of the
client.
Question
Q1: Did an architect act unethically in
failing to disclose to the client that he was
specifying a building material whose
manufacturer offers full indemnification to
the architect for any claims that might arise
out of the use of their product?
Reference
R. 3.202
If Members have any business
with their performance of professional
services,
the
Members shall fully disclose
or other interest, and if the
clients or employers object to
interest, or other interest, the
employment.
Commentary: These rules
are intended to embrace the
full range of situations which
may present a member with a
Facts
An architect is approached by a sales
representative of a roofing materials
manufacturer. In discussing the product the
sales representative advises the architect that
the company offers architects who specify
their product indemnification for defense
costs and indemnity payments which might
arise as a result of subsequent problems with
the roofing material.
Knowing the
frightening regularity with which problems-imagined or real--seem to arise with roofing
systems, the architect is intrigued and files
14
Code of Ethics and
the offer away for future reference.
As a project on which the architect is
working progresses, it appears that the
roofing material in question would be one of
several appropriate choices for that project.
The architect decides to specify the roofing
material from the company that offers the
indemnification. The architect does not
disclose the offer of indemnification to the
owner.
Discussion
The heart of R. 3.202 is full disclosure to the
architect's client or employer of any situation
which creates a potential or actual conflict of
interest. Clearly, this offer of indemnification
puts the architect in a more beneficial
position than he would be if specifying a
roofing material from a supplier not offering
indemnification. If the architect is "going
bare" and has no professional liability
insurance, the indemnification may provide
him with insurance-like coverage for
problems that might develop with the roof. If
the architect has professional liability
insurance, the indemnification may prevent a
claim against that policy, or may cover costs
that would be paid by the architect's
deductible. In either of those situations, the
architect stands to benefit from the indemnification. Will that benefit affect his professional judgment in selecting the roofing material? Could it? Under R. 3.202, the architect
must disclose that potential benefit to the
client or employer. It is the sole prerogative
of the owner or employer to decide whether
or not the benefit to the architect creates an
unacceptable conflict of interest.
the indemnification offer from the roofing
material supplier, which gave a clear benefit
to the architect. It makes no difference that
the indemnification may provide a benefit to
the owner or employer. The decision about
whether the benefit to the owner or employer
outweighs the effect that benefit might have
on the architect's professional judgment is a
decision for the owner or employer--not for
the architect.
Risk Management Caveat: Indemnifications
can be deceptive. They may appear to offer a
great benefit, but when the language is
analyzed closely, the "fine print" may take
away any benefit that appears to be offered.
Also, an indemnification agreement can only
be enforced if the company that offered it is
still in business. If you carry professional
liability insurance, you may wish to have
your
broker
review
the
proposed
indemnification language to assess what is
really being offered and its effect, if any, on
coverage available under the terms of your
policy. If you do not carry professional
liability insurance, you may wish to obtain
the same assessment from competent legal
counsel.
individuals.
October 31, 1992
Conclusion
A1: Yes. The architect acted unethically in
failing to disclose to the client or employer
15
Code of Ethics and
Accurately Claiming Credit For Design Work;
Recognizing The Professional Contributions Of
Business Associates
respect
the
professional
contributions
of
their
employees, employers, and
business associates.
Questions
Q1:
Q2:
Did an architect act unethically in
failing to credit the interior design
firm that worked with the architect as
a consultant on numerous projects?
Did an architect act unethically in
representing interior design work on
certain projects as solely that of the
architect's firm?
Reference
Members shall accurately represent their qualifications and
the scope and nature of their
responsibilities in connection
with work for which they are
claiming credit.
Commentary: This rule is
meant to prevent Members
from claiming credit for work
which they did not do,
misleading
others,
and
denying other participants in
a project their proper share of
credit.
Canon V, Obligations to Colleagues
R. 5.201
Facts
Canon IV, Obligations to the Profession
R. 4.107
Rules of Enactment, Application, Enforcement and Amendment, Article II, Application
Members shall recognize and
An architect's firm had a long history of
working with a particular interior design firm.
The president of the interior design firm had
at one point been an employee of the
architect's firm. The architect and the interior
designer had joined forces to form a separate
interior design firm with its own name,
headed by the interior designer. The two
firms worked together on a number of
projects, often as a result of the architect's
firm hiring the interior design firm as its
consultant. The interior design firm also
worked on other projects for which it had
competed under its own name. Over the
years the interior designer continued to
purchase stock in the interior design firm
until he became the sole owner. Even after
that point, the two firms continued to work
together on a number of projects.
The architect's firm made a business decision
to pursue more interior design work and
stopped hiring the interior design firm as its
16
Code of Ethics and
consultant. The architect's firm offered positions to several of the senior employees of the
interior design firm, which they accepted.
The architect's firm began to compete for
interiors work with the interior design firm.
Often the two firms were short-listed for the
same project. It was on one of those
occasions that the interior designer learned
that the architect's firm was presenting to
potential clients display boards of work that
the two firms had done together, but
representing the work as solely that of the
architect's firm.
The architect admitted doing so, but denied
that the Code of Ethics and Professional
Conduct had been violated for the following
reasons:
•
Because the architect's firm was a stockholder, and for a period of time the major
stockholder, in the interior design firm, it
was entitled to represent the work done
by the interior design firm as its own.
The fact that there were two separate
firms with different names was a mere,
legal technicality.
•
The interior design firm was entitled to
no credit because its contribution to
projects was minimal and limited to
selecting paint, wall coverings, and
upholstery fabrics.
The interior design firm, of course, disagreed
with the architect's defense. The architect
was unable to show only minimal
contribution by the interior design firm. It
was clear that there had been a team approach
to the interiors work being shown. While that
team was headed by an architect in the
architecture firm, there was no way to clearly
discern what work or decisions were those of
the architect and which were those of the
interior design firm.
Discussion
This case is a most relevant example of how
the three tiers of the Code of Ethics and
Professional Conduct are to be applied in
practice. The Canons and Ethical Standards
are broad, aspirational statements. They
represent the highest level toward which
Members should aspire in their professional
activities. The Rules of Conduct represent
the floor below which a Member's actions
may not fall. Should they fall below that
level, discipline by the National Judicial
Council would be appropriate.
Members should embrace the spirit and letter
of the Code in governing their professional
affairs. They should pursue their professional
activities with honesty and fairness, and
respect for the rights of others. The goal
should be compliance with the highest
standards advocated by the entire Code of
Ethics and Professional Conduct, not minimal
compliance designed to barely avoid being in
violation of a Rule of Conduct--even though
only minimal compliance is needed to
establish ethical behavior.
When the architect's firm took credit for
interior design work done by the interior
design firm, it was not accurately
representing "...the scope and nature of [its]
responsibilities in connection with [that]
work...." as required by R. 4.107. The
architecture firm did not do the interiors
work. The team was under the direct
supervision of an architect who was
employed by the architecture firm. The
architecture firm did some of the work. The
interior design firm, a separate business entity
with a different name, did some of the work.
Sometimes the two firms worked so closely
together on a project that it was impossible to
dissect who did what or who made critical
17
Code of Ethics and
decisions. The fact that the architecture firm
was a major stockholder in the interior design
firm is irrelevant. A reputation was being
built for interiors work by a firm with a
different name, but connected to the
architect's firm by ownership and/or team
organization. That firm also did projects on
which the architect's firm did not work and
continued to do so after the two firms stopped
working together. The Commentary to R.
4.107 could not be more clear. The Rule is
meant to prevent just the activity in which the
architect's firm was engaged--claiming sole
credit for work done in collaboration with
another firm and denying that person or entity
its proper share of credit.
individuals.
December 11, 1993
The interior designer was clearly a business
associate of the architect. Even when the
architect's firm was a major stockholder in
the interior design firm, the latter had its own
employees and separate business structure.
Work was done under a consultant's contract
with the architect's firm or under a separate
contract with the same client. By permitting
his firm to claim the work of the interior
design firm solely as its own, the architect
failed to "...recognize and respect the professional
contributions
of...[a]
business
associate. The architect's firm was entitled to
claim only partial credit for the work done in
conjunction with the interior design firm.
Conclusion
Q1. Yes. The architect violated R. 4.107 by
misrepresenting the interior design
work done by the interior design firm
and the architect's firm together as its
own.
Q2. Yes. The architect violated R. 5.201 by
failing to recognize the professional
contributions of a business associate.
18

AIA CODE OF ETHICS AND PROFESSIONAL CONDUCT ADVISORY OPINIONS

Transcription

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