Making Skilled Legal Advice A Part Of Routine Construction and Design Practices
Every design and construction firm needs access to capable and competent legal services, not just to handle lawsuits or threats of lawsuits, but for the more mundane, but equally significant, advice on proposed contract language and practice liability issues. In truth, like almost every other area of personal and professional life these days, selecting and working with an attorney requires the client to be a wise consumer of legal services. There are no fixed rules as to how these services should be provided to a design or construction professional. It is incumbent upon the practitioners as prudent businessmen or women to identify available skilled legal counsel and to integrate the requisite legal services into their particular practice. This article is intended to assist the small firm or solo construction or design practitioner in obtaining such legal services and in crafting a workable, affordable attorney-client relationship- i.e., one that tailors legal services to the professionals’ particular skills, interests and needs.
UNDERSTANDING THE LEGAL IMPLICATIONS OF DESIGN and CONSTRUCTION PRACTICES
The first order of business for any practicing AEC professional, whether solo or in a firm, is education. Legal issues and questions arise routinely in the practice of construction services. All design professionals should know something about the legal consequences of standard design practices. Why? Such a basic understanding is crucial in order to:
1. Craft routine business practices and policies which minimize liability;
2. Select and prepare contracts (and other contract administration forms) that clearly and accurately define the role of the design/construction professional in each respective project, as well as the legal obligations of that role;
3. Make the most effective use of the services of an attorney who is skilled in the practice of design/construction law.
In addition, knowledge of the legal aspects of design should assist the practitioner in recognizing problems on a project, hopefully in sufficient time to see to fair informal resolution, or to maximize the potential for success in the event of the more formalized dispute resolution processes–mediation, arbitration and civil litigation.
SOURCES FOR LEGAL RELATED INFORMATION
While strides have been made in teaching the legal aspects of design as part of undergraduate and graduate professional design programs, for the most part the burden falls on the individual practitioner to see this aspect of his or her education. Larger firms with “staff” attorneys have an excellent opportunity for regular “in-house” employee seminars, as well as the benefit of their employees’ continuous exposure to a legal practitioner working in their discipline. However, all design professionals, whether in large firms, small firms or solo practitioners, have available a wealth of legal related information:
1. Professional architecture and design associations are well known for their preprinted contract documents and practice advice books, booklets and bulletins, as well as their continuing education programs. Among the national organizations are the American Institute of Architects (AIA), The American Consulting Engineers Council, The American Society of Civil Engineers and the National Society of Professional Engineers provide these services for both members and non-members alike (at an increased fee for non-members). Particular attention should be paid to preprinted forms issued by the AIA and also the professional design groups under the auspices of the Engineers Joint Contract Documents Committee (EJCDC). Not only are these documents worthy of careful study for their evaluation of significant risks and obligations of design practice, but all these groups publish annotations and other descriptive information to assist the uninformed practitioner.
2. Professional liability carriers, most notably CNA, through Victor O. Shennerer & Co., Inc. and DPIC have long recognized that an educated insured is more likely to have fewer professional liability claims made against him or her. Certainly, the cost of insurance premiums places professional liability coverage beyond the reach of many small design firms. But the publications of these carriers are available to both insureds and non-insureds and should not be overlooked as a valuable source of information.
3. There are numerous continuing education providers, professional associations, private companies and universities, all providing programs geared to the design and construction practitioner. The AIA has over 1200 approved providers presenting programs coast to coast in support of their continuing education program.
REFLECTION – HOW YOU WISH TO PRACTICE DESIGN
Knowing that it is not realistic or economically practical for the small practitioner to refer every legal question to counsel, make a realistic assessment of your interest, skills and time available to research and craft solutions to particular legal problems. Some design professionals may have a particular “knack” or interest in the business of design including the drafting and negotiating of contracts and the analysis and resolution of disputes. Other design professionals will find these activities burdensome. Look honestly at your daily practice. Do you have the time, interest and skills to devote to legal issues such as the meaning and impact (for your design practice) of client-proposed contract language, or the risk and liability associated with a proposed scope of services or omission of those services from your scope of work? If you do, your use of an attorney will differ substantially from those firms with no particular interest or aptitude in this regard. There is no “right” or “wrong” here. Only the necessity of understanding your professional strengths and weaknesses, and the decision making necessary to tailor a role for legal counsel which dovetails with your needs.
THE ROLE OF LEGAL COUNSEL: COMMENTS FOR EACH
END OF THE SPECTRUM
You may wish to have legal counsel involved in your day to day business in an active way-reviewing and negotiating your contracts and advising on the legal/liability risks continuously before you. Nevertheless, it is important for you to remember that it is YOUR business. Most decisions relating to contract language and, indeed, most decisions relating to legal issues in design practice are not legal decisions. Most are, and should remain, as business decisions to be made by the design practitioner with the benefit of legal counsel. Too often, design professionals with little or no interest in the business aspects of design relegate all business decision making to the lawyers, often with disastrous results. In the final analysis, there is no way for the design professional to escape the necessity to understand the legal aspects of his or her practice and to be the final decision maker as to which risks you are willing to assume and to what degree.
Conversely, some design practitioners enjoy handling these legal issues and seek less day-to-day expert legal advice. In this regard, it is important to discuss the legal research potential available because of the use of computers and access to the vast data resources of the Internet. Twenty years ago, few design professionals would have considered doing their own legal research. Such research depends on enormous volumes of printed material – federal and state statutes, codes, rules and regulations of administrative agencies and printed court cases. In the past this information was available in hard copy form only in law school libraries and larger metropolitan areas. Even then, smaller county law libraries were likely to have only some of the widely published legal material available to practitioners.
Now, of course, access to some great search engines and other network services permits any individual to access this information. But with opportunity comes responsibility. Legal research is more than access to information. In order to competently utilize the vast amount of material now available, it is necessary to understand the American litigation system. This is clearly no small task – lawyers learn for three years in law school to understand legal principles, to research legal issues and to apply their research to specific fact situations. Not all printed cases carry the same weight – some may be entirely inapplicable (different state, for example) some may have been overruled or clouded by subsequent cases – and some may be distinguished from the facts at hand. For those design professionals interested in legal research on professional liability issues, the word is “CAUTION” – at a minimum you should undertake to be trained in research techniques and case factual analysis and you should double check your conclusions with counsel.
Thoughts about the use of legal services at each end of the spectrum suggest a team-based approach. The design professional, educated on legal and business issues becomes the team manager of a specialized business support team – legal, insurance, accounting and any number of technical design specialties necessary to complete today’s complex projects. The practicing design and construction professionals need enough knowledge of these disciplines to ask thoughtful questions of those people who provide advice to fully understand the advice and to make certain that it is consistent with the firm’s overall business philosophy.
CRAFTING THE WORKING TEAM
Having delineated a role for an attorney as a team member (a consultant, not an employee), how do you go about finding the right player? Some suggestions:
1. Find an attorney who has a specialty practice in design and construction law.
2. Ask what percent of their time is spent on design, construction and related matters.
3. Find out what construction law associations they belong to and whether or not they are active participants in those groups. Most bar associations in large urban areas have construction law groups. Also the American Bar Association’s Forum on the Construction Industry has approximately 5,500 members nationwide and provides its members with a quarterly construction law journal as well as three or more multi-day seminars on construction related legal topics each year.
4. Ask whether they write for juried law publications or teach – either in law or architecture, design or construction programs, or continuing legal or practice education.
5. Inquire as to what the attorney does to stay current in the field by way of seminars, journals or newsletters.
6. Ask whether the attorney has a transaction-based or a litigation-based practice. Unfortunately, many litigation-focused attorneys are too strident to provide helpful contract drafting and negotiation services or to help design professionals resolve legal issues short of litigation.
7. Effective lawyering involves much more than a knowledge of a particular area of the law. An understanding of the design and construction industry permits a lawyer to provide practical advice to his clients, with an understanding of the possible consequences. Good lawyering is about mature judgment based on cumulative experience. It is also about listening to you, the client, and communicating with and explaining options to you. Insist on this level of service.
In the final analysis, you want to select an attorney who is not only knowledgeable and active within the specialized design/construction law practice area. You want an attorney who is pleasant and helpful to work with. Remember that you are looking for a lawyer to function as a part of the team necessary for successful design practice.
A successful small design or construction practice demands much of its practitioners apart from the technical aspects of design and construction. Working with an attorney can and should be more than making a telephone call if you are sued. But getting the best legal advice on contract and other risk / liability issues requires an active involvement by the AEC professional. The design practitioner must undertake to be an educated team leader if he or she hopes to successfully integrate the success of an attorney into the practice team. And the firm’s principals must be decisive business managers: decide the level of legal services you wish to utilize on a routine basis, select the best practitioner that you can find and learn to evaluate your attorney’s advice before making the final decision on any legal issue. IT IS YOUR TEAM, AND YOU’RE THE CAPTAIN!
About the Authors
Mary McElroy is an attorney whose California based practice is devoted to construction law issues. A former chair of the American Bar Association’s Forum on the Construction Industry, she has taught and written extensively on construction law matters, including the publication Construction Industry Forms, John Wiley & Sons, Inc. In thirty years of practice she has literally drafted hundreds of architectural and design service agreements as well as construction agreements for all forms of project delivery.
William F. Dexter is a nationally recognized risk management expert and the former Director of the California Center for Construction Education for the College of Architecture and Environmental Design at California Polytechnic State University, San Luis Obispo. His professional training and consulting company serves numerous industry associations in the areas of problem solving and liability mitigation. His overall experience in construction activities spans 40 years as a craftsman, contractor, consultant, educator and trainer. He serves the Superior Court of California as a Special Master.
Disclaimer: JDi Data’s series of ‘Views from the Expert’ blogs provides information and expanded points of interest for our clients and partners.
These are personal blog posts. The opinions expressed here are the authors’ and not those of JDi Data or any other person.