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The Straight and Narrow Path:
Ethical Issues for Design Professionals
By Steven G.M. Stein, Esq.
Jeffrey H. Winick, Esq.


Architects and engineers, like other professionals, are accorded particular status and prestige in conjunction with the title of "professional." But, in exchange for an exclusive license to practice a particular profession, society imposes the responsibility of behaving according to ethical standards. These societal obligations are enforced on some professions through laws and regulations and through the maintenance and enforcement of ethical standards. This monograph will examine the ethical issues which arise in the practice of the architectural and engineering professions and devote particular attention to everyday circumstances in which these ethical issues arise.

PROFESSIONAL ETHICS IN THE NEWS

Professional ethics in the engineering and architectural fields came into public attention in the aftermath of the destruction caused by Hurricane Andrew in August, 1991. In the investigations after the hurricane, it came to light that not only were the construction means and methods sorely inadequate, but the building codes and the practices followed by the architectural and engineering communities in South Florida were partially responsible for the extent of the damage. While the behavior of the architectural and engineering community was certainly not criminal - and, in fact, no design professionals were prosecuted - the behavior has come to be recognized as a classic example of the potential consequences of design professionals ignoring their ethical obligations.

In conjunction with a celebrated incident like Hurricane Andrew, there has been growing discontent generally within our society regarding unethical conduct in the construction industry. Practices that at one time were regarded as acceptable, or at least inevitable, such as bid-rigging, corner-cutting, unnecessary work, inflated fees, etc. have come to be regarded as unacceptable and intolerable. Although these practices typically do not involve the design professional, the heightened scrutiny of the industry in general, has created greater pressure on design professionals to strictly abide by the ethical responsibilities of their professions.

In addition, development of the consumer movement over the last decade has led to heightened awareness of professional conduct and the professional obligations associated therewith. Consumers are more aware of professional obligations concerning, among others, information disclosure, efficient performance of work, fair and accurate advertising and appropriate fees and billing practices.

RELATIONSHIP BETWEEN DESIGN PROFESSIONALS AND PURCHASER OF SERVICES

The relationship between the architect/engineer and the party purchasing his or her services can be categorized in one of three possible manners: 1) Customer; 2) Client; or 3) Patron.

As a customer, the purchaser is subject to "caveat emptor" or buyer beware. The purchaser is entitled to exactly what they request and pay for, nothing more and nothing less. The professional's obligations would not extend beyond the responsibility to provide his or her services exactly as requested by the customer. The design professional would not be called upon to exercise any independent judgment regarding his or her customer's desires.

Obviously, the problem with the model of purchaser as "customer" is that a purchaser seeks the services of an architect or engineer because the architect or engineer possesses knowledge and training that the purchaser does not possess. Moreover, society licenses architects and engineers and requires their involvement in projects so that this skill and training will be reflected in the finished product. The purchaser as customer model invalidates many of the bases behind the establishment of the professions.

A second alternative model is the purchaser as patron. Unquestionably, the services of design professionals are replete with aesthetic elements that raise the practice to an art form. In the purchaser as "patron" model, the purchaser defers entirely to the judgment and decision making of the design professional. The purchaser accepts "as is" the product of the design professional, much as the art patron accepts the works of an artist.

This model not only, in fact, fails to represent the realities of the market, but also, in principle, this model should not epitomize the practice of architecture and engineering. Both professions, in addition to incorporating elements of art, are directed to the design of solutions to the circumstances, needs and desires of the purchaser of their services. Due to the functional requirements of good architecture or engineering design, the whims of the design professional cannot be the proper standard upon which the design professional - purchaser relationship is based.

The final model is the purchaser as client. This model anticipates that the design professional will work in conjunction with the purchaser so that the needs and desires of the purchaser are appropriately matched to the skills and knowledge of the design professional. The design professional assists the purchaser in achieving its objective while upholding all of the principles of good practice that society seeks from design professionals. In short, the purchaser receives a functional and aesthetically pleasing product while the architect or engineer ensures a safe and well designed product.

In order to ensure that the entire profession operations under the purchaser as "client" model and fulfills all of the obligations associated with this manner of practice, the professions often promulgate codes of professional conduct by which members of the profession are expected to abide. The codes encourage standard behavior among all members of the profession and create a strong disincentive to seek the temporary benefits (monetary or otherwise) that might be achieved by breaking from the rest of the profession in any one instance.

CODE OF ETHICS AND PROFESSIONAL CONDUCT

In the field of architecture, the ethical and professional conduct to which an architect is expected to conform is defined by the American Institute of Architect's Code of Ethics and Professional Conduct. The code is broken down into the various constituencies that the architect is responsible to: himself, the public, the client, the profession and his colleagues. In the field of engineering, although there is no current written code of conduct, many practicing engineers continue to abide by the code of professional conduct issued by the Illinois Society of Professional Engineers.

In addition, in the State of Illinois, architects and engineers are subject to each profession's respective licensing acts. Architects are subject to the ethical provisions of the Illinois Architecture Practice Act of 1989, while engineers are subject to the ethical provisions of the Professional Engineering Practice Act of 1989 and/or the Structural Engineering Licensing Act of 1989.

Design Professional's Ethical Responsibilities to Oneself

The design professional's first responsibility is to oneself. The obligation is straightforward and simple: the design professional is to constantly seek to improve his or her professional knowledge and skill and to utilize those skills and knowledge in a reasonably careful and competent manner in their practice. In other words, the design professional is to strive to do a good job in all circumstances and thereby enhance his or her own reputation as well as the reputation of the profession as a whole. This responsibility is among the first listed in the standard of professional conduct included in the Rules for Administration of the Architect's Act, the Engineer's Act and the Structural Engineer's Act: Rules for the Administration of the Architect's Act provides that:

The Rules for the Administration of the Engineer's Act and the Structural Engineer's Act provide that:

Design Professional's Ethical Responsibilities to the Public

After satisfying the obligations to oneself as a professional, the design professional must be concerned with abiding by his or her obligations to the public. It is not coincidental that the AIA Code addresses obligations to the public before obligations to the client. Before the design professional can be concerned with the obligations to a paying client, he or she must place those concerns in the context of the responsibilities to the public as a whole.

A design professional should always reflect on the consequences of his or her work on those outside of the contractual relationship between the design professional and the client. Consideration should be given to the relationship of the project to contractors, construction workers, users of the building, neighbors and the community at large. Precisely because these concerns are difficult to discern, they must be given primary attention. The design professional must consider the interests of the client and balance them against the interests of society generally.

The first step in this process is acquiring an understanding of the law as it relates to the particular project and as it relates to the practice of architecture and engineering generally. Society passes laws to regulate the conduct of its citizens. Therefore, an architect's or engineer's first principle must be that all of its services will be performed in accordance with and in a manner that facilitates the upholding of the law. In fact, Canon II of the Architectural Code of Professional Responsibility frames the obligations to the public within the context of the law. Canon II reads:

The Rules for the Administration of the Architect's Act requires that:

The Rules for the Administration of the Engineer's Act and the Structural Engineer's Act require that:

The obligation extends beyond merely abiding by the law. The design professional is responsible to refuse to consent to any decision by its client that violates any law or regulation and which would adversely affect the safety of the public. In fact, the design professional must report the client's decision to the local building inspectors or other public officials unless able to convince the client to change its decision.

The Rules for the Administration of the Architect's Act provides that:

The Rules for the Administration of the Engineer's and Structural Engineer's Act provides that:

And ignorance of the law is not an excuse. Where the design professional knows or should know that the proposed conduct is illegal, he or she should not participate and should seek to prevent the illegal conduct.

Even after satisfying all of the legal requirements, the design professional must consider other issues, including the safety of those who will be constructing the project, as well as those who will use the facility. This is not an exhortation to become involved in the safety efforts during construction. Rather, the design professional should consider the likely safety implications of its design.

In addition to abiding by the law, the design professional has other duties to the public. The design professional must consider the consequences of his or her design. These considerations include investigation of the impact of the new structure on other nearby structures (economically, functionally and aesthetically), whether the design itself is "efficient" both in terms of the usage of resources and the opportunity costs associated with its construction, as well as numerous other considerations involving the relationship of the project to the surrounding community.

Finally, the design professional must be cognizant of the aesthetic impact of the project. Although there is a potential conflict between construction cost and aesthetic value, the architect should seek to balance the two interests so that the client's functional and cost concerns are addressed while protecting the public's aesthetic interests.

Design Professional's Ethical Responsibilities to the Client

Due to the oftentimes close working relationship between the design professional and his or her client, the ethical responsibilities to the client are generally the most obvious and most contemplated. This neither diminishes their importance nor minimizes the attention and effort required to ensure that they are met.

The responsibilities of the design professional to his or her client are well summarized in Canon III of the AIA Code, which states that:

The ways in which this general obligation arise in the daily relationship between the design professional and his or her client can be broken down into five categories:

Competence

To satisfy the ethical obligation of competence the design professional must assure that he or she, along with any consultants that are retained, possess the necessary education, training or experience in the specific technical areas involved in the project. The design professional must avoid undertaking projects which are beyond his or her professional capacity. In the face of projects requiring expertise greater than the design professional possesses, the design professional should either retain consultants with the necessary expertise or refuse the project.

Communication

Candid and complete communication between the design professional and the client is central to an effective working relationship between the parties. It is also a critical component of the design professional's ethical obligations to his client. The design professional must elicit full information from the client and pay attention not only to the expressed desires of the client, but also to the reasonable conclusions that can be drawn from the information. But the design professional's responsibility is to do more than just listen. He or she has to engage the client in discussion and ensure that all relevant issues are raised and discussed.

Where the design professional seeks to convince the client to change elements of the project (particularly with respect to aesthetic issues) it is important that the design professional seek to persuade and not manipulate. Because the design professional has the advantage of greater knowledge and expertise, he or she must be conscious that they are engaging in a "fair fight."

Models, drawings and other design products should be accurate and representative of the project. The design professional should use all necessary means to avoid any deceptive elements of design product.

Additionally, all financial issues should be disclosed to the client and candid, complete discussions should be encouraged in instances where any ambiguities or uncertainties might otherwise exist.

Finally, the design professional should ensure that the client's objectives have been satisfied, after completion of construction. To the extent that they have not, the design professional should assist the client in identifying the deficiencies and assist the client in resolving the deficiencies, especially where the deficiencies are the responsibility of the design professional.

Loyalty

The ethical responsibility of loyalty boils down to a duty to avoid any conflicts of interest. The design professional should not be placed in a situation where his or her loyalties will be split. The only instances in which this circumstance should arise is where the design professional has disclosed the potential conflict to all involved parties and all involved parties consent to the arrangement.

With respect to conflict of interest, the Rules for the Administration of the Architect's Act requires, among other things, that:

Similarly, the Rules for the Administration of the Engineer's and Structural Engineer's Acts require, among other things, that:

Discretion

Where a design professional has been asked to maintain particular information in confidence, or where a reasonably prudent design professional would recognize the information as confidential, he or she has a duty to maintain the information in confidence. There are only three circumstances in which a design professional is free to ignore this ethic: 1) to prevent an act that creates a risk of significant harm to the public health or safety and where no alternate means of preventing the act are available; 2) to establish a legal claim or defense; and 3) to comply with applicable law or other ethical obligations.

Although the Architect's Act does not specifically address this issue, the Engineer's Act and the Structural Engineer's Act provide that:

Diligence

The design professional must maintain an appropriate balance between the client's interest in the work being completed as quickly as possible and the design professional's responsibility to complete the work carefully and properly. The design professional should strive for a timely work product that has been completed with the care appropriate to the task.

Design Professional's Ethical Responsibilities to the Profession

Though not often considered along with the previously mentioned ethical obligations, the design professional's ethical obligations to the profession are just as important as the others and arguably are the most critical for the future vitality of the profession. The endurance of a profession is dependent upon the constant vigilance of its members in maintaining standards of conduct and performance that ensure continued public confidence in the profession. The design professional's ethical obligations to his or her profession are central to maintaining this confidence.

Canon IV of the AIA code defines the architect's duty to the profession as follows:

Members shall uphold the integrity and dignity of the profession.

Although the AIA code includes particular rules designed to illustrate applications of this principal, the general principal is reasonably clear. A design professional must conduct business so as to engender confidence in the profession. The design professional's duties to the profession therefore encompass all of the duties to oneself, the public and the client discussed previously.

The design professional must also seek to assist the profession in conforming the conduct of all of its members to the Code or to the accepted ethical standards of the profession. Design professionals should make reasonable efforts to ensure that fellow professionals for whom they have supervisory authority conform to the ethical requirements. Where design professionals are aware of unethical conduct of design professionals over whom they have no supervisory authority, he or she should bring the conduct to the attention of the body enforcing the Code or any other authority that can compel the party to conform his conduct to the professional ethic. At a minimum, the design professional should seek to convince or persuade his colleague to conform his conduct.

Design Professional's Responsibilities to Colleagues

The final ethical responsibility is to the design professional's own colleagues. These ethical obligations ought to be the easiest to abide by. Simply put, a design professional has an ethical obligation to respect the rights and acknowledge the professional aspirations and contributions of colleagues. Design professionals should contribute to the efforts of colleagues toward achieving their goals of developing into more highly skilled and more productive professionals.

CONCLUSION

The day to day responsibilities and pressures associated with the practice of architecture and engineering are such that it is easy to forget the ethical obligations that one undertakes as a professional. The pressures to perform are immediate and persistent, making the ethical responsibilities easy to ignore. The consequences of doing so, however, couldn't be more important. As illustration of the potentially grave consequences of momentarily sidestepping the ethical tenants of the profession, consider the case of Robert Lund.

Mr. Lund was the vice-president for engineering at Morton-Thiokol on January 27, 1986. Earlier on that evening, Mr. Lund presided over a meeting of engineers concerning the launch of the space shuttle Challenger. The unanimous opinion of the engineers was that the shuttle launch should be postponed due to the cold temperatures. The concern was that the O-rings securing the rocket boosters might fail. Although neither Mr. Lund, nor any of the other engineers had data to confirm the danger that the sub 40 degree temperatures presented to the launch, they also couldn't confirm the safety of the launch. Mr. Lund therefore recommended to his superiors that the flight be postponed.

The Space Center nonetheless wanted to launch. They encouraged Mr. Lund's superiors to reconsider although they reiterated that they would not launch without Morton-Thiokol's approval. Mr. Lund's boss, along with Thiokol's vice-president for shuttle programs reviewed the evidence and concluded that the O-rings would hold at the expected temperature. Both men were ready to sign a launch approval on Mr. Lund's assent. Mr. Lund was the only thing that stood in the way of launching the shuttle.

Mr. Lund's first response was to repeat his concerns and to stand by his decision to postpone the launch. His boss asked him to reconsider and suggested that he "take off his engineering hat and put on his management hat." Mr. Lund did and he authorized the launch.

The next morning the Challenger exploded during lift-off, killing all seven astronauts due to the failure of an O-ring.

Mr. Lund was not prosecuted for his actions. He broke no laws. But Mr. Lund did allow the pressures of the circumstances to convince him to act against the conclusions he had reached as an engineering professional.

Certainly, Mr. Lund's experience is not reflective of the day to day consequences of ignoring the ethical responsibilities placed on the shoulders of design professionals. But the experience is nonetheless instructive as to the tremendous importance of those ethical responsibilities.

Attribution

Steven G. M. Stein and Jeffrey H. Winick, Esq. Stein, Ray & Conway ("SRC") is one of the largest firms in the United States exclusively devoted to construction law. SRC represents many of the country's largest owners, design professionals and contractors in contract formation, risk management and insurance, business counseling, and dispute resolution. SRC has handled some of the country's highest profile design and construction cases.

The information in this and all other RISK Administration and Management Company articles is intended for information and risk management purposes only and does not constitute legal advice. For legal advice and assistance, please contact competent counsel in the jurisdiction of your professional practice.

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