Project Delivery

This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
-------------------------------------------

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

----------------------
Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
-------------------------------------------

My recommendation is, contact your liability insurance company with the question.  They will be defending the architect should he/she be tied up in a class action or civil suit.

-------------------------------------------
Thomas Montero AIA, FCSI, CDT
Architect/Consultant
Sanford FL
-------------------------------------------






Original Message:
Sent: 07-20-2013 16:33
From: Joseph Manganelli
Subject: Architect as Agent: Questions

This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
-------------------------------------------

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

----------------------
Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
-------------------------------------------

I would agree with Tom.
These are very fine distinctions that are being drawn and will b subject to interpretation of the actual facts.
All of that will mean there will be no easy exit from any litigation impacting life safety or the standard of care.
While their is no responsibility to design beautiful buildings their functionality in meeting the client's requirements is part of our responsibility.

-------------------------------------------
Burton L. Roslyn, FAIA
President
Roslyn Consultants, LLC
Roslyn Heights, New York
-------------------------------------------






Original Message:
Sent: 07-22-2013 18:00
From: Thomas Montero
Subject: Architect as Agent: Questions

My recommendation is, contact your liability insurance company with the question.  They will be defending the architect should he/she be tied up in a class action or civil suit.

-------------------------------------------
Thomas Montero AIA, FCSI, CDT
Architect/Consultant
Sanford FL
-------------------------------------------






Original Message:
Sent: 07-20-2013 16:33
From: Joseph Manganelli
Subject: Architect as Agent: Questions

This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
-------------------------------------------

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

----------------------
Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
-------------------------------------------

Joseph.  Your question is very insightful.  You have hit on the primary ethical conundrum of the architectural profession, and I believe, the most significant fallacy of it as well.  Architects are legally bound to serve the public and at the same time, practically bound to serve their clients and ethically bound to serve the greater good.  This split mandate creates a tug of war that puts architects and other professions in a tug of war in which their own needs and interests wind up taking a distant third seat.

Licensure is based on the need for someone in the design and building process to protect the "safety and welfare" of the public.  This the architect's legal role, and the reason that clients must hire a licensed architect to design their building.

Professional ethics as set forth in the schools and professional boards and the AIA dictate that architects consider the public at large, and represent the interest of the greater good in their practice.

The needs of the client, and of architects themselves is not well represented, and for this reason, the services of an architect are often abhorred by clients, who see the architect as either a luxury or a necessary evil, somewhere between artists bent on self aggrandizing self expression at their expense, or as regulators forced upon them by the government.  Architects themselves must try to make a business out of practicing under these preconceived notions.

The entire "agency" concept is under attack in recent years, as there have been numerous cases of malfeasance in the media such as investment brokers and physicians taking advantage of their clients and patients.  The value of an "agent" operating on the owner's behalf has been replaced with suspicion and "buyer beware" attitudes that place architecture out on a limb with little to grasp on to as a central value proposition, since representing the owner is pretty much all an architect can do to bring value to a project for the person who is paying their fee.

To be fair, the profession has become lazy as a whole in not promoting the needs of clients in the media and education.  We have become an entitled profession in many ways.

It is a debate that needs to be elevated to the highest levels of the profession, and I commend you on recognizing the importance of it, and posting your question.

For further research, begin with the term "principal agency problem."  It is subject that has been written about extensively.

--Alan Burcope, AIA, MBA, LEED-AP--

-------------------------------------------
Alan Burcope AIA, MBA, LEED AP
Architect
Finfrock Design, Inc.
Orlando FL
-------------------------------------------






Original Message:
Sent: 07-20-2013 16:33
From: Joseph Manganelli
Subject: Architect as Agent: Questions

This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
-------------------------------------------

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

----------------------
Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
-------------------------------------------

Joseph, I took your question to be one more of philosophical rather than legal in nature.  If you specifically meant it in legal terms, I would offer this thought.  I am not an attorney, but we all have to make legal decisions in our lives and businesses just as we make health decisions for ourselves, yet we are not physicians, and people make decisions about their buildings and homes and yet they are not architects or contractors.  Attorneys are a resource for us in our legal decisions, and "agents" for us in our legal dealings.  Just as doctors, architects and real estate agents can often be incorrect in their consultation, so can attorneys.

So legal decisions, while made in consultation with an attorney, are made by us, the individual who will pay the price or reap the benefits of those decisions.  This is the nature of "agency" whether it be an attorney OR and architect.

All professions have an ethical code that practitioners are sworn to uphold.  This is what separates a profession from a trade or business.  These ethical codes serve multiple purposes, and are often vague by their nature because they deal with complex issues that can't be easily defined in black and white.  Many professionals disagree on the purpose of these ethical codes.  Some believe they exist to protect the public.  Others believe they are there to protect the profession itself.  They are both right.

"Agency" does have specific legal meaning in certain context, but ultimately, to your example, every case is unique in terms of how it might apply and how it might result in someone taking legal action against you.  Law is something quite different than legal proceeding.  If you speed, you are breaking the law, yet if no police office is monitoring you, tracks you down and issues you a citation, then you are not charged.  Similarly, if, in your example an architect designs a project that others might find to be an ethical violation of the professional code, but no one takes legal action, then there is no repercussion.  Further, if someone chooses to take legal action, there may be a lack of practicality to doing so, for instance the cost of prosecution will have to be borne by someone.  Who will be willing to invest their own money to prosecute the architect?  Next, the courts may find the case to be frivolous and throw it out of court.  Some cases just don't make any sense to try, even though they may have ultimately resulted in a positive ruling.

I hope this helps you.

-------------------------------------------
Alan Burcope AIA, MBA, LEED AP
Architect
Finfrock Design, Inc.
Orlando FL
-------------------------------------------






Original Message:
Sent: 07-23-2013 09:15
From: Alan Burcope
Subject: Architect as Agent: Questions

Joseph.  Your question is very insightful.  You have hit on the primary ethical conundrum of the architectural profession, and I believe, the most significant fallacy of it as well.  Architects are legally bound to serve the public and at the same time, practically bound to serve their clients and ethically bound to serve the greater good.  This split mandate creates a tug of war that puts architects and other professions in a tug of war in which their own needs and interests wind up taking a distant third seat.

Licensure is based on the need for someone in the design and building process to protect the "safety and welfare" of the public.  This the architect's legal role, and the reason that clients must hire a licensed architect to design their building.

Professional ethics as set forth in the schools and professional boards and the AIA dictate that architects consider the public at large, and represent the interest of the greater good in their practice.

The needs of the client, and of architects themselves is not well represented, and for this reason, the services of an architect are often abhorred by clients, who see the architect as either a luxury or a necessary evil, somewhere between artists bent on self aggrandizing self expression at their expense, or as regulators forced upon them by the government.  Architects themselves must try to make a business out of practicing under these preconceived notions.

The entire "agency" concept is under attack in recent years, as there have been numerous cases of malfeasance in the media such as investment brokers and physicians taking advantage of their clients and patients.  The value of an "agent" operating on the owner's behalf has been replaced with suspicion and "buyer beware" attitudes that place architecture out on a limb with little to grasp on to as a central value proposition, since representing the owner is pretty much all an architect can do to bring value to a project for the person who is paying their fee.

To be fair, the profession has become lazy as a whole in not promoting the needs of clients in the media and education.  We have become an entitled profession in many ways.

It is a debate that needs to be elevated to the highest levels of the profession, and I commend you on recognizing the importance of it, and posting your question.

For further research, begin with the term "principal agency problem."  It is subject that has been written about extensively.

--Alan Burcope, AIA, MBA, LEED-AP--

-------------------------------------------
Alan Burcope AIA, MBA, LEED AP
Architect
Finfrock Design, Inc.
Orlando FL
-------------------------------------------






Original Message:
Sent: 07-20-2013 16:33
From: Joseph Manganelli
Subject: Architect as Agent: Questions

This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
-------------------------------------------

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

----------------------
Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
-------------------------------------------

Joseph,

First and foremost - seek out a law student, law professor or practicing attorney! These questions depend in large part on the state where the activities take place.

My opinion, and I'm not a lawyer, although, as an expert witness, many are my clients, is that you need to be very very wary of placing yourself in the role of agent on behalf of anyone or any entity, including an Owner or the public!

An architect's responsibilities to the public are defined in the practice statutes of the state where they are practicing. The standard of care they must meet as a practicing architect is also defined by their location - and generally, in no sense are they an agent of the public, either statutorily or within the standard of care in their locale.

Virtually every professional liability insurance carrier I have known will advise you to never be the agent of anyone, other than yourself or your firm, when performing as a licensed architect. Such status puts you in the position of assuming the liabilities of the other party in addition to your own as an architect. Be very very wary if anyone asks you to assume agency status on their behalf. Consult legal and insurance counsel before assuming any such responsibility!

Again, I am not an attorney, but I've been licensed for 43 years and experience tells me beware!!!!

-------------------------------------------
Thomas Zimmerman, FAIA
Architect/Consultant
Z2 Architecture, PLLC
Canandaigua NY 14424
-------------------------------------------






Original Message:
Sent: 07-20-2013 16:33
From: Joseph Manganelli
Subject: Architect as Agent: Questions

This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
-------------------------------------------

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

----------------------
Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
-------------------------------------------

every architect that complains about  the status (really, the lack thereof) of the architect in today's professional world should reference the paragraph below that i've taken the liberty to highlight in bold. it's all there in a nutshell. architecture's willingness to shirk/avoid responsibility on the advice of bean counters who make decisions based on what actuarial tables tell them. here's a way around it, and i wish i could credit the san diego architect i got this from at the monterey design conference many years ago. 

be your own architect, contractor, and developer. you'll only be liable to yourself!

-------------------------------------------
Eugene Ely AIA, LEED AP

San Jose, CA
-------------------------------------------






Original Message:
Sent: 07-23-2013 11:17
From: Thomas Zimmerman
Subject: Architect as Agent: Questions

Joseph,

First and foremost - seek out a law student, law professor or practicing attorney! These questions depend in large part on the state where the activities take place.

My opinion, and I'm not a lawyer, although, as an expert witness, many are my clients, is that you need to be very very wary of placing yourself in the role of agent on behalf of anyone or any entity, including an Owner or the public!

An architect's responsibilities to the public are defined in the practice statutes of the state where they are practicing. The standard of care they must meet as a practicing architect is also defined by their location - and generally, in no sense are they an agent of the public, either statutorily or within the standard of care in their locale.

Virtually every professional liability insurance carrier I have known will advise you to never be the agent of anyone, other than yourself or your firm, when performing as a licensed architect. Such status puts you in the position of assuming the liabilities of the other party in addition to your own as an architect. Be very very wary if anyone asks you to assume agency status on their behalf. Consult legal and insurance counsel before assuming any such responsibility!

Again, I am not an attorney, but I've been licensed for 43 years and experience tells me beware!!!!

-------------------------------------------
Thomas Zimmerman, FAIA
Architect/Consultant
Z2 Architecture, PLLC
Canandaigua NY 14424
-------------------------------------------






Original Message:
Sent: 07-20-2013 16:33
From: Joseph Manganelli
Subject: Architect as Agent: Questions

This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
-------------------------------------------

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

----------------------
Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
-------------------------------------------

I found this link.  Not necessarily an answer.  Your real answer is in what your Insurer will allow, or what your attorney can tell you.  But back in the dim mists of time, in my Business Law class, the concept of Agency was covered as an important LEGAL concept.  I was taught that the Architect is not a true Agent, and the content of this link seems to state what I understood back then.

http://www.areforum.org/forums/archive/index.php/t-290813.html

-------------------------------------------
Timothy Brocato AIA
Alexandria LA
-------------------------------------------






Original Message:
Sent: 07-20-2013 16:33
From: Joseph Manganelli
Subject: Architect as Agent: Questions

This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
-------------------------------------------

Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

----------------------
Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
-------------------------------------------