Conduct toward other architects

Introduction

Architects cross paths for a range of reasons including in a work, social or community setting.

As part of this interaction an architect may be called upon to take over the work of a previous architect or asked to comment upon the work of an architect. That comment may take the form of a written report or it could be spoken at a social engagement.

When providing comments and engaging in conduct involving other architects, an architect needs to understand their duties and obligations toward each other and to understand the responsibilities expected of them by the law and by the Australian Institute of Architects' Code of Professional Conduct.

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Taking over work

Occasionally, an architect will be called upon to take over the work of another architect.

The Institute's client and architect agreements recognise the various stages in the realisation of a project and allow either party to terminate the agreement at the nominated stages or at any other time. It may be at this stage that a client elects to terminate an existing engagement and engage a new architect for subsequent stages of work.

Furthermore, in most standard-form building contracts, where the owner has appointed an architect to administer the contract, there is usually a provision for the replacement of the architect.

These arrangements reflect the reality of transactions between clients and architects and are dictated by the contractual arrangements in place and the decisions of the client.

Obligations before accepting the commission

Whenever contemplating accepting a commission where the services of another architect have been terminated, an architect needs to be aware of their responsibilities and obligations with regard to copyright, moral rights, other relevant legislation (such as a state Architects Act) and the Institute's Code of Professional Conduct.

Other matters, which may have bearing on the decision, include legal, contractual and business issues related to risk, remuneration and the proposed conditions of engagement.

As the circumstances of every situation are different, it may be necessary to seek professional advice.

See Acumen Guide letter 39: Documenting a project from another practice.

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Copyright and moral rights

In Australia, copyright law is set out in the Copyright Act 1968 (Cth). Copyright protection applies automatically when material is created and protects literary works, artistic works, dramatic works, musical works, films, sound recordings and broadcasts.

The category of artistic works includes:

• a building or a model of a building (whether the building or model is of artistic quality or not)
• drawings (eg building plans).

The term 'building' is broadly defined in the Copyright Act to include 'a structure of any kind'.

Building plans are protected as artistic works, regardless of whether they are hand drawn or generated digitally.

If there are various versions of a design, each individual version may be a separate copyright work.

The copyright arises upon creation and no additional step is required unlike other intellectual property rights (such as a patent that requires registration).

The general rule is the creator of the work will own copyright in the work, so copyright in a drawing such as a house plan will be owned by the person who drew it, even if the drawing depicts another person’s ideas or is to be used on another person's project. This means that architects retain the copyright in their original works (drawings, models and completed buildings) unless they have assigned copyright to their client, or anyone else.

Where the architect is the copyright owner, it would be expected that the terms of the engagement provide for the architect to give permission for their use in the form of a licence to others (such as the project owner or builder) to use the copyright.

Express provisions governing who owns copyright and licences for copyright are covered in the Institute's client and architect agreements. The agreements can provide protection to architects by stating that the grant of the licence applies only after fees have been paid.

However, if there is no agreement with the client about copyright, the client has an implied licence from the architect for the use of drawings for the purpose for which they were created. Depending on the circumstances, this implied licence may:

• not be revoked if the owner departs from the original plans
• extend to preparing any necessary further drawings for the completion of the building
• extend to the use of the drawings by subsequent purchasers
• not be revoked by non-payment of fees.

A newly appointed architect should establish whether there is a licence (express or implied) for the use of drawings and documents prepared by the previous architect before accepting the commission. This will allow the architect to understand the extent the previous drawings and documents can be used going forward.

The creator of a work, in this case the original architect, also retains moral rights in relation to their work. Moral rights are separate from the 'economic rights' of the copyright owner. Moral rights subsist only in some 'works' to which copyright subsists, but they exist in artistic and literary works. Moral rights are personal rights, that is, they attach to the individual 'author' who created the work and cannot be transferred to another person or organisation even if copyright is transferred. This is why they are dealt with separately to copyright.

Where a person has moral rights they retain the right to:

• be attributed (or credited) for their work
• not to have their work falsely attributed
• not to have their work treated in a derogatory way.

A newly appointed architect must therefore ensure that the appropriate attribution is given to the original architect in any publications, publicity or awards submissions. If the original architect does not want to be attributed for their involvement, a waiver and indemnity in the form of an agreement not to take action for non-attribution, should be obtained by the client.

For more information, see the Acumen note Moral rights.

Code of Professional Conduct

Professional responsibilities under the Institute's Code of Professional Conduct exist, in addition to those required by the state or territory Architects Acts and other jurisdictions that regulate the practice of architecture overseas. Architects should familiarise themselves with the requirements of the applicable codes of professional conduct.

The Institute's Code of Professional Conduct provides members with principles, rules and notes in fulfilling their responsibilities to the public, clients, the profession, professional colleagues and the building industry.

Rule 3.5 requires that 'members shall not attempt to supplant another architect, employed or consulting, who has been appointed with a firm commitment for a particular project'. There is, however, no restriction on an architect taking over the work of another architect where the first architect has been dismissed by the client or where the agreement with the client has been terminated by either party.

It is good practice to inform the previous architect about the possibility of your appointment. This will help to get background on the project, ensure that the previous architect's termination has been carried out properly and assist you in making an informed decision on the nature of the commission and any risks in accepting it. You should first, however, advise your potential client of your intention to contact the previous architect and obtain their approval to do so. However, if you do not wish to contact the previous architect because of business or other considerations there is no absolute obligation to do so under the Code of Professional Conduct.

In any agreement with the client, you should ensure that there is a mechanism whereby contact with and sharing information from the previous architect can be facilitated.

Responsibility/obligations of the previous architect

Revocation of the previous agreement does not affect the rights and liabilities of either the client or the previous architect which exist at the time of termination. The client can sue for breaches of contract or a breach of the relevant duty of care committed by the previous architect and the architect can sue for remuneration earned before the termination and, possibly, for any loss of profit.

If an architect's services are terminated at a particular, identifiable stage (eg design development) then the client is licensed to use all documents and drawings that have been completed up to that stage. The use of partially completed documents and drawings requires the consent of the previous architect, who may impose conditions on their use, including attribution for identifiable parts of the design.

Responsibility after accepting the commission

It is important that the client acknowledges and apportions professional responsibility for the project between the two architects according to their contribution and involvement. There is little problem in achieving this, if correct legal, contractual and business procedures are followed. A new architect should seek to reach agreement with the client on the extent of their professional responsibility when negotiating the scope of service and fees.

The architect's professional responsibility at the stages of design, design development, contract documentation, tendering and contract administration are generally well understood by architects and easily defined. Accordingly, accepting a commission, at the completion of a particular stage, is likely to pose fewer problems than if the engagement occurs at partway through a stage. The new architect should endeavour to achieve the transfer at a defined stage, to minimise areas of unexpected risk.

If the commission is accepted in between defined stages, responsibility for that stage may fall to the architect accepting the commission notwithstanding that they are not undertaking all the services. If this is unavoidable, it should be carefully planned with adequate compensation, and with the aid of legal and professional indemnity insurance advice, before finalising the agreement to provide the services.

Warranties and agreements

If a mechanism for contact with the previous architect has not already been included in the proposed client-architect agreement, you should inform the client that you wish to notify the previous architect of your proposed appointment as the new architect. You should explain the reason for your action and the advantages of a working relationship with the previous architect.

Under normal conditions, the client should give consent, but the final decision for this must rest with the client. This will also allow you to discuss and consider issues related to copyright and relevant licences. If the client objects to you contacting the previous architect, or if the previous architect objects to your use of the copyright:

• Obtain a warranty from the client that they are entitled to appoint you as the architect for the project – this may require that the client obtain a legal opinion of their rights.
• Obtain an indemnity from the client, worded to provide complete protection in the event that the previous architect makes any claim against you for unauthorised use of copyright material or the license to use the design.

In either case, you should:

• Engage the services of a solicitor experienced in building matters to act for you in drafting your client and architect agreement – the agreement should carefully define what is included in the service as well as what is specifically excluded and clearly address the position in relation to copyright and licences to use intellectual property.
• Have the client-architect agreement reviewed by your professional-indemnity insurer prior to execution.

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Defamation

Architects should exercise caution when stating an opinion about another party to avoid a claim for defamation.

Many claims against architects for defamation arise out of careless communications or articles written in journals. They can also arise from reports made about the work or status of other architects, designers or contractors.

A defamatory statement is one which has a negative impact on and harms the reputation of the person defamed in the eyes of reasonable people when it cannot be substantiated by fact. At common law, a publication will be defamatory if it is likely to cause ordinary, reasonable persons to think less of the plaintiff, or to avoid or shun the plaintiff. Defamation is not limited to disparaging the person directly, but can encompass disparaging remarks regarding the person's trade, business, profession or office.

Not just individuals, but in certain circumstances companies, can make a claim in defamation including where the claim relates to false imputations of insolvency, mismanagement, or improper, unfair or dishonest conduct of their affairs. However, the ability of companies to bring proceedings on the basis of a publication that has the capacity to injure its trading or business reputation was significantly changed by the Uniform Defamation Law.

A few simple rules for avoiding defamation include:

• Being very careful if you have only heard one side of a story. No matter how honest or fair your informant might be, the chances are that you have not heard the whole story. If, for example, you are making a report on the work of another architect and you have your client's permission, it is wise to talk to the original architect. If you do not talk to the original architect, say so in your report. Note that pursuant to the Uniform Defamation Law enacted in the states and territories, the common law distinction between defamation and libel was abolished.
• Where expressing opinion, be honest and avoid sarcasm.
• When presenting facts and there is any doubt about their authenticity, check them as far as possible. In formal reports it is wise to identify the source of facts and to express any reservations.
• Being very careful if reporting a possibly defamatory comment in writing (such as in email) because it is the publisher of the comment who will be liable for defamation. See Acumen note Online ethics.
• Not imputing motive to the person written about. Say what they did, but do not suggest why they might have done it. If you know why they did it and it is relevant to your report or article, this can be reported, but you have to be sure of your facts.
• Avoiding gratuitous insults.
• Remembering that plaintiffs only have to prove that they have been defamed, not that they have been defamed and the material is untrue. Once defamation has been established, the burden of establishing a defence is on the defendant.

However, caution about defamation should not prevent you from providing clear advice to a client. For example, if you think that a contractor might be in financial difficulty, say so clearly and give your reasons without exaggeration.

In these circumstances you may have a defence to a claim for defamation if it was a private business communication to someone to whom you had a duty to provide information. Your client is clearly such a person, and other people will be also, such as certain officers of authorities controlling construction. However, this defence of qualified privilege does not apply where your communication is motivated by malice, or your opinion is unreasonably held.

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Reporting on another architect's work

There are situations in which an architect may be asked to make a report which involves the work of another architect. The report may be requested by:

• A prospective purchaser, that is, someone who is not the client of the other architect, but who has an interest in the results of the architect's work, (eg a potential purchaser or lessee of a building designed by the other architect or an organisation providing or considering providing finance for such a building).
• Another architect's client, ex-client or other potential plaintiff, usually because of dissatisfaction with the work of the other architect which may result in litigation.

These two cases are considered now in more detail.

Report to a prospective purchaser

Someone considering purchasing or leasing, or with some other interest in a building may commission an architect to report on it. In making such a report the architect's primary duty is to the client commissioning the report. However, where another architect is still, or has recently been, involved with the design and/or contract administration of the building concerned as a matter of professional etiquette, regard should also be had to the interests of the original architect.

At least initially, it is important that in most cases the building or the service is reported on, not the architect. For example, the report should say 'the entry to the loading dock has a headroom of only 2.3m which would be inadequate for your purposes' rather than 'the entrance to the loading dock is badly designed, having a headroom of only 2.3m'. It is suggested that the report be cast in this manner because the reporting architect may not know the instructions given to the other architect and therefore will not be in a position to say positively whether the design is satisfactory or otherwise in terms of those instructions.

Further, the reporting architect should consider their instructions and report appropriately. Where the report is for a prospective purchaser, the purpose is likely to be to determine whether there are any discoverable defects which would affect the purchase price rather than to apportion blame if they exist.

If the result is an implied criticism of the other architect, this must be accepted as a necessary consequence of the reporting architect's duty. Direct criticism of the architect should be avoided. At a later stage the reporting architect might be asked whether the service provided was of a standard to be expected from a reasonably skilled or competent architect. The question should be answered carefully, clearly and honestly.

Questions sometimes arise as to whether an architect who is asked to make a report should inform the architect of the building concerned and also whether the original architect should be given an opportunity to review the report.

Generally, as a matter of professional etiquette, it is desirable that the reporting architect should inform the original architect that they have been engaged to report on the building. However, in seeking to do so, it is important that any such notification does not in any way breach the confidence of the reporting architect's client and the client must be consulted before informing the other architect.

There is no obligation for the report to be shown to, or discussed with the other architect. Generally such a discussion would be undesirable, both because the reporting architect should keep the report confidential and also because discussion could suggest some form of collusion. However, there may be circumstances in which discussion with the other architect would be desirable if requested or approved by the person commissioning the report.

Report to another architect's client

This type of report differs from the previous type in that criticism of the other architect's work is often fundamental to it. For this reason, many architects are reluctant to take on such a task. However, the interest of the public, and indeed, in the long term, the interest of the profession, requires that if a client considers that an architect has been inefficient or negligent, scrupulously fair advice should be available from another architect to determine whether the original architect has failed to fulfil the commission.

An architect asked to handle such a matter should:

• Before taking on the task, consider whether there are any circumstances which might, or might appear, to compromise their impartiality. If so, they should decline to become involved.
• Enquire whether any litigation is pending (to clarify the purpose of the report). If litigation is possible, it is advantageous to be engaged not by the potential plaintiff, but by their solicitor. Being commissioned by, and reporting to, the solicitor may confer upon the report immunity from 'discovery'. That is, the report need not be shown to the other party when documents are disclosed prior to trial. However, most court rules require a copy of all experts' reports upon which a party intends to rely, to be served upon the other party well before the hearing.
• Upon accepting appointment, immediately consider and discuss with the client whether the other architect should be notified. In most cases, where litigation is contemplated notification is undesirable at this stage. The final decision must rest with the client and their legal advisers.
• Seek to ensure so far as practicable that the other architect has a proper opportunity to answer criticism before legal proceedings are commenced but never contact the other architect without instructions to do so from the client or their lawyer.
• Confine the report to the facts of the matter involved and do not indulge in generalised comments on the character or competence of the other architect, unless asked to do so.
• Report accurately, honestly and fully. A partisan report is not in the client's interests. Accurate knowledge of the strengths and weaknesses of a potential claim are vital to decisions concerning its proper handling and whether there is a claim at all.
• Comply with the mandatory guidelines that apply in the relevant jurisdiction where the report is intended to be used. If the architect has been briefed by lawyers to prepare the report then they should ask the lawyers for a copy of the mandatory guidelines if these have not already been provided.
• Observe the Codes of Professional Conduct of the Institute and state and territory Registration Boards.
• Avoid using the invitation to report as an opportunity to actively attempt to supplant the original architect.

Can a report be defamatory?

Allegations of unfitness to practice a profession against a person, firm or corporation are, prima facie, defamatory. Contextual truth is a defence, but the onus is upon the defendant in a defamation proceeding to prove the truth of what is alleged, rather than the plaintiff.

Anyone involved in court proceedings, including witnesses, is granted absolute privilege for what they say, regardless of whether they are telling the truth and whether motivated by fair play or malice. If witnesses are not telling the truth, then those individuals may be liable to be charged with perjury.

Communications between solicitor and client are privileged, but they must be relevant to the matter in hand. For example, a discussion about the competence of a contractor will be privileged if the solicitor's client is considering taking action for breach of contract; but an interjected remark about the contractor's brother's drunkenness will not be unless it is also relevant to the contractor's alleged breach. There is qualified privilege in circumstances where the allegedly defamatory statement is made in the performance of a duty. A report which has been commissioned for a legitimate business purpose falls within this class.

Qualified privilege does not confer absolute immunity. Architects undertaking reporting and witness work should ensure that their professional indemnity insurance policies have an extension to the policy for defamation, as even groundless claims can be very expensive to defend.

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Freedom of Information Act and government work

Any architect doing work for the government, particularly when it involves reporting on the work of others, should consider the possibility that under the Freedom of Information (FOI) requirements the report may have to be disclosed to people for whom it was not written. This is in addition to the powers of parties in a legal action to 'discover' documents in each other's possession. Each state and territory, and the Commonwealth has its own FOI legislation, though all are similar. The legislation does not protect a reporting person from an action for defamation, and although reports may be exempt from revelation as 'contrary to the public interest', this exemption provision may not always apply.

The FOI legislation applies to information and documents held by agencies and official documents of Ministers, unless exempt. The legislation may also apply to non-government bodies which are substantially funded by government or can be shown to be substantially controlled by government.

In writing reports for, or providing advice to government bodies or agencies, it is important that the report should be full and frank. This applies to hard-copy documents, electronic files, visual images, tape recordings.

• Maximise the reporting of facts and minimise the giving of opinion. Where an historical background is required, quote written sources and record what you have been told verbatim, if possible.
• Where possible, avoid attributing praise and blame. For example, 'Water damage to the ceiling has been caused by a faulty joint in the hot water pipe' gives more information, and is more accurate than, 'Water damage to the ceiling has been caused by the plumber's negligence in installing the hot water pipe' – the fault might lie with the manufacturer of the fitting rather than with the plumber.
• Where it is part of your commission to identify or seek to attribute responsibility, clearly state the facts and identify or define responsibility as a conclusion from the facts.
• If you must make a harsh or critical comment it is better to make it in writing, if it can be justified, rather than risk an oral comment being inaccurately recorded and attributed to you. As a precaution, mark any report to government which is critical of any individual or party as 'In confidence'. This would not be exempt from an FOI request from the party concerned, but may be exempt from anyone other than the party.
• Avoid insults and exaggeration. Never use phrases such as 'utter incompetence' where 'carelessness' is more appropriate.
• Avoid references to individuals wherever possible. Use phrases such as 'John Brown Co's apparent breach of contract' rather than 'John Brown's failure to control his staff'.
• Never adopt a report of something as the truth. For example, even if it is a law report that you are quoting from, remember to say, 'The court found that Fred Quark is guilty' rather than to assert that Fred Quark is guilty. Also, use 'alleged' or 'apparent' unless a fact is beyond question.

If, despite all these precautions, the report and the person reported upon make it likely that a defamation action could be taken, seek legal advice. It may be appropriate to ask the authority to whom you are reporting to provide an indemnity as even groundless defamation actions can cost a lot of time and money.

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