I would offer a cautionary note - not on the idea of doing only the design service, but on the use of hold harmless / defend terms, etc. As always, my comments may not be construed as legal advice but instead are only advisory and informational in nature. Always consult an attorney knowledgeable in the areas of concern under the laws in the state where you practice.
Insofar as the design service is concerned, most state laws (at least those I am familiar with) only require that where a service that falls within the statutory definition of the practice of architecture is performed, that service must be performed by a licensee in a manner consistent with the balance of the statutory requirements. Nothing would require all of the typical services either 1) actually be performed; or 2) that they be performed by the same architect. Yes - there is some risk - and yes - you could be sued - but that is true relative to any services you render for any client, design only or otherwise. The bottom line is where it is your work product, you may have some liability for its use, as is the case with any other work you do.
The core point however is the use of what I would call exculpatory language. Understand that when a client provides you with a waiver of liability, that wavier will be effective as to the client only. If the project is constructed and a third party is injured in some manner, you owe duties to that third party and that third party has not waived its rights. Waivers will not bar those sorts of claims.
With respect to defend or hold harmless language, understand that such language does not prevent claims against you - it only obligates the Owner to defend you if a claim occurs. That mans simply that if a claim arises, you can still be sued. Although you may have the ability to pass the obligation to pay for the defense and any loss to the Owner, but you are still the proper party. That may be fine where the Owner is ready and willing to honor the obligation, but what if the Owner refuses to defend you or pay a loss? What if the Owner lacks the financial ability to honor that obligation, has gone bankrupt, died, or was some sort of corporate or other legal entity which for some reason no longer exists? You are still the proper party and you defend and pay the loss. Thereafter you get in line with other unsecured creditors and take whatever you may get.
The point isn't to say these sorts of terms aren't useful - they obviously are. The point is instead to illustrate the fact that they are not bulletproof. I have seen a number of instances where an architect takes this sort of language thinking from that point on they are absolutely covered. I have even heard comments like "its OK - we got a release letter from the Owner". Well . . . . maybe . . . . but please understand the use of that sort of language for what it is - not that it is necessarily bad, but it may not create the absolute defense or the security many believe it does.
Whenever you believe the use of that sort of language would be appropriate, the best course would be to proceed with caution.
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Frederick Butters FAIA, Esq.
Frederick F. Butters, PLLC
Southfield MI
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Original Message:
Sent: 10-28-2013 17:44
From: Jerry Roller
Subject: Providing Design services only
We do lots of projects where we provide design services and the projects never move beyond that stage. We typically include in our agreements a statement that, to the extent we are not involved in the construction phase, we are not responsible for the use of our documents. Where you are concerned that a client actually will proceed with the project and intends to use the design drawings for construction, you may want to obtain a waiver of liability from the client, along with a "defend and hold harmless" clause for any use of the documents as part of a construction project. You should consult your attorney for the proper language.
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Jerry Roller AIA
Firm Owner/Architect
JKR Partners
Philadelphia PA
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