Practice Management Member Conversations

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I completed the TI design and CD's for a restaurant back in 1997.  The building shell was already existing.  All went well with the construction and relationship with the client.  The original owner (my client) sold the restaurant about 2 years ago.  Since then the restaurant has been closed down.  I recently received a call from a RE broker saying that he represents a new owner, in escrow, and they would like to get a copy of the old plans.  As a general policy we do not reproduce plans for a third party that we have no contractual relationship with.  And, additionally, since the plans were done 17 years ago, there may have been renovations done to the space that we were not involved with.  I therefore am inclined to tell the broker that we can not provide a copy of the old plans to their client.  I would greatly appreciate any feedback from members who might have run into a similar situation when asked to re-produce old plans for a new third party.  Thanks! 

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Michael Kemp AIA
Principal
Michael Kemp Architects
Los Angeles CA
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I would agree with your assessment unless the new owner signs a hold harmless agreement and pays you for your valuable intellectual property

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M. Gaskins AIA
Principal
The McIntosh Group LLC
Tulsa OK
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I can't tell you how many times record construction documents have come in as ESSENTIAL on renovation projects!  I would urge you to be generous with sharing these documents.  Certainly get paid for your time and draft whatever documentation you see fit that to release yourself from liability associated with them.

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Heather Lewis AIA
Manager, Architectural Services
University of Michigan Hospitals & Health Services
Ann Arbor MI
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Original Message:
Sent: 04-10-2014 13:40
From: M. Gaskins
Subject: Requests for re-printing of CD's for third parties

I would agree with your assessment unless the new owner signs a hold harmless agreement and pays you for your valuable intellectual property

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M. Gaskins AIA
Principal
The McIntosh Group LLC
Tulsa OK
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I'm not an attorney, but in talking with another architect a few weeks ago regarding a similar situation, he said the liability for architects is 10 years on any project and 1 year for a contractor. So if the project was done in 1997, wasn't your statutory limit reached in 2007? Check with an attorney or your state licensing board.

I haven't read through the whole conversation, so forgive me if this is redundant: have you consulted with your professional liability insurance person? Talking it over with them can help, although it seems these issues almost always boil down to a judgment call anyway.

I can see how having the set would be beneficial for the new owners. Could you provide only the blacklines and stamp them "For Information Only", "Not for permitting, construction, or contract documents."-- again, get the legal terms correct based on your State's practice act and per the liability insurance and industry standards.

If they want to pay you to do a set of as-builts on CAD, make sure to have a contract in place first and get your compensation up front.

I look forward to reading responses to what I've shared.

Thank you for bringing this topic up so we can learn how to deal with various situations that arise.

Best wishes,

Tara Imani, AIA, CSI
Houston, TX

Sent from Yahoo Mail on Android

------Original Message------

I can't tell you how many times record construction documents have come in as ESSENTIAL on renovation projects!  I would urge you to be generous with sharing these documents.  Certainly get paid for your time and draft whatever documentation you see fit that to release yourself from liability associated with them.

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Heather Lewis AIA
Manager, Architectural Services
University of Michigan Hospitals & Health Services
Ann Arbor MI
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Original Message:
Sent: 04-10-2014 13:40
From: M. Gaskins
Subject: Requests for re-printing of CD's for third parties

I would agree with your assessment unless the new owner signs a hold harmless agreement and pays you for your valuable intellectual property

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M. Gaskins AIA
Principal
The McIntosh Group LLC
Tulsa OK
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I don't mean to be sarcastic, but have met a whole of Architects and I haven't yet met one who doesn't bristle at the thought of non-Architects practicing law.  Why the do so may seem to believe it is nevertheless OK to practice law?  I read the comments and I am somewhat amazed that practice continues to prevail.

 First, I note that a fair amount of time has passed, and some of the commentary suggests that because of that passage if time there "shouldn't be" any liability.  Unfortunately it is impossible to know that.  Whether there is would be a function of the statute of limitations which differs dramatically State to State.  In some States, the period would have run, while in some States, perhaps not.  Understand also that in some States there is no Statute of Limitations whatsoever.  It is impossible to know for certain absent specific project locale knowledge and a review of the applicable law.  Principled risk management does not proceed on the basis of a gut feeling that something "should" be the case

 Second, the reliance on "hold harmless" agreements is misplaced.  Understand that if the documents are your work product, you as the Architect are responsible for their content.  A "hold harmless" agreement may offer some liability protection when a claim comes from the other party to the agreement (the party to whom the documents are provided) but it will offer no protection relative to claims from third parties (i.e.; people who use the building) as it is contractual in nature and as they are not signatory to the "hold harmless" agreement.  Understand there is also a latent public policy question - specifically whether a professional can disavow liability for his or her work product at all.  Depending on how that question is answered, it may well be that a "hold harmless" agreement would not be effective in your State under any circumstances

Finally, the suggestion is made to seek indemnification.  Understand that under an indemnification agreement in this context, the Architect is still the proper Defendant.  The indemnification agreement simply means that the Architect can seek recovery of any losses from the person or entity who agreed to indemnify.  If they refuse, the Architect still must defend, although they can sue the indemnitor to enforce the agreement - that's right, instead of one lawsuit you have two.  In addition, the possibility exists that the indemnitor lacks the financial resources necessary to pay.  In that event the Architect is left on the hook with no recourse.  Yet again, there is a latent legal question as to whether one can even seek indemnification for one's own deeds.  Said another way, under the law in most states, an Architect cannot seek indemnification for his or her negligence - no professional generally can.

The bottom line is simple - practice Architecture and let the Lawyers practice law.  Seek an opinion from an Attorney knowledgeable in the law in your state.  I know that costs a little money and it isn't what most Architects want to hear, but it is sound advice and there are a multitude of good reasons for it.

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Frederick Butters FAIA, Esq.
Frederick F. Butters, PLLC
Southfield MI
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Frederick,

While you certainly have the right to say what you say here and is indeed very good information I find it chilling to the entire purpose and discussion of this knowledge net.

Do you really believe that people here are practicing law or just sharing their experience. It is very valuable to hear others experience in relation to our own situation. Attorneys do not provided that relationship but other architects do. I would also hope that those who utilize this sharing also know to get actual legal advice before proceeding.

I find what you say thought provoking and educational in the most part but also feel chastised for daring to share my experience and thoughts. My experience includes discussions with attorneys and our insurance carriers in the course of my practice.

I hope you will always be here... will share your knowledge and thoughts... and teach us what you know... in a way that promotes the discussion and sharing and does not chill it.

Thanks you for your contributions.

Bradley
Sent from my iPad

M. Bradley Gaskins, AIA, CASp, Principal
The McIntosh Group, LLC
1850 S Boulder, STE 300
Tulsa, Oklahoma 74119

w 918.585.8555 x12 * c 918.671.0975
BGaskins@TheMcIntoshGroup.com

TheMcIntoshGroup.com
TMGADA.com

------Original Message------

I don't mean to be sarcastic, but have met a whole of Architects and I haven't yet met one who doesn't bristle at the thought of non-Architects practicing law.  Why the do so may seem to believe it is nevertheless OK to practice law?  I read the comments and I am somewhat amazed that practice continues to prevail.

 First, I note that a fair amount of time has passed, and some of the commentary suggests that because of that passage if time there "shouldn't be" any liability.  Unfortunately it is impossible to know that.  Whether there is would be a function of the statute of limitations which differs dramatically State to State.  In some States, the period would have run, while in some States, perhaps not.  Understand also that in some States there is no Statute of Limitations whatsoever.  It is impossible to know for certain absent specific project locale knowledge and a review of the applicable law.  Principled risk management does not proceed on the basis of a gut feeling that something "should" be the case

 Second, the reliance on "hold harmless" agreements is misplaced.  Understand that if the documents are your work product, you as the Architect are responsible for their content.  A "hold harmless" agreement may offer some liability protection when a claim comes from the other party to the agreement (the party to whom the documents are provided) but it will offer no protection relative to claims from third parties (i.e.; people who use the building) as it is contractual in nature and as they are not signatory to the "hold harmless" agreement.  Understand there is also a latent public policy question - specifically whether a professional can disavow liability for his or her work product at all.  Depending on how that question is answered, it may well be that a "hold harmless" agreement would not be effective in your State under any circumstances

Finally, the suggestion is made to seek indemnification.  Understand that under an indemnification agreement in this context, the Architect is still the proper Defendant.  The indemnification agreement simply means that the Architect can seek recovery of any losses from the person or entity who agreed to indemnify.  If they refuse, the Architect still must defend, although they can sue the indemnitor to enforce the agreement - that's right, instead of one lawsuit you have two.  In addition, the possibility exists that the indemnitor lacks the financial resources necessary to pay.  In that event the Architect is left on the hook with no recourse.  Yet again, there is a latent legal question as to whether one can even seek indemnification for one's own deeds.  Said another way, under the law in most states, an Architect cannot seek indemnification for his or her negligence - no professional generally can.

The bottom line is simple - practice Architecture and let the Lawyers practice law.  Seek an opinion from an Attorney knowledgeable in the law in your state.  I know that costs a little money and it isn't what most Architects want to hear, but it is sound advice and there are a multitude of good reasons for it.

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Frederick Butters FAIA, Esq.
Frederick F. Butters, PLLC
Southfield MI
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Actually - that is a method of illustrating what the discussion appears to be, but let me put it into perspective.

I have spent the last 23 years defending design professionals on malpractice claims.  On more occasions than I would like believe, I have seen instances where an Architect acted on mistaken information.  Perhaps the most common error is getting some sort of agreement from a client to the effect that the client absolves the Architect of any liability arising from a particular decision, and agreeing to make good any losses arising out of a decision - i.e.; hold harmless and indemnification.  The problems with that approach are as I outlined earlier - and that answer is not a magic bullet, but is instead wrought with peril.  The reality is that legal issues, like design issues, are never as simple as they seem.  When I say non-Architects should stay out of design decision making, that is for good reason (and a few Architects as well - I haven't practiced Architecture in 23 years and although I hold a current license and an NCARB certificate, the truth is I am not competent to make design decisions).  Likewise, when I say non-Attorneys should stay out of legal decision making that is for good reason as well. 

My views are probably more focused because I have seen what many if not all of you haven't.  Sit across the desk from a 60 year old client and explain to him that legal decision he made didn't work the exculpatory result he thought it did.  Explain to him that the claim is probably solid at somewhere north of $2M, and then explain that insurance coverage is capped at $1M - and that balance declines as Attorney fees, expert fees, and costs eat away at it.  Watching him start to cry has something of a sobering effect.  Watching a defendant run out of the courtroom and vomit in the hallway after a jury returns a stiff verdict against his firm does as well.  That reality is complicated by the fact that while the system generally gets things right if you do it from where I sit long enough, eventually you win one you have no business winning.  Flip that coin over and you lose one you have no business losing.  Even when you are right there can be no guarantee you will get the right result.

I see all sorts of answers proposed, and all are unfortunately are speculation, and none (at least none I have seen yet) are the sort of advice on which one would predicate a proper risk management decision.  My point is simple really - what is learned from an Attorney or a Carrier is valuable information and may well apply to that particular circumstance in that state, but given the fact that there are no two states with identical law, that most certainly will not apply in another circumstance in another state.  That said, from my perspective this sort of decision making is serious business and even the most simple question handled innocently but mistakenly it can and does have disastrous, life changing results.  Whether addressing it in a loose manner constitutes the practice of law or not, my fear would be that someone may act on what they read and come to believe . . . . a fear substantiated by the fact that I have seen it happen.  Reality, unfortunately, can be tough, and to the extent possible I would like to see friends and colleagues take that to heart. 

I have tried to bring to bear the benefit of my experience so that others don't suffer the fate I have seen dealt to some.  That is rare for sure, but it does happen, and I would prefer to see sound risk management decision making rather than acting on what someone may think "should be" the case.  If my comments cause that to happen, then I think I have done some good.  If they cause a chilling effect on discussion, in my view that may be the price paid - and a fair price paid - for advocating a sound approach to important decisions.  However, I have no inherent need to try and offer my experience for the benefit of others, in fact loose decision making in this realm probably if anything contributes to my business.  Nevertheless, I don't wish to intrude where I am not wanted and will reconsider whether I continue to try and make any contributions.

 

Thank you

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Frederick Butters FAIA, Esq.
Frederick F. Butters, PLLC
Southfield MI
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Original Message:
Sent: 04-13-2014 12:36
From: M. Gaskins
Subject: Requests for re-printing of CD's for third parties

Frederick,

While you certainly have the right to say what you say here and is indeed very good information I find it chilling to the entire purpose and discussion of this knowledge net.

Do you really believe that people here are practicing law or just sharing their experience. It is very valuable to hear others experience in relation to our own situation. Attorneys do not provided that relationship but other architects do. I would also hope that those who utilize this sharing also know to get actual legal advice before proceeding.

I find what you say thought provoking and educational in the most part but also feel chastised for daring to share my experience and thoughts. My experience includes discussions with attorneys and our insurance carriers in the course of my practice.

I hope you will always be here... will share your knowledge and thoughts... and teach us what you know... in a way that promotes the discussion and sharing and does not chill it.

Thanks you for your contributions.

Bradley
Sent from my iPad

M. Bradley Gaskins, AIA, CASp, Principal
The McIntosh Group, LLC
1850 S Boulder, STE 300
Tulsa, Oklahoma 74119

w 918.585.8555 x12 * c 918.671.0975
BGaskins@TheMcIntoshGroup.com

TheMcIntoshGroup.com
TMGADA.com

While I haven't had this exact situation, I would never want to miss the chance to start a new relationship with a new client.

At a firm I have worked for in the past, when we had to pull old plans up and make copies, we always just charged a fee and then included a disclaimer with the plans, that given time and change the drawings should no longer be interpreted as existing conditions.

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Michael Nelson AIA
Project Architect
HDR Architecture Inc.
Minneapolis MN
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We had a similar situation where we designed a restaurant upfit in a tenant space and the restaurant closed after about 2 years.  The landlord/developer contacted us after about 3 years and requested a copy of the upfit drawings.  We had no relationship with the developer.  We stated that we would contact the original owner that was our client and if she approved we would call them back and let them know what it would cost for a copy.  The client declined to release the drawings, and we notified the developer of the client's decision.  We do own the rights to the drawings, but feel like it is appropriate to consider the client's (or former client's) concerns or preferences in a situation like this.  The only exception would have been if we had been hired to design a new tenant upfit for that same space, then we would have used our old drawings as a starting point.  Even then, we would not have handed them to a third party. 

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Robert Smith AIA
Architect, AIA, LEED AP
Talley & Smith Architecture, Inc.
Shelby NC
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sticky issue.  Generally we would provide the drawings if they paid for the printing.  Given the time that has passed, there should not be liability issues, and be sure to communicate any concerns, clarifications or other information you deem necessary.  The advantage of providing information is that it opens dialogue and is cheap marketing that might result in a contract for new work.

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Kerry Hogue AIA
HKS, Inc.
Dallas TX
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Michael,
I can appreciate your stance on reproducing plans for a third party.

Have you ever worked on a remodel project and wish you had the original construction drawings?  I recommend you have them sign a release of liability and an indemnification that clearly states your concerns about re-use of your work and the fact building changes may have occurred since the original project was completed.  Something similar to an electronic file request release that I am sure your insurance carrier has asked you to use.

Then charge a nominal fee that covers your time plus a little extra to make it worth it to you and covers the printing cost.  You may end up getting the next job from them because they like your work or because you were easy to deal with when they requested the drawings.

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James Henderson AIA
Architect
Henderson Architect
Santa Rosa CA
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Personally, I would never do this if the project completion was that long ago.  Unless you ate at the place every day and knew the building intimately, its best to stay away.  Another possibility is to offer to do as built condition drawings of the existing place.

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Daniel Caudy
The Office of Daniel C Caudy
Elmhurst IL
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Tom Donoghue, AIA, Principal
Donoghue Project Consulting, LLC
Pittsburgh, PA

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Michael,

The range of replies, so far, illustrates the possible spectrum of positions.  All good opinions.

I am more businessman than designer.  I spent the largest part of my career as the client and did a lot of renovation work.  We architects tend to stand inside the profession, looking out.  The first rule of business it to stand in the customer's place, looking in.  Then look at it from inside. And, do consider the risks and rewards.

Customer's point of view:

"What a schmuck.  He won't even share a simple drawing of what I can see in the building.  What is the secret?"  OR  "There is a lot more to this than I realized.  This guy was really helpful.  Maybe I should get on my team?"

Architect's point of view:

"What a pain.  I'm not going to spend my time digging out some old drawings,  getting them printed, and putting them back in the archive."  OR  "For a small fee we can dig out these plans and share them as a form of paid marketing.  Might even pick up a client!"

Risk & Reward:

"This guy misuses our documents and we get dragged into some mess."  OR  "We cover our costs plus a fair profit by serving this small part of our market."  Maybe it leads to nothing.  Maybe we get a friendly, cooperative reputation and that helps us land more work.  You measure risk by considering the likelihood and severity of the negative outcome.  You mitigate risk with disclaimers or indemnification.  You measure reward by considering the likelihood of the positive outcome.  You enhance the reward by building reputation and fertilizing the opportunities.

My response:

"Sure, glad to help.  I can have someone retrieve those documents early next week and have them copied.  Stop by our office on Thursday to pick them up.  I also have a short release form for you to sign.  You will want to be careful that someone doesn't use those documents in the wrong way and cause you a lot of trouble.  Retrieving and printing the drawings should only cost about $(Some reasonably small amount that leaves you whole.)

Of course, you don't give them copies of stamped drawings.  You have them sign a simple release about how they are not to use the documents.  You ask them about their project and how they are going about it.  You educate them about the opportunities they have and you ask them a leading question like "What project delivery methods are you considering?"  They ask you to explain that question and you have a sales lead.  Works for me.

 

Happy Marketing,

Tom

Michael,

I have run into this situation many times over my career, but on the other side.  Often times, I would be representing a developer interested in a piece of property and we would request CAD files to use in developing preliminary concepts during the due diligence phase.  If the previous Owner's had met their financial obligations to the original architect, nine times out of ten it wasn't a problem.  I would suggest you have a waiver drafted by your attorney that absolves you and or your company from any liability once the drawings are released.  You may even charge a small fee for the service.  Most developers would consider it the cost of doing business.  

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Paul Bourbeau AIA NCARB
Senior Project Architect
PROCON
Hooksett, NH 03108
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I'd definitely try to place a value on the information you possess, that is not owned by any right of the new entity making the request. One approach might be to offer the data at a value competitive with what one might determine the value of a 3rd-party's field survey and digital recordation of the space to be. That would effectively gain you compensation for the value of the data you provide, and that you would ultimately lose by otherwise denying the request. And if you want to try to build, or test the fledgling relationship, you could also consider offering a significant discount (or credit of the full fee) if development of the revitalized space is contracted to you...Good luck.
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Tim Bakos, AIA
Director, Project Delivery
Gensler
Washington DC