-Partners in Practice -

It is known in the law as the doctrine of informed consent. What it means is this: A person whose well-being may be adversely affected by the exercise of another's professional judgment has a right to be informed of the alternatives available and the risks involved. This right has imposed on some professionals a duty--to inform and, as a practical matter, to seek the informed consent of those who ultimately have to bear the consequences of risk-taking.

Traditionally this duty has been restricted to professionals whose decisions could impair the health or physical well-being of another, principally doctors. The courts have been unwilling to extend it to those dealing with economic risks. Thus, it has not been imposed on architects and engineers. There are, however, those who argue that it should be.*

The reason that an owner of a building project ought to be accorded a right similar to that of a patient facing surgery: Where major design alternatives are considered, alternatives involving important trade-offs between risks and benefits, the decisions ought to be made by those whose interests are directly affected. Otherwise, they argue, architects and engineers who act on untested assumptions about client priorities and preferences should be held responsible for damages suffered as a consequence--damages arising not out of negligence, but out of result inconsistent with expectations or in some way less than ideal.

Consider a situation like this one: You have been selected by a small municipality to design a long- awaited and much debated library and community center. The budget is thin, but you believe it can be made to work. Much of what the community cannot afford in terms of expansive space can be accomplished through careful design. You propose open ceilings and a large sloped glazing installation, and the city council's response is enthusiastic. Months later, to the relief of everyone involved, bids come in within budget, and a contract is rewarded.

The ensuing eighteen months are not without problems, but with great effort and extraordinary cooperation, construction of the center is brought to a successful completion. Everyone is delighted with the outcome--until it becomes clear, with solar heat gain in summer, heat loss in winter, the effects of condensation, and the need for frequent cleaning and replacement of glass, that utility and maintenance costs are consistently running more than double the amounts anticipated in the city's operating budget.

Meetings are held. Distrust mounts. In the end, the political leadership of the community, faced with what it considers to be unacceptable alternatives, turns the problem over to the City Attorney. "Could our library have been designed," he asks, "to control, more effectively, these ruinous costs?" The answer, of course, is: "Yes, but...."

The trade-offs at this point make little difference. Armed with the clarity of 20/20 hindsight, the City Attorney wants only to know: "Why were we not informed and given a reasonable choice?" The ensuing lawsuit demands damages in the amount of the excess utility and maintenance costs the city claims it will incur over the life of the center. It alleges, among other things, breach of a duty to inform.

Since when have architects and engineers been charged with a responsibility to produce a perfect outcome? The answer is, they have not been. The law requires only that you exercise a degree of care consistent with that which is usual and customary within the profession. This standard does not include perfection, nor does it necessarily require that you involve your clients in the design decisions you make. But simple prudence may, and for this reason alone, the legal arguments supporting a duty to inform may well be irrelevant.

As one example, the law already requires you to exercise great care with new technologies (or new applications of existing technology). It demands that you make extensive inquiries, conduct exhaustive tests, and carefully document representations made by the manufacturer. Once you have done all this, you can keep your fingers crossed, for if something should go wrong, you can be reasonably certain you will be among those invited to participate in explaining to the court just who was responsible.

Why not bring your clients into the decision-making process instead? They are the ones who will benefit if all goes well; they are the ones who will have to be prepared to deal with the consequences if problems arise. Rather than an onerous duty somehow imposed by attorneys loose in the land, disclosure may well be the best opportunity you have to improve cooperation, strengthen understanding, and reduce the risk of unnecessary claims.

Casting about for a means of "striking back" once dissatisfaction with professional performance reaches a breaking point is not all that uncommon. Plaintiffs' attorneys, knowing they will have to prove negligence or breach of contract, have not hesitated in the past simply because the real source of their clients' problems had little to do with either. They have plunged in, demanding countless documents, seeking answers to nearly endless interrogatories, and commanding your presence at depositions designed for nothing quite so much as uncovering the Achilles' Heel in any defense you might be able to mount.

That they may not succeed in the end is of little consequence. Most often they do not. What they do accomplish is to impose enormous cost, great emotional strain, and irrecoverable disruption to your professional practice. Their game is to wear you down by making the stakes so high that an offer to settle what you may consider to be an unjust claim will seem like a welcome alternative to continuing the battle.

These are the real costs of dealing with the professional liability threat, and most often, they can be avoided. The essential element is clarity of understanding with your client as to what goes into a project, and what is likely to come out of it.

By giving your clients the opportunity to make important decisions about how their resources are allocated as the work goes on, you can create the opportunities you need to produce an outcome consistent with their expectations. Tell them about the risks inherent in the new technologies you are considering; let them know in advance what they can expect by way of unusual maintenance requirements; give them the choices between cost and performance; and be certain they understand the consequences of the decisions they make. These steps can take you a long way toward the satisfactory result both you and your client had in mind when you shook hands and embarked on the project in the first place.

* Shapiro, Richard M., "Design Professionals: Recognizing the Duty to Inform," 30 Hastings Law Journal 729 (1979).

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