Vol. 7 No. 11		November 1988

The style is classic, the expression one of strained incredulity: "Do you mean to tell us that you do not intend to comply with the law?" Why else would you object to a contractual provision requiring nothing more of you than "...compliance with all laws, codes, ordinances, and regulations..." in the performance of your services? Well, for one thing, it is uninsurable.

There are three other, perfectly valid reasons: 1) You cannot possibly know or even come to know all of the laws, codes, ordinances, and regulations which may somehow apply to your current project; 2) even if you did, there may well be conflicts among them you will have to reconcile; and 3) laws, codes, ordinances, and regulations are all subject to interpretation and change. Compliance, in short, is often a matter of professional judgment.

What on earth is your client's attorney seeking to accomplish with this language? The law requires you to comply with the law. It also recognizes that there are times when strict compliance may not be appropriate; dashing across a busy street to save a life makes more sense than worrying overmuch about the consequences of jaywalking, for example. It deals with this possibility by also requiring that you be reasonable as you go about doing what you do. The compliance requirement is, quite simply, silly. The only problem is, you are not likely to get very far by pointing out that it must have been drafted in a mindless frenzy of wordmanship. You are going to have to explain patiently just why it is inappropriate, and you are going to have to be prepared to suggest alternatives which meet your clients' perceived interests without compromising your own.

That meeting the requirement is impossible ought to be obvious, not only to your client, but to his or her attorney, as well. Sometimes it is not. There are enough laws, codes, ordinances, and regulations loose and about to fill a library. Any of them could have an impact on your design. It is not reasonable for you to be expected to know every one of them; you can only reasonably be expected to exercise usual and customary professional care in your efforts to apply the law to your practice. Nor could you hire an attorney, not even your client's attorney, who would be willing to research the issues and extend the guarantee your client is apparently seeking.

The law requires you to exercise reasonable professional judgment. If you do not, and if someone is injured as a result, you are likely to be found to be negligent. An obvious violation of a clear building code may even be found to be negligence per se, an act so clearly unreasonable that no further discussion of the standard of care is necessary. The law does not, however, require that you exhaust your every available resource tracking down arcane statutes and marginally applicable regulations about which most architects and engineers practicing under similar circumstances would remain blissfully ignorant.

Moreover, your client may not understand that the law does not always provide clear direction. There may be conflicts and contradictions between Federal regulations and local ordinances. State law may be at odds with the Uniform Building Code (UBC). The UBC itself is subject to the vagaries of interpretation. Where does this leave you? It may leave you with a contractual requirement you simply cannot meet unless you find a less onerous approach to articulating whatever it is that your client has in mind.

Generally speaking, what the law requires of you as a professional is the maximum you can insure. With one, very limited exception, you cannot insure voluntary assumptions of liability under contract. The compliance requirement represents just such an uninsurable assumption of liability. For your client to ask you to commit to an obligation you can neither meet, nor insure is not reasonable. Life is too short, and your profits are too modest.

Sometimes the best way to respond to the carefully crafted work of learned counsel is to alter it as little as possible. It is a way of carving out a path of least resistance by preserving pride of authorship and, at the same time, effecting reasonable compromise. Rather than delete the compliance provision in its entirety, which may not be your best course of action in any event, you might suggest one of the following alternatives:

1. Delete the word "all". Without this sweeping modifier, the provision requires nothing more of you than the obligation you already have under the law to exercise reasonable judgment in the performance of your services. This is not the least ambiguous of your options, but, subject to the advice of your attorney, you can probably live with it.

2. Tie your commitment to the standard of care. You might do so by changing the language to read along the following lines: "The Architect/Engineer shall exercise usual and customary professional care in his or her efforts to comply with all laws, codes...." Attorneys are rather fond of adjectives like "all," and this is a way to redefine its meaning, should "all" somehow become the sticking point.

3. Limit your obligation to your best efforts. "Best is another of those superlatives that appeals to the aggressive legal mind. Here is a third approach you might try involving its use in a relatively innocuous context: "The Architect/Engineer shall put forth his or her best professional efforts to comply with all laws, codes...." Your best is not subject to the same ingenuous second-guessing as the best.

Review these options with your attorney. Some are marginally stronger and less ambiguous than others, and you will want to understand the differences. Then you can identify the approach you prefer and hold the others in reserve just in case you need a fallback position.

Finally, you might even turn the initiative your client's attorney has taken to your advantage. Laws, codes, ordinances, and regulations are subject to change, and you cannot reasonably be expected to gear your design efforts to hit a moving target. This seems straightforward enough, but unrealistic expectations have a way of growing in the dark.

Why not clarify this point with a simple stroke of the pen? Consider this option: "The Architect/Engineer shall exercise usual and customary professional care in his or her efforts to comply with those laws, codes, ordinances, and regulations which are in effect as of the date of this Agreement ." This should put you in the happy position of getting paid for your efforts, without dispute, in the event you are required to implement changes to your design because of regulatory developments you can neither predict, nor control.