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THE TASK OF DELIVERING GREEN OR SUSTAINABLE BUILDINGS requires the coordination of many parties in the chain of asset management and construction. Arguably, one of the more important figures in this process, particularly for new buildings and in the perception of the public at large, is the architect. Owners and developers commonly look first to architects for help with realizing their building plans. Even more important, they look to architects for counsel on designing their building projects to get the desired functional and performance outcomes. The American Institute of Architects (AIA) has recently taken up the idea of sustainable building as a signal attribute of the future of the architectural profession. (1) Surprisingly, this new position poses a disturbing new relationship between the architect and the client, which may have far-reaching consequences.
Like any professional, an architect is simply an educator. Indeed, no architect actually makes design decisions for a client. Instead, the architect merely educates clients so that they cab make intelligent choices. That education defines the architect's obligations to the client, obligations commonly referred to as "standard of care." The architect has a duty to use ordinary care in meeting that standard. The architect who does so will, in theory, avoid liability.
Although contracts and codes often benchmark the architect's duty, the profession itself actually sets the standard of care. Though the actual language will vary, standard jury instructions in most states define the standard of care as "doing that which the average similarly situated professional would do, or not doing that which the average similarly situated professional would not do." In a judicial proceeding, that standard is typically established through expert testimony--an architect whose testimony reflects and benchmarks the architect's level of obligation. The architect's conduct is measured against that benchmark. Where the conduct falls short, malpractice has occurred.
Since the day-to-day practices of the profession establish the standard of care, the profession itself changes the standard of care as the architect's commonly accepted practices and competencies change. Such changes have always occurred, usually on an incremental basis. However, with the onset of sustainable or "green" design, the standard of care has begun a dramatic upward push. Today's architect must acknowledge that change and the attendant risk, if he or she is to continue providing clients with appropriate services in the sustainable world.
THE ARCHITECT/CLIENT RELATIONSHIP
In addition to the educational element, the architect/client relationship is one of trust. All but the most experienced clients find the design and construction process bewildering. Contracts, forms, approvals and paperwork are complex and extensive. Even the language is different. Simply put, the client hires the architect to assist him or her in negotiating the process and obtaining a final acceptable result. The client has a right to rely on the advice the architect renders, and expects to do so. Ultimately, if the client forms reasonable expectations regarding the architect's services, the law will likely recognize and enforce those expectations.
While the architect often views the project from an aesthetic perspective, he or she must also recognize that nearly all clients view the project from a financial perspective. Many clients simply don't care about the architect's aesthetic "adventure." Although many clients do have aesthetic tastes and some pursue social goals in their projects (for example, some clients will pursue sustainable ends simply because "it is the right thing to do"--but even then, within some overall financial constraint), most clients are interested in three things, each of which directly affects their bottom line. First, what will the building look like? Second, when will the project be completed? Finally and most important, what will it cost?
To manage risk, one must first appreciate risk. To manage the evolving risk associated with sustainable design, the architect must understand that simple economics motivates many clients. If it costs more, the owner will generally expect that there must be some added value; since sustainable projects cost more (virtually all objective evidence supports that conclusion), they must be providing some additional tangible or intangible benefits to the client/owner.
THE ONSET OF GREEN OR SUSTAINABLE DESIGN
For decades the design and construction industries effectively ignored the long-term energy impacts of their buildings. The blame can properly be shared by the architectural profession and owners, and was consistent with "pre-green" views on energy costs. Since energy was relatively cheap compared with the cost of design features that maximized energy conservation the economics drove design away from concepts that now are termed sustainable.
Today, the economics of energy (including the added weight given to long-term considerations) is driving owners toward design options for sustainable performance outcomes. This is not to say, however, that the economic benefits are clear-cut. Although the client may decide to incorporate sustainable features into a project for a variety of reasons, such features still cost money, and in virtually every case, some additional money (how much more is very project-specific, but the core fact that sustainability costs money really isn't in dispute). While it may he possible to do a sustainable project that as an overall budget proposition costs the same as a similar non-sustainable project, it is then necessary to fund Unsustainable features through cost reductions w other areas of the project scope. The absolute bottom line is simply that sustainable features cost some money. The architect's advice is implicated in the decision to proceed with those features. This is especially true when the sustainable options require a life-cycle analysis to ascertain return on investment or environmental benefits. Consistent with the recent developments in sustainable design thinking, the architect actually becomes an advocate for those options and features. Where the client adopts those options and features and spends some incremental amount, the client expects to receive a reasonable return. If the law determines that these normal business expectations are reasonable for a client to hold, the architect will be called to answer if those expectations fail to materialize.
A common example involves the task of roof selection: in the interests of being "green," an architect specifies a light-colored single-ply membrane roof material without a long-term track record. The material must be replaced every 10 years. By contrast, use evidence suggests that an environmentally unfriendly coal tar pitch alternative will last 30 years. At the end of 60 years, the second coal tar pitch roof is just nearing the end of its life while the sixth single-ply roof is coming to the end of its life. In addition to the recurring cost of replacement, which approach results in less energy consumption and environmental impact when one factors in the installation of two roofs versus six? If the architect's environmental or green concerns trump the client's economic interests, a lack of candor on the part of the architect may prove problematic. The difficulty with advocating, as every attorney knows, is the temptation to omit negative facts or to shade the facts in an effort to convince.
RECENT DEVELOPMENTS IN "SUSTAINABLE" THINKING
The AIA has thrust itself into the forefront of the sustainable design debate. With more than 83,000 practitioners among its members, the AIA represents a large percentage of the practicing architectural profession and plays a leadership role in establishing the standard of care. The standard of care applies to all practitioners whether or not they are AIA members. Several recent developments implemented by the AIA have had a direct and immediate impact on the standard of care.
As noted above, contracts can be a source of the architect's duty. The most recent iteration of the AIA documents is no exception. Looking at AIA B101 -2007, the standard form of contract between architect and owner, sustainable duties are immediately apparent. That document provides, in pertinent part:
3.2.5.2 The architect shall consider environmentally responsible design alternatives such as material choices and building orientation, together with other considerations based on program, and aesthetics that are consistent with the Owner's program, schedule and budget for Cost of the Work. (Emphasis added)
Thus under the AIA contract, for the very first time, the architect is actually required to consider and evaluate green or sustainable design alternatives as part of the base services.
The AIA Canons of Ethics create and impose similar duties, taken one step further. Under the modern Canons, the architect now actually has duties running to the environment. In that regard, Canon IV - Obligations to the Environment, specifically provides:
Members should promote sustainable design ...
E.S.6.1 Sustainable Design: In performing design work, members should be environmentally responsible and advocate sustainable building and site design.
E.S.6.2 Sustainable Development: In performing professional services, members should advocate the design, construction and operation of sustainable buildings and communities.
E.S.6.3 Sustainable Practices: Members should use sustainable practices within their firms and professional organizations, and they should encourage their clients to do the same. (Emphasis added)
Aside from the novel idea that the architect has professional duties running to someone other than his or her client, the current Canons reflect a more fundamental shift. Rather than simply educating the client as necessary to place the client in a position to make an informed choice, the architect is now expected to "promote," "advocate" and "encourage" a "sustainable" course (although the Canons leave to the imagination exactly how "sustainable" might be defined). Indeed, the architect must actually become an advocate for that undefined "sustainable" result. Since responsibility and liability are inextricably linked, where the architect is responsible for advocating a particular design approach, the architect certainly will be liable in the event that an advocated design approach does not achieve the desired result.
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