David Stutzman
Architects are obligated to protect the public as a primary duty, but not the only duty. We wrote about architects having a fiduciary duty to the owner and the owners' right to have trust and confidence in their specifiers. All these duties exist simultaneously. However, the fiduciary duty of care and loyalty to the owner is primary. Protecting the public interest is accomplished by caring for the owner.
Protecting public health, safety, and welfare is a duty imposed on the architect by virtue of being licensed. By granting the license, the State expects architects to act ethically and comply with applicable laws of the State. In New Jersey, for example, the licensing regulations Subchapter 5 setting rules of professional conduct states:
13:27-5.1 COMPETENCE
a) An architect shall at all times recognize the primary obligation to protect the health, safety and welfare of the public in the performance of professional duties.
When acting as a fiduciary, the architect must always act in the owner's best interest. If the owner should direct the architect to proceed with a design in a manner that would violate applicable laws, including the building codes, then the architect will have a duty to provide notice to the authorities having jurisdiction. Again, the New Jersey professional conduct regulations require:
13:27-5.2 DUTY TO REPORT AND COOPERATE
a) If, in the course of his or her work on a project, an architect becomes aware of a decision taken by his or her employer or client, against the architect's advice, which violates applicable … statutes, ordinances, and regulations and which would … adversely affect the health, safety and welfare of the public, the architect shall:
1) Report the decision to the [authority having jurisdiction].
2) Refuse to consent to the decision.
3) … [T]erminate his or her services with reference to the project.
Regardless of the result, the architect is still protecting the owner's best interest through his or her fiduciary duty by exercising professional judgment in evaluating the request, by educating the owner about the consequences, and by helping the owner give an informed consent rescinding the initial direction and to construct a building that does comply with laws and regulations. Only if the owner remains steadfast with the initial direction, the State determines the outcome.
In either case, the architect protects the public from the danger of a non-compliant building. The architect also protects the owner from the risk of his inability to secure a permit, occupy the building, and heaven forbid a catastrophic failure after occupancy. Public health, safety, and welfare is preserved and fiduciary duty is fulfilled, simultaneously.