PROFESSIONAL LIABILITY UPDATE

Some lawyers may create more potential professional liability over the coming months by drafting a single letter in response to their client’s independent auditor’s request for information than they will throughout the entire rest of the year.

The problem arises primarily because after 40 years of writing these letters to independent auditors, too many attorneys and auditors have concluded the entire process is a colossal waste of time.

As a result, too many, especially solo attorneys and small- to mid-size law firms, have failed to develop and implement appropriate internal policies to insure they handle these auditor’s requests according to the professional standards required of them.

Consequently, a sizable number of attorneys remain blissfully unaware of the specific duties owed and the professional liability created when done so improperly, leading to a waiver of client confidentiality, misleading financial reports, and host of other problems.

The American Bar Association issued its first “Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for Information” on January 7, 1976, and have updated it twice since in 1998 and 2003.

And yet, outside of a very few attorneys in the large, downtown corporate law firms, few attorneys responding to these requests have ever read the ABA Statement of Policy, much less the American Institute of Certified Public Accountant (AICPA) rules.

The auditor’s request for information to a client’s attorney arises from the generally accepted accounting principles (“GAAP”) with respect to loss contingencies set forth in Accounting Standards Codification (“ASC”) 450-20 (formerly Statement of Financial Accounting Standards No. 5).

The AICPA requires an attorney’s client to account for a loss contingency if two conditions are met:

• “Information available before the financial statements are issued or are available to be issued . . . indicates that it is probable that an asset had been impaired or a liability had been incurred at the date of the financial statements” and
• “The amount of loss can be reasonably estimated.” Six factors should be considered when the accountant assesses the probability of an unfavorable outcome for the contingency;
• The nature of the litigation, claim, or assessment;
• The progress of the case (including progress after the date of the financial statements but before those statements are issued or are available to be issued);
• The opinions or views of legal counsel and other advisers, although, the fact that legal counsel is unable to express an opinion that the outcome will be favorable to the entity should not necessarily be interpreted to mean that the condition [for accrual] is met;
• The experience of the entity in similar cases;
• The experience of other entities;
• Any decision of the entity’s management as to how the entity intends to respond to the lawsuit, claim, or assessment (for example, a decision to contest the case vigorously or a decision to seek an out-of-court settlement).

If any one of the conditions are not met, the accounting standard requires the client to disclosure the contingency only if it is reasonably possible that a loss may have been incurred. In such case, the disclosure must include an estimate of the loss, but only if the loss is estimable. No disclosure is required if the loss is remote.

The client owes no duty to disclose a loss contingency of an unasserted claim “if there has been no manifestation by a potential claimant of a possible claim or assessment” unless: (1) it is considered probable that a claim will be asserted; and (2) there is a reasonable possibility that the outcome will be unfavorable.

In response to the AICPA’s standards, the ABA issued its own “Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for Information” (the “ABA Statement of Policy”). Together, the two documents, often referred to as the Treaty.

The two standards seek to balance the client’s auditor’s need for information with the client’s attorney’s duty to protect the client’ confidential information.

It should be noted, however, that the accounting profession continues to insist that the ABA Statement of Policy does not control, and it is the AICPA standards that govern the auditor’s request for information.

The ABA Statement permits an attorney to ethically comply with an auditor’s request for information under limited circumstances. First, no attorney should ever disclose information to the client’s outside auditor without the client’s written consent.

The attorney, however, shall not disclose to the auditor a confidence, a secret, or an evaluation of a claim. The ABA Statement cautions that an adverse party may assert that any evaluation of a potential liability is an admission by the client.

The attorney must always be cognizant that a client’s voluntary request for disclosure to its accountant almost always waives the attorney-client privilege. United States v. Deloitte, 610 F.3d 129, 139-40 (D.C. Cir. 2010).

Federal law, and few states, provide any confidentiality protection to an accountant’s work-product. United States v. Arthur Young & Co., 465 U.S. 805 (1984). Even an attorney’s oral communications to the auditor are not privileged if the auditor includes the discussions in its work papers. United States v. Deloitte, 610 F.3d at 143.

Otherwise, the attorney may disclose information to the auditor without further client consent for:

• overtly threatened or pending litigation, whether or not specified by the client. The ABA Statement of Policy defines “overtly threatened litigation” to mean that “a potential claimant has manifested to the client an awareness of and present intention to assert a possible claim or assessment unless the likelihood of litigation (or of settlement when litigation would normally be avoided) is considered remote.”
• a contractually assumed obligation when the client specifically identifies and requests disclosure in the inquiry letter;
• an unasserted possible claim or assessment the specifically identifies and requests disclosure in the inquiry letter. “Unasserted claims” are matters “where there has been no manifestation by a potential claimant of an awareness of and present intention to assert a possible claim or assessment.” Disclosure of an unasserted possible claim is required only if the enterprise concludes that (1) it is probable that a claim will be asserted, (2) there is a reasonable possibility, if the claim is in fact asserted, that the outcome will be unfavorable, and (3) the liability resulting from such unfavorable outcome would be material to the client’s financial condition.

The ABA Statement of Policy requires an attorney responding to an auditor’s request for information should only offer an opinion on the outcome of litigation, in the rare case, when the outcome is “probable” or “remote.”

An unfavorable outcome for the client is “probable” if the prospects of the claimant not succeeding are judged to be extremely doubtful and the prospects for success by the client in its defense are judged to be slight.

An outcome is “remote” if the prospects for the client not succeeding in its defense are judged to be extremely doubtful and the prospects of success by the claimant are judged to be slight. The commentary in the ABA State provide examples of such situations, including the following:

• a catastrophe, accident or other similar physical occurrence in which the client’s involvement is open and notorious;
• an investigation by a government agency where enforcement proceedings have been instituted or where the likelihood that they will not be instituted is remote, under circumstances where assertion of one or more private claims for redress would normally be expected, or
• a public disclosure by the client acknowledging (and thus focusing attention upon) the existence of one or more probable claims arising out of an event or circumstance.

An attorney should never provide an estimate of the amount or range of a potential loss unless the attorney believes that the probability of inaccuracy of the estimate is slight. The ABA Statement of Policy also requires that the attorney must confirm to the auditor:

“the client’s understanding that, if in the course of performing legal services for a client with respect to an unasserted claim which may call for financial statement disclosure, the lawyer has formed a conclusion that the client must disclose or consider disclosure concerning the unasserted claim, the lawyer, as a matter of professional responsibility to the client, will so advise the client and consult with the client concerning the question of such disclosure and the requirements of ASC 450-20.”

The ABA Statement provides different illustrative examples of response letters for “inside” and “outside” counsel. In general, the outside counsel may limit its response to particular matters to which it provided substantive attention or representation; whereas the inside general counsel represents he has general supervision for the company’s legal affairs and has “reviewed litigation and claims threatened or asserted involving the Company and [has] consulted with outside legal counsel” where appropriate.

The ABA Statement does not specifically address government investigations of a client. Attorneys should consider most government investigations unasserted claims. The investigation may well constitute potential for a claim, however, the investigation has not ripened into an overt threat of litigation, claims, or assessments. The ABA Statement only requires the attorney disclose unasserted claims when the client specifically identifies them and asks the lawyer to comment.

The client may, however, request the attorney to report all investigations in the same manner the attorney would report pending litigation. Even where the client requests it, however, the Committee noted that in most cases, “the lawyer will not be able to provide any information to the auditor concerning the investigation other than the existence thereof and the fact of the client’s involvement.”

The Committee advised that whichever approach to reporting is adopted, the “approach should be consistently followed with respect to such client until the auditor has been advised of a change in approach.”

The attorney should clearly disclose to the auditor the limited scope of its engagement by the client, and that he is only disclosing terms considered material.

The attorney also should always provide the date on which any information is provided, and disclaim any ongoing agreement to update the information even when the attorney becomes of aware of changed facts or circumstances.

The ABA Statement contemplates that the attorney may incorporated the Statement by reference in the lawyer’s response by the following statement:

“This response is limited by, and in accordance with, the ABA Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for Information (December 1975); without limiting the generality of the foregoing, the limitations set forth in such Statement on the scope and use of this response (Paragraphs 2 and 7) are specifically incorporated herein by reference, and any description herein of any ‘loss contingencies’ is qualified in its entirety by Paragraph 5 of the Statement and the accompanying Commentary (which is an integral part of the Statement).”

While incorporating the ABA Statement by reference is permitted by Paragraph 8, the attorney, however, should consider instead stating clearly that the auditor alone shall use the letter solely in connection with the audit of the client.

The attorney also should state the letter shall not be quoted in any financial statements of the client or related documents. The attorney also must state that no one, including the client, should file it with any governmental agency or other person, without the attorney’s prior written consent.

As discussed above, the ABA acknowledges that an auditor may assume the lawyer, as a matter of professional responsibility to the client, will advise the client concerning the question of such disclosure is required and of the applicable requirements of FAS 5.

The ABA makes clear that every attorney owes a professional obligation to not knowingly participate in any violation by the client of the disclosure requirements of applicable securities laws.

The ABA or applicable state code of professional responsibility also may require the attorney to resign his engagement under some circumstances if his advice concerning disclosures is disregarded by the client. The ABA Statement says withdrawal is very undesirable.

For more than a decade commentators have expressed that there appears to be a continual increase in the number of inquiry letters that do not conform to the ABA-AICPA Compromise. Firms should resist responding to inquiries that are outside of the ABA-AICPA Compromise. Some recent examples of non-conforming requests include:

• Request for information regarding financing statements filed under the Uniform Commercial Code;
• Request for information regarding assignments of the client’s assets;
• Requests for examinations of income tax returns; and
• Request for information regarding compliance with fiduciary duties.

The professional liability risk created from failing to follow the ABA-AICPA Compromise is real. For example, Sarbanes-Oxley Act heightened the risk of potential firm exposure in connection with responding to inquiring letters because attorneys are covered as “persons acting under the direction” of corporate officers and directors, and therefore, can be held liable if their actions are deemed, under a negligence theory, to “result in rendering financial statement materially misleading.”

Best professional practice demands that every attorney or law firm review the ABA-AICPA requirements before responding to Auditor’s Request for Information. Every law firm should implement an internal procedure for responding to auditor’s request for information. The procedure should at minimum include:

• Development of written firm policies and procedures to insure consistent implementation;
• Review and approval of acceptance of the Inquiry Letter to insure compliance with the ABA requirements;
• Designation of a single partner in charge of overseeing the initial draft;
• Firm review, approval of the initial draft, and execution of a final draft; and
• A designated partner and internal procedure to update prior response letters.

Those law firms who do not regularly prepare such audit’s request for information letters, would be well advised to consult with outside counsel to confirm that their internal procedures are sufficient and their letters comply with their professional liability requirements as set forth in the AICPA-ABA requirements without waiving client confidentiality. Firms who do neither must beware of the risks they assume.

To subscribe to the Professional Liability Update, click HERE, provide your contact information, and receive notice of our updates. 

Timothy B. Soefje is the Managing Member and head of the professional liability section at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at tsoefje@realclearcounsel.com.

Lawyers should move carefully before assuming the Supreme Court’s decision in the high-profile Masterpiece Cakeshop v. Colorado Civil Rights Commission case signals that lawyers too can refuse to represent a client solely because of the lawyer’s strongly-held religious beliefs.

On June 2, 2018, the High Court ruled 7-2 in Masterpiece Cakeshop that the baker could freely refuse service to a same-sex couple because it conflicted with his religious opposition to gay marriage.

The Court, however, avoided the larger question of whether a business owner could refuse the sale of items or services to members of the LGBTQ community, relying instead on the law as it existed in 2012 and the specific underlying facts of the case.

Because of the Court’s narrow ruling, some legal experts remain doubtful the decision will result in lasting judicial precedent.

The Supreme Court’s ruling in Masterpiece Cakes begs the question: if a baker may constitutionally refuse service to a client based on strongly-held religious viewpoints, does it follow that a lawyer should be able to do the same? In short, the answer is – it depends.

In general, lawyers are free to represent whom they choose. The ABA Model Rules of Professional Conduct specifically does not require attorneys to take on clients or causes that they find “repugnant.”

Whether that professional rule of conduct will continue to survive constitutional challenge if a lawyer rejects a client solely because of the client’s homosexuality or gay marriage remains to be seen.

Lawyers with strong religious beliefs should be careful whom they chose to represent.

While in ordinary practice, a court generally will help an attorney who takes on the representation of a client and then seeks to withdraw, permission by the court is not always granted especially where opposed by the client. Terminating representation during the middle of a case can be especially difficult.

For example, a request to withdraw may not be granted if withdrawal would materially prejudice the client’s ability to litigate the case or the facts giving rise to the request to withdraw are in dispute.

According to the American Bar Association Model Rule 1.16: Declining or Terminating Representation Client-Lawyer Relationship:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists;

(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Lawyers appointed by a court to represent a client, however, especially face an uphill path to refuse representation despite the holding in Masterpiece Cakes.

ABA Model Rule 6.2 states that good cause must exist in order to avoid appointment by a tribunal. The lawyer must show the “client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.”

Lawyers have been forced to represent racists, pedophiles, murders and all types of miscreants. Under current legal precedent, there is little chance any court would find a lawyer’s opposition to gay marriage or homosexuality would rise to the level necessary to avoid appointment if insisted on by the court.

In addition, ABA Model Rule 1.2 states that a lawyer’s representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities,” which was a key argument made by the baker in Masterpiece Cakes for refusing service of the gay couple.

There can be no doubt that Masterpiece Cake signals a new era of freedom for business owners to refuse service to customers based on personal convictions. But for now, attorneys should expect little change in their practices.

Inevitable, some attorneys will continue to be forced to represent clients even though it goes against their strong-held moral and religious beliefs.

To subscribe to the Professional Liability Update, click HERE, provide your contact information, and receive notice of our updates. 

Timothy B. Soefje is the Managing Member and head of the professional liability and construction defect group at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at tsoefje@realclearcounsel.com.

Autumn Keefer is a law clerk with the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. She will enroll at Southern Methodist University School of Law in the fall. Ms. Keefer holds a Masters Of Legal Studies from Texas State University.  For more information, visit us at www.realclearcounsel.com or contact her at akeefer@realclearcounsel.com.

Technology changed the way we think about everything. Ironically, some of the most technologically advanced professionals – architects and engineers – frequently fail to think about their professional liability risks created by the technology used during the construction process.

For example, a escalating trend for the last 10 years has been for clients to demand design professionals deliver their computer aided design (CAD) files both during the design phase and along with final, sealed construction documents.

This trend will only continue because CAD systems, previously cost-prohibitive, have become readily available to virtually everyone involved in the construction industry.

Clients and other third parties know that a design professional can now simply click and send their entire CAD file to virtually anyone in a matter of seconds.

That simple click-and-send step, however, can have serious legal consequences for unwary design professionals who have failed to negotiate strong contracts or obtain signed releases and indemnity agreements.

CAD systems have changed the construction process. They provide an efficient platform to facilitate the entire construction process. Changes during the concept and design phase, or changes need in the field during the construction phase, can be made quickly and easily.

CAD files, however, now make duplication and manipulation of designs relatively easy for anyone with access to the files, creating significant copyright issues for the design professional as well.

So what steps can a design professionals take to mitigate their professional risk from sharing CAD files and protect their copyrights?  Unfortunately, there is virtually no case law or statutes, and few industry standards, setting forth the standard of care for professionals who voluntarily or contractually chose to deliver CAD files to client or third party.

Generally, “professional negligence” represents a special case of negligence in which society holds members of a profession responsible for meeting a standard of care and competence. Black’s Law Dictionary defines malpractice as:

“Professional misconduct or unreasonable lack of skill. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or harm to the recipient of those services or to those entitled to rely upon them. It is any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.”

Just like old-school blueprints, CAD files are copyrighted instruments of service. Release of CAD files, therefore, is a matter that can, and should, be specifically negotiated in advance between the parties. However, experience reveals that few design professionals currently do so, and even more misunderstand their legal liability when they do deliver CAD files in one format or another.

Every design professional is wise to rely on industry standard contracts. For example, these standard templates include the American Institute of Architects (AIA) contracts available from the American Institute Of Architects; Engineers Joint Contract Document Committee (EJCDC) contracts available from the National Society of Professional Engineers; or alternatively, ConsensusDocs.

Each of the industry standard contracts have their own unique advantages depending on the circumstances. While sometimes the language of these contracts should be changed, design professionals should rarely negotiate terms different from these form contracts without the advice and counsel of an experienced attorney in the industry.

Unfortunately, none of these industry standard contracts specifically address the delivery of CAD files. Industry best practice suggests that any terms of engagement should make clear whether the design professional retains his intellectual property, and that this includes CAD files.

While some design professionals and insurance industry professionals contend that best practice is to avoid delivery of CAD files altogether, or at minimum delivery only .PDF copies and not the full .DWG files, reality suggests that clients who demand CAD files will find a design professional willing to deliver them in their native format, or move on to the next professional who will.

A design professional that agrees to deliver CAD files, should clearly set forth in their contract with the client under what terms and at what additional cost. While every circumstance is different, a design professional should consider after consultation with an experienced attorney including in either the original contract document or an exhibit required by contract to be signed by both parties prior to deliver and receipt of the CAD files, terms such as:

• All CAD files are instruments of service of the design professional, who shall retain all common law, statutory, and other rights, without limitation, including copyrights;
• The Client agrees the CAD files are not certified documents;
• The design professional makes no representations, warranty, or guarantee as to the compatibility of the CAD files with any hardware or software, or from modification or conversion of the CAD files into another format;
• The Client shall not use the CAD files for any purpose other than the project;
• The Client shall not transfer the files to anyone without the prior written consent of the design professional;
• The Client shall waive all claims against the design professional arising from unauthorized changes to or use of the CAD files;
• The Client acknowledges that differences may exist between the CAD files and the signed and sealed construction documents, and where such conflicts exist, the Client agrees the signed and sealed hard-copy construction control;
• The Client agrees that delivery of the CAD files does not constitute a sale or transfer of ownership by the design professional, who shall retain all ownership to the CAD files set forth in the contract, if any, including the right to demand their immediate return;
• The design professional by delivering the CAD files to Client makes no express or implied guarantees or warranties as to the files’ accuracy, title, non-infringement, and completeness, or merchantability and fitness for any purpose;
• The design professional shall not for any reason be liable for direct or indirect consequential damages caused by the Client’s use or reuse of the CAD files.
• The design professional reserves the right to remove from the CAD files all indicia of ownership or involvement by the design professional;
• The Client agrees the design professional has made no representations or warranties other than those set forth in this agreement;
• The CAD files shall not be considered contract documents;
• The Client agrees to defend and indemnify the design professional against all damages, liability, and costs, including attorney fees and litigation expenses, arising from (1) changes made to the CAD files by anyone other than the design professional, or (2) the transfer or reuse of the CAD files by anyone without the prior written consent of the design professional;
• The Client shall be obligated to pay any licensing, copyright, or other fees due to third parties arising from the transfer of the CAD files, and shall defend and indemnify the design professional from all claims of any kind arising from the failure to pay such licensing, copyright, or other fees owed.

Any design professional who agrees to release CAD files should be aware of the numerous, unpredictable risks associated with doing so.

• Stripping out indicia of ownership and involvement (ie., company logo, name, address, etc.) alone likely does nothing to eliminate or reduce potential legal liability contrary to what seems to be a common misconception among design professionals;
• Contain notes that may not appear on any plan, which could create unforeseen exposure for liability and privacy issues;
• Unintentionally disclose that other contractors or subcontractors previously unknown to the Client were involved in completing the CAD files;
• A strong defense and indemnity agreement signed by the Client can afford some protections but itself will do nothing to prevent a third-party from asserting a lawsuit against the design professional and still must be enforced against the Client who refuses to honor its terms;
• Some state and federal laws may overrule and render void indemnity agreements, warranties, and other disclaimers

Every design professional should anticipate clients that demand CAD files likely will become commonplace over the next few years.

As a result, they should plan now how best to respond to this trend, including engaging in internal planning and detailed discussions with their insurance broker and experience legal counsel to develop appropriate internal policies and procedures to avoid liability and protect their copyrights as part of their overall risk mitigation strategy.

To subscribe to the Professional Liability Update, click HERE, provide your contact information, and receive notice of our updates. 

Timothy B. Soefje is the Managing Member and head of the professional liability and construction defect group at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at tsoefje@realclearcounsel.com.

Samuel P. Baldwin is Of Counsel at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas. His practice focuses on the defense of professional liability, construction defect, and complex commercial litigation claims. For regular information about professional liability matters, follow him on Twitter at @Sam_Baldwin5 and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at sbaldwin@realclearcounsel.com.

Lawyers and law firms using “spymail” and other “tracking” software in emails sent to opposing counsel and clients are inviting an ethics complaint and potential disbarment as more and more states ban the use of this developing technology in the practice of law.

The specific technology, operation, and other features of such email “tracking” software vary widely, but essentially a sender may use email “tracking” software application embedded in each email to secretly monitor the opposing attorney’s and party’s receipt and subsequent handling of the email message, including any attachments.

In a recent advisory Opinion No. 18-01, the Illinois State Bar Association ruled an attorney’s use of such “tracking” software is unethical, holding:

“A lawyer may not use tracking software in emails or other electronic communications with other lawyers or clients in the course of representing a client without first obtaining the informed consent of each recipient to the use of such software.”

Illinois joins at least three other jurisdiction that have addressed this evolving area of technology and its impact on the legal profession. (See Alaska Bar Association Ethics Opinion No. 2016-01; New York State Bar Association Ethics Opinion 749; and Pennsylvania Bar Association Formal Opinion 2017-300.)

The Illinois committee began its analysis by stating the obvious to even the most technologically-challenged attorney: “an Illinois lawyer can no longer decide not to use email or to avoid dealing with electronic documents.” Illinois, like most every state including Texas and Oklahoma, now requires all pleadings filed in court include an email address to which service may be directed.

The Texas Supreme Court joined those states that decided email is here to stay when it amended the rules in 2014. Rules 21(f)(2) and 57, now require all pleadings and documents that are electronically filed to contain an attorney’s email address. See, Tex.R.Civ.P. 21 and 57. New Rule 21a allows parties to serve documents by email.

In its opinion, the Illinois State Bar committee held that because email is so pervasively used in the practice of law, the undisclosed use of email “tracking” software by a lawyer, without the informed consent of the recipient, conceals the fact that the sending lawyer is secretly monitoring the email message and violates existing rules of professional conduct.

“Any competent lawyer receiving an email from an opposing counsel would obviously wish to know that the opposing counsel is acquiring instantaneous and detailed private information concerning the opening and subsequent handling of the email and its attachments. At a minimum, concealing the use of tracking software constitutes “dishonesty” and “deceit” within the meaning of Illinois Rule 8.4(c).”

See, ABA Model Rules 8.4(c). The committee conclude this type of deception, if used in email correspondence with another lawyer in the course of representing a client, covertly invades the client-lawyer relationship between the receiving lawyer and that lawyer’s client. The committee concluded:

“If the professional conduct rules require lawyers to promptly notify the sender when client confidential information is received by inadvertence, to permit the sender to take protective measures, then those rules should not be interpreted to permit lawyers to procure the same type of information by stealth.”

New York State Bar Association Opinion 749 (December 14, 2001) was among the first in the country more than 16 years ago to hold that “in light of the strong public policy in favor of preserving confidentiality as the foundation of the lawyer-client relationship, use of technology [web bugs] to surreptitiously obtain information that may be protected . . . violate[s] the letter and the spirit” of the New York Rules.

In Alaska Bar Association Ethics Opinion No. 2016-1, the committee there cited two persuasive examples of such interference before concluding that the use of tracking software was unethical.

The first involved the attorney’s client who had moved and did not want her new location disclosed or known. If opposing counsel sends a tracked email attaching a document for to her attorney to be forwarded for her review or signature, the tracking software will reveal the client’s general location as soon as she opens the forwarded email to read or download the documents.

The second example explained that by inserting tracking software in an email forwarding a settlement proposal or contract for review, the sending lawyer could determine how often and how long the receiving attorney and opposing party reviewed any particular page of the settlement proposal. Such software gives the sending lawyer access to “protected information and extraordinary insight as to which sections of a document the lawyer and her client found most important,” the Alaskan opinion concluded.

Attorneys who might consider the use of such tracking software to only lead to a slap on the wrist should note that there is a long history of disciplinary proceedings, including disbarment, of lawyers who in the traditional sense just “eavesdrop” on opposing attorney’s confidential communications with a client. See, In re Neary, 84 N.E.3d 1194 (Ind. 2017) (four-year suspension of prosecutor who violated Indiana Rules 4.4(a) and 8.4(d) by eavesdropping on two private client-lawyer conversations).

There are no studies reporting how prevalent the use bof undisclosed “tracking” software (sometimes known as “web bugs,” “web beacons,” or “spymail”) might be among attorneys and other professionals. One can reasonably surmise it is more common that you might think.

More importantly, with the ever-increasing use of advanced technology among the millennial generation of attorneys who are beginning to emerge into leadership positions in firms, its use likely will become frequent in the absence of more states imposing these ethical restrictions.

Typically, “tracking” software simply inserts an invisible image or code into an email message that is automatically activated when the email is opened. Once activated, the software reports to the sender, without the knowledge of the recipient, detailed information regarding the recipient’s use of the message.

Depending on the vendor, the information reported back to the sender may include:

• when the email was opened;
• who opened the email;
• the type of device used to open the email;
• how long the email was open;
• whether and how long any attachments, or individual pages of an attachment, were opened;
• when and how often the email or any attachments, or individual pages of an attachment, were reopened;
• whether and what attachments were downloaded;
• whether and when the email or any attachments were forwarded;
• the email address of any subsequent recipient; and
• the general geographic location of the device that received the forwarded message or attachment.

The committee noted that tracking software is commonly used in various commercial settings, “ostensibly to gauge the effectiveness of marketing materials.”

The committee also noted that many basic email programs offer a “read-receipt” function, which acts as a sort of electronic version of certified mail, allowing the recipient the option to notify the sender that an email was received.

The committee concluded that because this function provides only a confirmation of receipt rather than information concerning the subsequent handling of an email, it does not appear to raise the client protection concerns.

The committed held that if a lawyer wishes to use tracking software in email correspondence with another lawyer, the sending lawyer must receive prior, informed consent. Any email seeking such consent must itself:

• be free of tracking software;
• contain no other substantive content; and
• give the recipient a clear, explicit, and non-technical plain-language explanation of the features of the particular software that the sending lawyer proposes to use.

The receiving lawyer should also obtain the informed consent of any affected client before agreeing to accept email that may contain “tracking” software.

Frighteningly, as reported by the Illinois State Bar committee, no generally available or consistently reliable devices or software programs capable of detecting or blocking email “tracking” software appear to be readily available in the marketplace.

The full scope of these opinions and the actual impact on professional liability for lawyers and other professionals also is largely unknown.

For example, Illinois is among the majority of states that has imposed an affirmative duty on lawyers to “ . . . keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” See, Comment [8] to Illinois Rule 1.1, as amended effective January 1, 2016.

A related provision, Paragraph (e) of Illinois Rule 1.6, adopted effective January 1, 2016, provides: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” This simple requirement creates a potential minefield of professional liability.

It remains unknown what burden these rules place on an lawyer or law firm to employ defensive software to protect its email correspondence from unscrupulous attorneys that would use email “tracking” software despite the fact it is violation of their professional rules of conduct. Currently, a lawyer must act,

“ . . . competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (e) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).”

Illinois Rule 1.6, Comment [18]. In fairness, the committee concluded that to require the receiving lawyer to first discover and then defeat every undisclosed use of “tracking” software would be “unfair, unworkable, and unreasonable.”

The committee further opined “it would be neither appropriate nor reasonable to charge all lawyers with an understanding of the latest version of tracking software that might be chosen, and then employed without notice, at the option of opposing counsel.”

That reasoning will likely not survive for long, however. Attorneys already are obligated to understand the use of things like metadata and “other ubiquitous aspects of common information technology” that only a few years was beyond the comprehension of the vast majority of lawyers. Now, e-discovery and use of metadata is commonplace.

In Texas, the state bar has ruled in Opinion 665 that “the Texas Disciplinary Rules do not prohibit a lawyer from searching for, extracting, or using metadata and do not require a lawyer to notify any person concerning metadata obtained from a document received,” including when the metadata was inadvertently included in the document by opposing counsel.

The question remains then, what steps should the reasonable attorney take to prevent an unscrupulous, opposing attorney from secretly obtain confidential information and analytics that can be obtain using “spymail” or other email “tracking” software and then used against the client?

For example, one easily can envision that a future state bar grievance committee could conclude it is a violation of an attorney’s ethical duties to protect client confidences when the attorney forwarded to his client an opposing counsel’s email and attachment embedded with tracking software rather than take the additional, simple, straight-forward step to download the attachment, scan it, and then send the “bug-free” scanned version to the client.

Such additional steps may seem ridiculously archaic, cumbersome, and time-consuming in our click-and-forward age of email, but when has that ever stopped a state bar grievance committee from sanctioning honest, hardworking attorneys?

The developing law to prohibit the use of “tracking” applications for emails also appears at first blush to run contrary to the trend in many states to permit attorneys to surreptitiously record telephone calls and advise their clients to do the same to gain any available advantage.

In Formal Opinion 01-422 (June 24, 2001), the American Bar Association reversed a prior long-standing position, holding that recording a telephone conversation without the knowledge of the other party to the conversation does not necessarily violate the ABA Model Rules.

The ABA opinion made clear, however, that a lawyer could not record telephone conversations in violation of state law that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded.

While Illinois remains among those states that prohibits attorneys from secretly recording a private telephone conversation without the consent of all parties to the conversation unless certain specific exceptions apply, that did not seem to be critical to the state bar committee’s prohibition on the use of “tracking” software; although, it did reinforce that to do so likely was “dishonest” and “deceit.”

Technology seems to be overtaking the practice of law in every aspect. Many older lawyers readily admit that they are feeling overwhelmed in the attempt to keep pace.

It is only a matter of time before this kind of email “tracking” software is readily available and likely built into off-the-shelf email programs. In their own best interest, internal best-practices, policies, and procedures to strengthen their reasonable attorney defense should be implemented by every lawyer and law firm before a crisis arises.

To subscribe to the Professional Liability Update, click HERE, provide your contact information, and receive notice of our updates. 

Timothy B. Soefje is the Managing Member and head of the professional liability section at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at tsoefje@realclearcounsel.com.

The best way to avoid problems arising on any construction project is to maintain open lines of communications.

Too many costly claims and lawsuits against design professionals begin as nothing more than a simple miscommunication among the owner, contractor, subcontractor, and design professional.

The key to all communication is to be pro-active. Recognizing that an issue or miscommunication has popped up is the most important first step.

Maintaining open dialogue with your clients will keep costs lower and improve overall business relationships. Many times, simply keeping open lines of communication can prevent a problem on the job site from developing into a claim or potential lawsuit.

Weigh the value of involving experienced professional liability attorney early. Involving an experienced counsel early could protect your communications with the owner, contractor, or subcontractor as “settlement negotiations,” and possibly prevent discussions from being used against you in any subsequent lawsuit.

Involving inexperienced counsel early, however, could have the unintended consequence of elevating the situation before it can get resolved by the parties. Not all lawsuits can be avoided, but working together with experienced professional liability counsel, and possibly the insurance carrier, is often risk management best practice.

If you choose to communicate without an attorney, speak in one voice. Designate a single person to respond on behalf of the company.

Once a serious issue arises, activate the company’s “Litigation Response Team” immediately. If the company doesn’t have a Litigation Response Team, you should work with the company internal risk manager and attorney to develop one, and make sure every key leader understands their role at each stage of the process.

For example, while “Requests for Information” are a normal part of the construction process, be wary. Some contractors generate RFIs to lay a foundation for future claims for delays or extras.

The design professional should always respond promptly to a request for information even if the request is unrelated to the design professional’s responsibilities. Always, communicate in writing and copy all necessary parties, including the owner.

Be prepared to discuss the problem honestly and professionally. Be prepared to compromise even if you technically may not be at fault. The design professional, however, should avoid giving an opinion or advice about how to resolve the problem that is outside his scope of work to avoid creating future liability.

The design professional should weigh the costs of early repairs against the risk of future claim for damages, litigation costs, attorney fees, and loss of a future business relationship.  Sometimes, being willing to give an inch will stop an owner from going the extra mile of filing a lawsuit out of anger.

Be careful about making voluntary payments, however, because it could prevent you from recovering those payments from the truly liable party later.

The design professional also should always check with his insurance agent and broker to determine if voluntary remediation is covered under the policy because every insurance policy is unique.

The design professional should remember that while their professional liability insurance carrier generally will be understanding about protecting long-term, valuable relationships with important clients, a professional liability insurance policy is only meant to cover errors in design.

Never assume a voluntary payment will be covered without first consulting with an insurance professional and experienced legal counsel, who also can advise the design professional on when it should put the insurance carrier on notice to preserve the design professional’s rights under the insurance policy.

When an allegation arises, find out the source of the complaint as quickly as possible. Determine who the “decision maker” is and open a direct line of dialogue as quickly as possible. Get out in front of the problem early with the ultimate decision maker.

Consider taking advantage of “Pre-Claims Assistance” potentially offered as part of a professional liability insurance policy.

The best professional liability insurance policies often provide pre-claims assistance, including hiring an experienced professional liability attorney to help the design professional evaluate the risk faced, develop an effective strategy to minimize exposure to damages, and hopefully, avoid a lawsuit entirely.

Every design professional should fully understand their professional liability insurance policy before a lawsuit or claim is filed. Every Litigation Response Team should have one person designated to fully understand the terms of any insurance policy that may be available.

Contrary to what many design professionals sometimes believe, their professional liability insurance policy may provide such pre-claims assistance at no cost to the insured even if the company may eventually owe a large deductible if a lawsuit is filed.

When a claim is asserted, it’s not uncommon for design professional firms to think they are saving money by hiring their regular company attorney to “settle” a claim outside the insurance policy, or worse, doing it themselves.

However, some professional liability insurance policies may offer incentives to the insured, such as reducing the insured’s out-of-pocket deductible by as much as half, if the claim is resolved by formal mediation with the involvement of the insurance carrier.

Why would the insurance carrier do that?

The reason is simple: insurance carriers want their design professional insureds to take advantage of the insurance carrier’s experienced claims people – and experienced professional liability attorneys – rather than try to “do it themselves.”

In the long run, the insurance carrier knows it reduces the risk of future claims and saves the insured and insurance carrier money.

The design professional should create a “Claim File” at the first sign of a potential claim. Pull together all relevant communications with all other parties involved, including the contract, specifications, change orders and critical documents.

Every design professional should implement an effective internal email retention policy and be certain to enforce it throughout the company.

Maintaining a thorough, consistent system of documentation can prove invaluable when a claim does arise.

Before communicating about a problem, get your facts right the first time. Don’t assume anything. Send the message early to the other side, your attorney, and insurance carrier that you:

(1)  have identified the problem;

(2)  understand the cause;

(3)  have developed a solution if appropriate and within the scope of the contract; and

(4)  are prepared to defend your position that you are not to blame should a claim or lawsuit arise.

Be flexible. Respond to combative emails quickly. Respond in writing. Do not ignore accusations, but always stay professional.

Take the high road whenever possible, especially during the “Pre-Claim” phase. Remember the adage about an ounce of honey.

Never forget that everything you do, say, and write may eventually be used against you. Working together with an experienced professional liability attorney can often help avoid cringe-worthy emails from eventually being read out loud to a jury.

Every design professional wants to get paid. At the first sign of problems such as the project may be over-budget or underfunded, communicate with the owner to discuss payment as set forth in the contract.

While putting everything in writing is sound advice, nothing will replace face-to-face communications.

Don’t shy away from setting up a meeting to sit down with the appropriate people to confront the issue. If you do have a meeting, send a follow up letter, summarizing the agreements you believe were reached and the plan of action agreed on by the parties.

If the contractor or owner refuses to meet with you in person, that may be a good sign that a claim or lawsuit is on the horizon, and you can start preparing further.

Whatever you do, don’t overreact. Be professional, and keep the lines of communication open as long as possible or until your attorney advises you to stop.

To subscribe to the Professional Liability Update, click HERE, provide your contact information, and receive notice of our updates. 

Timothy B. Soefje is the Managing Member and head of the professional liability section at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at tsoefje@realclearcounsel.com.

 

When tort reform swept the country more than a decade ago, many states imposed numerous pre-suit requirements to weed out meritless claims against medical and non-medical professionals.

Tort reform, however, hasn’t been at the top of most states’ legislative agenda in years.

Now it appears that some appeals courts may be pushing back against one of medical and non-medical professionals’ key, hard-earned defenses – certificates of merit.

In October 2017, the Oklahoma Supreme Court became the latest to strike down its state’s certificate of merit statute as unconstitutional.  John v. Saint Francis Hospital, Inc., 405 P.3d 681, 687 (Oct. 25, 2017).

The John Court held: “the thrice incarnated affidavit of merit requirement found in Okla. Stat. tit. 12, § 19.1 (Supp. 2013)” “is an impermissible barrier to court access and an unconstitutional special law.”

The John Court held “[t]he courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” Okla. Const. art. 2, § 6. 

Oklahoma’s newest certificate of merit statute was among the broadest in the country. Oklahoma Statute, Title 12, Section 19.1. It required plaintiffs to serve with their petition a certificate of merit to establish a breach of the standard of care by the defendant professional in any civil action for negligence. Id.

Oklahoma’s Supreme Court had struck down an earlier certificate of merit statute limited only to medical malpractice claims. Wall v. Marouk, 302 P.3d 775 (Okla. 2013).

The John Court held: “To be clear: whether in the context of a medical liability, professional liability, or – as in this case – expert liability, court access cannot be conditioned upon a plaintiff’s ability or inability to pay ‘some liability or conditioned coercive collection devices’ . . . Simply stated, section 19.1 is constitutionally infirm.”

As a result, the opinion likely brings sweeping change to the certificate of merit requirements in the state because the Court went out of its way to not limit the holding to the medical malpractice claims raised by the plaintiff.

Oklahoma plaintiffs, therefore, likely are for the foreseeable future no longer required to file certificates of merit as a pre-condition to filing suit in any other negligence claim against architects, engineers, accountants, insurance brokers, real estate agents, and other such professionals.

At least, Washington, Arkansas, and Ohio, however, have joined Oklahoma, concluding that the laws interfere with access to the courts or violate precepts like “separation of powers” or “equal protection.”

In contrast, the majority of courts that have considered the issue have declined to hold that certificates of merit pose a constitutional due process concern. See, Sisario v. Amsterdam Memorial Hospital, 159 A.D.2d 843, 845 (3rd Dep’t 1990).

The Court in Sisario expressly held the New York statute serves the legitimate government purpose of preventing frivolous malpractice suits. Id. at 844.

Some states, however, recently have taken their own steps to curtail such statutes’ scope and effectiveness even if they have not concluded their state’s certificate of merit statute is unconstitutional.

In July 2014, the Texas Supreme Court engaged in legal gymnastics to partially gut the state’s certificate of merit statute as to third-party plaintiffs in construction-related claims. See Tex.Civ.Prac. & Rem.Code § 150.001, et. seq. (engineers, architects, land surveyors, and other design professionals).

The ruling has no impact on medical claims because Texas is among those states that divides its certificate of merit requirements for medical and non-medical professionals. See Tex.Civ.Prac. & Rem.Code § 74.001, et. seq. (medical malpractice).

In Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 571 (Tex. 2014), the Texas Supreme Court read the state’s statute as literal as possible, holding it does not apply to “third-party plaintiffs,” but rather only to “the plaintiff who initiates an action . . .” Id. at 571 [emphasis added].

The statute considered in Jaster requires that a certificate be filed with the original petition.

Filing with an amended petition is insufficient. Sharp Eng’g v. Luis, 321 S.W.3d 748, 751 (Tex. App. – Houston [14th Dist.] 2010).

In Texas, the consequences of outright failing to file a certificate of merit in cases against design professionals can be severe.

Section 150.002(e) grants a trial court broad discretion to dismiss a suit with prejudice if the plaintiff does not serve a certificate of merit contemporaneously with his lawsuit.

The statute provides an exception to the contemporaneous filing requirement only where:

• the limitations period will expire within 10 days of the date of filing of the lawsuit; and
• time constraints prevent preparation of the necessary certificate for filing with the suit.

See, TEX.CIV.PRAC. & REM.CODE § 150.002(c).

As the dissent pointed out in Sharp, Texas’ statute is more of a “trap for the unwary,” than a mechanism to prevent frivolous lawsuits. Sharp, 321 S.W.3d at 754.

As a result, a plaintiff who is either unaware of his duty (which happens all the time) or who is unable to obtain a pres-suit certificate of merit against a design professional (more common) may sue a cooperative contractor.

The plaintiff then simply waits for the contractor to initiate the inevitable third-party action against the design professional.

The design professional is left with a choice: risk the plaintiff will not be able to develop its own certificate of merit after discovery, or settle a possibly meritless claim that it previously would have been able to dismiss immediately.

If an expert’s report (certificate of merit) is developed later in discovery, the plaintiff can then seek to initiate suit against the design professional even if the plaintiff was unaware of its initial statutory obligation to do so.

Even if the contractor never files a third-party petition, the design professional may be forced to incur substantial attorney’s fees to defend the meritless claim at least until the defendant can file a motion for summary judgment, which frequently can take months.

In California, the state legislature fortunately drafted a better statute.

California Code of Civil Procedure Section 411.35 expressly requires that both plaintiffs and cross-complainants provide a certificate of merit when their claims arise out of the negligence of a professional architect, engineer, or land surveyor.

The Texas legislature, however, has shown little interest in correcting the absurd result it created with its poorly worded statute.

No one disputes that in the years since pre-suit certificates of merit statutes were passed, most states have seen a dramatic drop in the number of negligence claims against medical and non-medical professionals.

In Texas, medical malpractice claims that do not involve catastrophic injury or damages have all but disappeared in many venues.

No one also can ignore that many appellate courts have shown little inclination to reign in increasingly emboldened trial judges eager to fulfill their “gate keeper” role.

In recent years, trial judges are commonly finding deficiencies in certificates of merit that only a few years ago would have been deemed adequate at least at the initial stage of litigation.

It’s possible, however, the recent opinions in Oklahoma and Texas should cause those who regularly handle and defend professional liability claims to prepare for the possibility that the pendulum may be swinging back the other way with regard to certificates of merit statutes.

It appears that at least some appellate courts may be willing to re-examine the role pre-suit certificates of merit should play in weeding out claims at the earliest stage of litigation.

To subscribe to the Professional Liability Update, click HERE, provide your contact information, and receive notice of our updates. 

Timothy B. Soefje is the Managing Member and head of the professional liability section at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at tsoefje@realclearcounsel.com.

 

Nicole Ward is an associate with Kennedy Attorney & Counselors At Law. She graduated from the University of Oklahoma College of Law in May 2017.  Her practice focuses on healthcare law, labor and employment law, construction defect litigation, and corporate law. She previously interned in-house for the general counsel at a nationwide building materials supplier and for an Administrative Law Judge at the Equal Employment Opportunity Commission (EEOC). At OU, she was a member of the Order of Solicitors, and won the Best Brief Award at the 29^th Annual Ruby R. Vale Interscholastic Corporate Moot Court Competition. She served as a member of the Organization for the Advancement of Women Lawyers and served as a CASA volunteer.

 

 

Construction contracts are unique in some ways among legal contracts. They anticipate and plan for changes during the project not included in the original contract. In fact, some industry surveys suggest the typical commercial project will involve as many as 50 change orders or more.

All design changes will be governed by the “Changes Clause” in the contract. The “Changes Clause” could be the most important clause in a construction contract because it specifies how the owner can make changes or other alterations the owner deems necessary to complete the work.

The design professional, on the other hand, is obligated by the changes clause to perform changes to the work according to the owner’s instructions, provided the contract provides for the contractor to be compensated.

 

To avoid claims and potential lawsuits, a design professional should pay special attention to the “Changes Clause” in both the design professional’s agreement – and in the prime contract. Before taking on a project, a design professional should clearly understand what is required and how they will be compensated for design changes during the project.

Some design changes may be minor. But too often, design changes lead to costly claims and lawsuits because the design professional relies on an handshake agreement with an owner or contractor regarding the design changes to be made.

Any design professional who fails to obtain a written change order may find it difficult to prove the change was not his fault and even more difficult to get paid.

In my experience, most design changes occur to correct faults in the original contract and several other common factors,  including:

• a poorly defined scope of work;

• compressed project schedules;

• unrealistic cost constraints;

• time and material changes; and

• owner-directed acceleration.

A design change simply is the difference between what is called for in the original contract and what is requested after construction begins. Changes can be requested by an owner, contractor or any third party. Changes may be directed changes or constructive changes. Such changes typically are expected and are accounted for in the contract.

Direct changes usually are easier to identify. These changes usually originate from the owner. They may include changes such as: additions or deletions of work, or a change in materials or scheduling.

Constructive changes are typically caused by the action or inaction of the owner or others involved in the project. They may arise from such things as a failure to disclose conditions on the job site, untimely inspections by government entities, or a failure of a subcontractor to meet a deadline.

Constructive changes frequently give rise to claims because the owner or contractor may be unwilling to acknowledge that a design change is necessary, or the design professional was not at fault for foreseeing and planning in advance for the changed condition.

A “Cardinal Change” arises where the purpose of the original agreement has been frustrated or made impossible by the extent of the requested change. A “Cardinal Change” amounts to the owner breaching the contract, and the design professional would be relieved of performance.

For example, assume the design contract called for the construction of a restaurant with an outdoor playground. Should the owner choose to eliminate the playground, the original purpose of the restaurant would not be violated, and the design change likely would be permissible under the contract. But if the owner sought to elimination of the restaurant entirely, it would violate the purpose of the original contract and constitute a breach of the contract.

Most claims from design changes can be avoided. Never relay on a verbal design change or promise to pay by a contractor or owner. Always document design changes in a written change order. When the need for a constructive change arises during construction, check the contract immediately to determine any deadlines to provide notice to the owner or contractor.

Typically the contractor owes the duty to put the owner on notice, But if in doubt, confirm that the responsible party has provided the owner timely notice. The notice clause prevents a contractor or design professional from prejudicing the owner’s rights to investigate, mitigate, and document the change.

Never rely on the contractor without confirming notice was provided in writing. A design professional who relies only on the contractor, depriving the owner of rights to object to the change, may find it difficult to get paid for any work performed related to the design change. At worse, the design professional may become the subject to an owner’s claim or lawsuit for damages.

Confirm the scope of work anticipated by the design change. Confirm the amount of reimbursement and the terms of payment are clearly spelled out before work on the change begins. When a potential change is identified, create a potential change order file. It is important to correctly classify the nature of the change early in the process.

Review the contract to determine whether the change meets the minimum contract requirements. Be sure to follow the correct procedures to document the change.  Be thorough.

Documentation Is the key to avoiding costly claims and future lawsuits. At the beginning of a project, the project management staff should insure the use of standardized procedures and logs. The project team should maintain a documents log that includes all relevant contracts, specifications, proposed changes, reports, analysis, or other documents..

In addition, create an issues log. At a minimum it should contain the date created, a description of the issue, the party responsible for the issue’s resolution, personnel or work affected by the issue, documents involved, and the date closed.

Implementing best practices to systematically document the need for design changes, confirm authority to proceed, and define the scope of the design change and reimbursement, can avoid future costly claims and potential lawsuits against you.

To subscribe to the Professional Liability Update, click HERE, provide your contact information, and receive notice of our updates. 

Timothy B. Soefje is the Managing Member and head of the professional liability section at the boutique firm of Seltzer │Chadwick │Soefje, PLLC based in Dallas, Texas. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at tsoefje@realclearcounsel.com.