Ethics and Professional Practice PDF

PA R T 1 : T H E P R O F E S S I O N C H A P T E R 1 Ethics and Professional Practice 1.1 The AIA Code of Ethics and Professional Conduct Michael L. Prifti, FAIA Members of the American Institute of Architects lead the way through the highest standards of professionalism, integrity, and compet...

PA R T 1 : T H E P R O F E S S I O N C H A P T E R 1 Ethics and Professional Practice 1.1 The AIA Code of Ethics and Professional Conduct Michael L. Prifti, FAIA Members of the American Institute of Architects lead the way through the highest standards of professionalism, integrity, and competence. The Code of Ethics and Professional Conduct is both guide and measurement of those practices. IN TR OD U C TI O N TO TH E C O D E O F E TH I C S AN D E TH IC A L P R A C TI C E Architecture in built form is exclusively predicated on the universal constant of gravity. This is true regardless of location, weather, material, building or client type, codes and regulations, aesthetic, or other variable. Architecture as a practice is equally based on a moral foundation of professionalism, with responsibilities to the general public, our respective clients, to the profession itself, our colleagues, and to the shared environment Michael L. Prifti is managing principal of BLT Architects, a firm headquartered in Philadelphia, Pennsylvania. Prifti has played an instrumental role in promoting professional practice, serving for two terms on the National Ethics Council and speaking at numerous AIA National Conventions on related topics such as “The Role of Ethics in Sustaining the Profession.” 2 that surrounds all of us. For members of the American Institute of Architects (AIA), the concise language of the Code of Ethics and Professional Conduct is both guide and measuring stick for professional behavior. PA R T 1 : T H E P R O F E S S I O N HI ST ORY OF TH E AIA C ODE O F E TH I C S In 1909, the AIA first adopted a formal set of rules governing the conduct of architects. The rules were published as “A Circular of Advice Relative to Principles of Professional Practice and the Canons of Ethics.” According to the National Council of Architectural Registration Boards (NCARB), only four states (Illinois, New Jersey, California, and Colorado) had by that time adopted laws regulating the practice of architecture. As a result, the AIA’s rules served to set standards for practice in much of the country. The AIA periodically revised its ethical code in mostly limited ways during the ensuing 60 years. Limitations Imposed by Antitrust Law Unlike the NCARB member registration boards, each of which is a part of a state or other government entity, the AIA is a nongovernmental organization. State governments and their agencies enjoy various powers and privileges that do not extend to other types of organizations or to individuals. As a result, both the scope of professional rules adopted by the AIA and the manner of their enforcement by the AIA necessarily differ from what registration boards may do. Antitrust law imposes significant restrictions on what conduct the AIA can mandate or prohibit in a code of ethics for its members. Although antitrust law is complex, its general purpose is to foster economic competition. One way that antitrust law accomplishes this goal is to prevent competitors in a given market from acting together to unreasonably restrain competition. Because the members of the AIA are competitors of each other, AIA activities cannot be carried out with the purpose or effect of reducing competition in ways that courts have found to be unreasonable, that is, without having an offsetting precompetitive effect. In the 1970s, in various legal proceedings, the U.S. Supreme Court and other courts established new understandings of antitrust law as applied to professional membership associations, including their codes of ethics. As a direct result, the AIA’s own code of ethics was repealed in 1980, temporarily replaced by unenforceable “Ethical Principles,” then completely revised and reinstituted as a new enforceable Code of Ethics and Professional Conduct in 1987. The structure and much of the content adopted in 1987 continue to be reflected in the current version of the AIA’s code of ethics. Prior Provisions No Longer in the Code Some subjects were covered in pre-1980 versions of the AIA’s code of ethics but are no longer covered, mostly as a result of restrictions imposed by antitrust law. Prominent in a list of such subjects is any restriction pertaining to fees or compensation for services. In a 1978 appeal by the National Society of Professional Engineers, the U.S. Supreme Court specifically held that a professional association’s ethical code may not prohibit competitive bidding—despite the argument that such a regulation would further public health, welfare, and safety. The absence of ethical provisions regarding fees has a broader effect than just competitive bidding or minimum fee amounts, however. There is no ethical restriction on providing free services whether or not part of marketing; providing services at no charge is, of course, simply charging a fee of zero. Similarly, there are no ethical restrictions specifically pertaining to design competitions, which amount to providing services for no fee or a very small fee. 1.1 The AIA Code of Ethics and Professional Conduct 3 Other subjects no longer prohibited by the AIA code of ethics include: PA R T 1 : T H E P R O F E S S I O N • Supplanting or replacing another architect on a project. Historically, it was considered unprofessional to have any business contact with another architect’s client. The AIA code of ethics does not prohibit such conduct. • Advertising. The AIA’s code does not prohibit advertising of professional services. The code does contain provisions that could be violated in the context of advertising, however, such as making false statements or failing to properly credit other participants in a project. • Contracting to do construction. The 1909 code prohibited engaging in any of the “building trades” or guaranteeing any estimate. These restrictions, which are incompatible with design-build, disappeared by the 1970s. • Determinations of law. Prior versions of the code did not shy away from provisions that required legal analysis. For example, prior to 1997 the code made explicit reference to copyright. Currently, however, in order for any legal or regulatory violation to be taken into account in application of the AIA’s code of ethics, the legal or regulatory determination must have been made by an appropriate authority. TH E S IX C ANONS OF T HE AIA CO D E OF E T H IC S S TR U C TU R E O F TH E C O D E C ANO N I : GE N E R A L OB L I GAT I ON S The code is arranged in three tiers of statements: Canons, Ethical Standards, and Rules of Conduct. Members should maintain and advance their knowledge of the art and science of architecture, respect the body of architectural accomplishment, contribute to its growth, thoughtfully consider the social and environmental impact of their professional activities, and exercise learned and uncompromised professional judgment. C ANO N I I : OB L I GAT I ON S T O T H E PUB LIC Members should embrace the spirit and letter of the law governing their professional affairs and should promote and serve the public interest in their personal and professional activities. C ANO N I I I : OB L I GAT I ON S T O T H E C LIEN T Members should serve their clients competently and in a professional manner, and should exercise unprejudiced and unbiased judgment when performing all professional services. C ANO N I V: OB L I GAT I ON S T O T H E PR OF ES S ION Members should uphold the integrity and dignity of the profession. • Canons are broad principles of conduct. The code of ethics primarily addresses responsibilities that architects and other AIA members have to others. Except for Canon I, General Obligations, the canons reflect the categories of those to whom duties are owed: the public, clients, the architectural and related professions, colleagues (as individuals), and the environment. • Ethical Standards are more specific goals toward which members should aspire in professional performance and behavior. • Rules of Conduct are mandatory. Violation of a Rule of Conduct is grounds for disciplinary action by the Institute. Rules of Conduct, in some instances, implement more than one Canon or Ethical Standard. Commentary is provided for some of the Rules of Conduct. That commentary is meant to clarify or elaborate the intent of the rule. The commentary is not part of the code, however. Enforcement is determined by application of the Rules of Conduct alone. The commentary is intended to assist those who are seeking to conform their conduct to the code as well as those who are charged with its enforcement. C ANO N V: OB L I GAT I ON S T O C OL LEAGUES Members should respect the rights and acknowledge the professional aspirations and contributions of their colleagues. C ANO N V I : OB L I GAT I ON S T O T H E E NVIRONM E N T Members should promote sustainable design and development principles in their professional activities. 4 Ethics and Professional Practice N ATI O N A L E TH I C S C O U N C I L The bylaws of the AIA establish the processes under which the ethical code is adopted, amended, and enforced. The bylaws provide for the establishment of a National Ethics Council, which has the authority to interpret the Code of Ethics. Individual members, officers, directors, employees, and officers and staff of state and local components of the AIA do not have this authority. PA R T 1 : T H E P R O F E S S I O N The National Ethics Council is the body charged by the bylaws to enforce ethical matters in the practice of architecture, in accordance with current, published editions of the Code of Ethics and Rules of Procedure. It does so through the process of complaint and response, measuring ethical behavior as defined by the code. The Council also considers proposed changes to the code for adoption by the Board of Directors or membership of the Institute, and may itself propose revisions. The Council amends its Rules of Procedure when appropriate, with any such changes requiring approval of the Board of Directors. As part of its educational mission, the Council conducts programs at the annual National Convention and at other component events. Occasionally, members of the Council publish articles on ethics. The Council operates with operational support provided by the Institute’s Office of General Counsel. The Council publishes on the Institute’s website all of its publicly available information. This information can also be obtained by contacting the Office of General Counsel. Composition of and Appointments to the Council As established by the AIA’s bylaws, the National Ethics Council consists of up to 12 architect members of the Institute, appointed by the Board of Directors to staggered three-year terms. Typically, the Council operates with seven members, each of whom generally is reappointed to a second three-year term. Individual terms are staggered to enhance institutional memory since Council members are not permitted to serve more than two consecutive three-year terms. Nominations for new appointments to the Council are made by the Institute’s president with the advice of the Council. The Council’s chairperson is also appointed annually by the Board of Directors following recommendation of the Council and nomination by the Institute’s president. Promulgation of the Code of Ethics The National Ethics Council’s page on the AIA website contains the current Code of Ethics, supporting documentation, and all necessary forms. In addition to violation notices published upon the conclusion of a case, decisions of the Council are also published in redacted form, that is, with names, places, and other identifying information removed. Prospective ethical matters may also be addressed through published advisory opinions issued by the Council upon request. Redacted Decisions Decisions of the Council in redacted form are published on the National Ethics Council’s page of the AIA’s website. These decisions are analogous to case law in a legal system and provide examples of how the National Ethics Council has applied various Rules of Conduct in contested cases. It should be noted, however, that prior decisions do not have binding authority on the Council in applying the Code of Ethics in any particular case that comes before it. Summaries of two such decisions are included here. Advisor y Opinions The National Ethics Council offers the opportunity to AIA members to request advisory opinions be issued that apply the Code of Ethics to particular factual situations. Unlike complaints, which the Council always accepts in keeping with its current Rules of Procedure, granting a request for an advisory opinion is at the discretion of the Council. Decisions issued at the conclusion of a contested complaint have the benefit of the fact-gathering hearing process and usually input from both a complainant and a respondent. Advisory opinions, by comparison, ordinarily would be based on the single point of view of the member making the request. 1.1 The AIA Code of Ethics and Professional Conduct 5 Changes in the Code of Ethics and Complaint Process How the Code Itself Is Modified PA R T 1 : T H E P R O F E S S I O N The AIA’s bylaws provide two means for amending the Code of Ethics. The Institute’s Board of Directors is empowered to adopt amendments at any time. In addition, the members as a whole, through a vote of their delegates at an annual meeting, may adopt amendments. Typically, amendments have been made by the Board. How the Rules of Procedure Are Modified The National Ethics Council is given authority by the AIA’s bylaws to adopt the rules under which it operates, subject to specific requirements set by the bylaws themselves. Under the Council’s Rules of Procedure, notice is given to the Board of Directors annually of any amendments adopted by the Council. The rules under which appeals are taken are established by the bylaws and the Board of Directors. C OMP LAIN T P R O C E S S Confidentiality The AIA’s bylaws require that the complaints filed with the National Ethics Council and the complaint processes that follow are maintained in confidence. Limited exceptions to the confidentiality requirement apply, as, for example, when a member is found to have committed a violation and a nonconfidential penalty is imposed. The confidentiality requirement does not prevent the complainant or respondent from contacting persons who already have knowledge of the circumstances described in the complaint and who are therefore potential witnesses. Maintaining confidentiality prevents an ethics complaint from becoming a subject of discussion beyond those who are already involved in the circumstances. In some instances, of course, no violation is ultimately found or only a confidential penalty is imposed for a minor infraction. In those instances, confidentiality ensures that the respondent does not suffer from publicity about the ethics complaint. Filing of Complaints and Circumstances of Dismissal Anyone who is directly aggrieved by the conduct of a member of the Institute may lodge a formal complaint against the member. This must be done in accordance with the Council’s Rules of Procedure. A time limit of one year is imposed for filing a complaint after the alleged violation unless good cause for delay is shown. Complaints are filed with the chairperson of the Council by sending them to the Institute’s Office of General Counsel, which provides staff support for the Council. The format for complaints is established by the Council’s Rules of Procedure, and a form is provided for this purpose. Once staff has determined that a complaint meets the formal requirements of the Rules of Procedure, the complaint will be reviewed by the Council chairperson, who may dismiss or defer the complaint, or determine that the case should proceed. The chairperson is authorized to dismiss a complaint when the matter is trivial, when filing was delayed beyond the one year time limit without good cause, or if the matter would not result in an ethical violation, even if the facts alleged were proven to be true. The latter reason is analogous to the “motion to dismiss” standard in legal proceedings, but the Council does not follow any procedure analogous to “summary judgment.” The chairperson typically will defer a case if the parties are involved in litigation, arbitration, or another dispute resolution process, including a proceeding before a licensing board. In that instance, both parties will be notified of the deferral and a copy of the complaint will be sent to the respondent. Deferral due to another proceeding is not uncommon. About half of the complaints filed with the Council are deferred either upon initial filing or later if another dispute resolution proceeding is initiated. 6 Ethics and Professional Practice PA R T 1 : T H E P R O F E S S I O N In nearly all other instances, however, the Chair will determine that the initially filed complaint should proceed, and the Council forwards it to the respondent for response. As with a complaint, the form for the respondent’s response is established by the Rules of Procedure, and a form is provided for this purpose. In the event that a respondent does not file a response after being notified, the complaint process will nevertheless proceed. Even if a respondent remains uncommunicative while the ethics case is proceeding, the Council sends notices of all opportunities for the parties to participate. The Hearing Officer Unless information received from the respondent would support dismissal or deferral of the ethics case under the same standards that apply to review of the complaint itself, the chairperson assigns the case to one of the other members of the Council who will serve as the hearing officer. This selection is predicated on an absence of previous knowledge of the matter and existence of significant ties to the complainant, the respondent, or any of the likely witnesses. To help meet these standards and to avoid other possible conflicts, the Council member selected to serve as a hearing officer is often located geographically distant from parties to the case. Notice of the hearing officer’s appointment is sent to both the complainant and respondent to allow them to challenge the appointment by reason of alleged bias, prejudice, or conflict of interest. The hearing officer serves in a capacity similar to an arbitrator. One major difference, however, is that a Council member serving as hearing officer is not the decision maker in the case but runs the process during the pre-hearing and hearing phases. The hearing officer’s responsibilities for a case largely end with submission of a report and recommendation as described below. After receiving the case file, the hearing officer will review the complaint, response, and accompanying documentation in order to independently confirm whether the case should proceed based on the same standards under which the complaint was initially reviewed by the chairperson. Dismissal or deferral by the hearing officer is subject to concurrence by the chairperson. The complaint process does not provide for counterclaims, even in circumstances when the complainant is a member of the AIA. Upon occasion, a respondent has filed a separate complaint against an original complainant while the original complaint is pending. Although the Council formally treats the two cases separately, in the past the same Council member has been appointed to serve as hearing officer in both cases in the interest of efficiency. Before the Hearing The AIA’s ethics complaint process is streamlined and does not include features of more formalized dispute resolution methods. Discovery of the opposing party’s information through depositions and document production, which are common to litigation and arbitration, is not a part of the Council’s procedures. As a nongovernmental organization, the AIA does not have governmental powers and has little means, if any, by which to enforce directives to complainants, respondents, or third parties to produce information that may be relevant to a case. With limited exceptions, a complainant and a respondent both come to a hearing primarily with the information they have in their own possession. One essential step in preparing for an ethics hearing is for the hearing officer to conduct a pre-hearing conference, which is akin to a pretrial conference conducted by a judge in a court case. The conference, which is typically by telephone, ordinarily includes introductions, brief statements by the parties regarding their views of the case, and reference to the possibility of settlement between the parties. The parties are permitted to have their counsel or their designated non-attorney advisers participate in this call. The 1.1 The AIA Code of Ethics and Professional Conduct 7 PA R T 1 : T H E P R O F E S S I O N conference call is neither transcribed nor recorded, and nothing said during the call becomes part of the case record. The hearing officer may ask questions of the parties in order to better understand the framework of the dispute. A date for the hearing is set, along with a location, in the event that the complainant and respondent are not in the same area. Also established during the pre-hearing conference call is a deadline for the parties to submit and exchange various information in advance of the hearing, notably including their expected witnesses and any additional documents (not submitted with the complaint or response) that will be used as evidence at the hearing. This pre-hearing exchange largely constitutes the extent of “discovery” in the AIA’s ethics complaint process. Hearing The hearing is conducted as an in-person meeting among the hearing officer (assisted by staff counsel), the complainant, the respondent, and their respective counsel or other designated advisers. Witnesses are ordinarily allowed to be present in the room only during the time that they are giving their testimony. The hearing is also attended by a court reporter, retained by the AIA, who makes a transcript of the proceedings for the case record. Most commonly, a hearing lasts the better part of a day, but occasionally the amount of information to be presented may require more than one day. As with the pre-hearing conference call, the hearing officer presides. No evidence is typically permitted beyond what was indicated by the parties in their pre-hearing exchange of information. The hearing typically follows the following agenda: brief opening statements by both parties, presentation of the complainant’s evidence, presentation of the respondent’s evidence, and, finally, brief closing statements by both parties. After each witness (usually including the complainant and respondent) provides testimony, an opportunity is provided to the opposing party to ask questions of the witness. The hearing officer (and staff counsel) also frequently have questions to ask a witness to complete the record. During the hearing, the complaint, the response, and the supporting documentary evidence submitted by each party are marked as exhibits for inclusion in the case record. Repor t and Recommendation Following the hearing, the hearing officer prepares a Report and Recommendation. This written document describes the circumstances of the case, cites the Rule(s) of Conduct from the Code of Ethics that were alleged to be violated, presents pertinent facts, states the hearing officer’s conclusions regarding violations, and, if a violation is found, recommends a penalty. This Report and Recommendation is distributed to the parties, who are given the opportunity to submit written comments. Deliberation and Decision by the Council The entire case record is submitted to the members of the Council for their review. The case record includes the Report and Recommendation, the reporter’s transcript of the hearing, the hearing exhibits, and the written comments, if any, submitted by the parties. At a subsequent meeting of the Council, the hearing officer makes introductory remarks and responds to questions that the other Council members may have, after which the hearing officer withdraws and is not present for any case deliberations. If either of the parties has requested to appear before the Council, they also may make short statements and respond to questions the Council members may have. The Council conducts a vigorous review and deliberation of the transcript, other evidentiary materials, and the hearing officer’s Report and Recommendation. The Council makes its determinations by majority vote and authors the written decision, which is subsequently issued to the parties. In the event no ethical violation is found, the 8 Ethics and Professional Practice case is closed and confidentiality continues to protect the innocent respondent. Should the Council find one or more violation has occurred, a penalty will be determined. Penalties PA R T 1 : T H E P R O F E S S I O N Penalties that may be imposed for ethical violations are set by the AIA’s bylaws. The National Ethics Council does not have the authority to require a respondent to pay money. The Council also does not have the authority to require a respondent to take any action or to refrain from any conduct. Penalties are imposed in keeping with the severity of the violation by the respondent in the eyes of the Council. Unintended or relatively minor matters may result in a nonpublic admonishment. More significant violations are made public and are of increasing severity. First is a censure of the respondent, which includes publication of a notice describing the violation in an Institute periodical. Next, membership in the Institute may be suspended for a period of time, usually one to three years. In more egregious matters, membership is terminated. In all instances of violation, the respondent’s AIA membership record will reflect the penalty, although the AIA will maintain confidentiality in the matter except for the published notice of violation. Appeals Members found in violation of the Code of Ethics may choose to appeal the decision of the Council to the AIA’s Executive Committee. In an appeal, both parties are given an opportunity to submit statements to the Executive Committee. The Executive Committee is provided the entire case record for consideration. Except in cases where the penalty is termination, the decision of the Executive Committee is final, and no further appeal is offered. Upon appeal, the Executive Committee may approve the Council’s decision and penalty, approve the decision but reduce the penalty, dismiss the complaint, or return the matter to the Council for further proceedings. Matters resulting in termination are automatically considered as an appeal. In such cases, the Council’s decision is first considered by the Executive Committee. In the event that the Executive Committee approves the decision and the penalty of termination, the case is further considered as an appeal by the full AIA Board of Directors. The Board is provided the Council’s decision, the parties’ statements to the Executive Committee, and the Executive Committee’s decision. The Board may concur in the Executive Committee’s decision or return the matter for reconsideration. P RA CT I C AL C ON SIDERATION S Although the number of cases pending before the National Ethics Council varies, usually between 20 and 30 complaints are filed each year. Because of the requirement of confidentiality, most of these will never be made known to the public in any fashion. Only in cases where violations are found, accompanied by penalties of censure, suspension, or termination, are the names of the respondents disclosed. Guidelines for Complaint and Response Complaints Regardless of category, the formal complaints will cite one or more Rules of Conduct and briefly describe the circumstances of alleged violation. It is essential that complainants thoroughly and accurately understand the rules chosen for citation and that the argument be clearly stated. Responses A member’s response to a complaint falls into a few broad categories, regardless of the particulars of the matter. Best are the thoughtful, well-documented responses filed in 1.1 The AIA Code of Ethics and Professional Conduct 9 PA R T 1 : T H E P R O F E S S I O N a timely way. Unfortunately, some responses are not timely or thorough. Worse are cases where a response is not provided, which can result in a finding of violation. Regardless, the formal response should address each of the Rules of Conduct cited in the complaint and briefly refute the alleged violation. It is equally essential that respondents thoroughly and accurately understand the Rules of Conduct allegedly violated and that their rebuttal argument be clearly stated. Effective Communications and Proof The hearing officer’s role is to facilitate fact-finding and submission of information by the parties, not as an investigator or judge. The burden of proof of a violation rests exclusively with the complainant. Inappropriate citation of Rules of Conduct, lack of supporting evidence, large amounts of irrelevant information, and presenting selfserving witnesses are unlikely to be persuasive. The same cautions hold true for the respondents, who are well advised to take care to address each of the allegations comprehensively and in correct sequence. C OMMON C O MP LA I N TS Attribution of Credit Because architecture firms market their services based on their portfolios of completed work, it is no surprise that some of the most frequent complaints are filed by architects against other architects over project credit provided or taken. These circumstances may arise out of the dissolution of a firm or the departure of a principal from a firm. Other credit disputes may be prompted by the departure of project staff members from a firm or between firms formerly in joint venture or other collaboration on project work. ATTR IB U T ION: CASE 2004–1 0 Case 2004–10 involved a complaint by an architect member against two other architect members regarding project credit, citing Rules 4.201, 5.201, and 5.202. The Complainant founded an architecture firm 30 years ago and was chairman of that firm. Respondent A was a former employee of the Complainant of 10 years’ duration, departing to become vice president and managing principal of a regional office of the Respondents’ architecture firm. Respondent B was a senior vice president of the Respondents’ firm. A hearing was held with the Complainant and both Respondents present and participating. Testimony at the hearing established that, at the time of the move, Respondents’ firm hired a marketing consultant to publicize Respondent A’s new presence as manager of one of the firm’s regional offices. A folded announcement brochure prepared by the marketing consultant was reviewed by both Respondents and subsequently mailed to prospective clients of the Respondents’ firm, including some clients of the Complainant’s fi rm. The announcement described Respondent A as “one of this region’s leaders in architectural design and project management with over $200 million in projects and 10 years of award-winning 10 Ethics and Professional Practice design and project management experience.” The announcement also stated: “Her portfolio includes the acclaimed Office Building, Sports Facility, and College Facility, as well as other award-winning facilities like the Stadium, the University Facility, and the University Hospital.” The Complainant learned of the announcement from clients who were confused by the fact that the Complainant firm’s projects were being attributed to the Respondents’ firm without mention of Complainant’s firm. Initially, the Complainant sought the publication of specific corrections to the announcement by the Respondents’ firm but without success. The Complainant then filed a complaint with the National Ethics Council, alleging an absence of credit and improper use of photographs that had been commissioned by the Complainant’s firm. At the hearing, the parties offered testimony regarding permission for Respondent A to use materials from her former firm, which had no published policy regarding the use of photographs or other project materials by former employees. It was established that another principal of the Complainant’s firm, Respondent A, and the former counsel to the Complainant’s firm had met as friends for lunch a few months after Respondent A’s of a firm may be held accountable under the Code of Ethics for their fi rm’s marketing materials regardless of whether they are directly involved in preparation of the materials. (See Decision 92-07; Decision 94-07.) In this case, the testimony reflected Respondent B’s awareness of the content, review, and approval of the announcement prior to publication. Hence, Respondent B also violated Rule 4.201 by making misleading and deceptive statements. Regarding Rule 5.201 (“Members shall recognize and respect the professional contributions of their employees, employers, professional colleagues, and business associates”), the Council concluded that Respondent A had both overstated her project influence on certain projects and understated the contributions of the Complainant’s firm, creating an impression that the projects were projects of the Respondents’ firm. The Council concluded that both Respondent A and Respondent B violated Rule 5.201 by failing to provide appropriate credit to the Complainant’s firm for its professional contributions. Applying Rule 5.202 (“Members leaving a firm shall not, without the permission of their employer or partner, take designs, drawings, data, reports, notes, or other materials relating to the firm’s work, whether or not performed by the Member”), the Council determined that testimony did not support Respondent A’s claim that she had tacit approval to take and use the Complainant’s firm’s photographs of that firm’s projects and concluded that Respondent A had violated Rule 5.202. Having found a violation by Respondent A of three cited rules, and by Respondent B of two cited rules, these ethical lapses warranted a penalty of censure on both of the members. PA R T 1 : T H E P R O F E S S I O N departure. During that conversation, Respondent A’s experience at the Complainant’s firm was discussed and use of the Complainant’s firm’s projects by the Respondent’s firm as examples of Respondent A’s experience was deemed acceptable as long as the Complainant’s firm was given credit. The discussion did not include permission to use Complainant’s project photographs given to Respondent A, and the type of materials her new firm might want to use was unspecified. Other evidence submitted at the hearing included promotional materials of the Respondents’ firm that incorporated photographs of Complainant’s firm projects, including nine of the Complainant’s firm projects as examples. While several dozen photographs were used, all of which were commissioned by Complainant’s firm, identification of the Complainant’s firm was by text under only one photograph of each example. The type font was smaller than that used in the body of the text describing the project and was the sole attribution. Applying Rule 4.201 (“Members shall not make misleading, deceptive, or false statements or claims about their professional qualifications, experience, or performance, and shall accurately state the scope and nature of their responsibilities in connection with work for which they are claiming credit”) and the accompanying commentary (“This rule is meant to prevent Members from claiming or implying credit for work which they did not do, misleading others, and denying other participants in a project their proper share of credit”), the Council concluded that Respondent A violated the rule by making such misleading and deceptive statements in the initial announcement. Regarding Respondent B, prior decisions of the National Ethics Council have explained that the principals Homeowner Complaints Nowhere is the relationship between architect and client closer than in bespoke residential commissions. Another common type of complaint is filed by homeowner clients, who believe that services provided were in some way inadequate: the scope of the project was unknowingly altered; the overall schedule was hindered; and the project budget was ignored. Often, homeowners are first-time clients, without a depth of knowledge necessary for a good client-professional relationship. H OM EOWN ER COM PL AINTS: CA S E 2 0 0 5 – 1 5 Case 2005–15 involved a homeowner who filed a complaint against an architect, citing Rules 2.104 and 3.102. The Complainant, along with his wife, had retained the Respondent architect to design and prepare construction documents for an addition to their 100-year-old house, which was located in a historic district. An agreement for architectural services was prepared and signed, and the Respondent provided architectural services as a sole proprietor. (continued) 1.1 The AIA Code of Ethics and Professional Conduct 11 PA R T 1 : T H E P R O F E S S I O N Testimony during the hearing established that the Respondent had encouraged the Complainant to act as his own general contractor, so as to save construction expense. While preparation of signed and sealed drawings for the building permit took five months, the Respondent also suggested the existing kitchen be demolished at the midpoint of this period, resulting in the loss of kitchen use for two years. The Respondent signed and sealed drawings for the project on two separate dates, although he did not have a valid architectural license for more than six months during the project because of a failure to renew the license. The Respondent proposed that he provide plumbing construction services for the project through a separate construction business that he owned, although he was not a licensed plumber. Finally, the Respondent used the Complainant’s personal credit card, with permission, to purchase roofing materials for the project but charged $1,500 for materials used on another project. Evidence in the case included a copy of a consent order with the state architectural licensing board wherein the Respondent had previously agreed to accept a reprimand, complete the NCARB Continuing Education Monograph on “Professional Conduct,” and pay a $250 civil penalty. The Respondent had also signed a consent agreement with the state board of plumbing contractors, agreeing not to provide such services without a license. The essential facts in this case were not in dispute. The Respondent performed various architectural services for the project while he did not have a valid architectural license, including signing and sealing drawings for the project. The Complainant had a right to expect that the architect he retained was licensed and would maintain a current license throughout the duration of the project. The lapse in the Respondent’s architectural license created a high degree of risk that the Complainant would be adversely affected. For example, approval of submittals to a building department that required an architect’s seal might be denied or substantially delayed. Therefore the Council concluded that the Respondent’s failure to renew his license was in wanton disregard of the Complainant’s rights and that the Respondent violated Rule 2.104 (“Members should uphold the law in the conduct of their professional activities”). The Respondent’s execution of a consent order with the state architectural licensing board was an admission of fault to that state’s relevant governing body and sufficient proof of an ethical violation. The Council next considered Rule 3.102 (“Members shall undertake to perform professional services only when they, together with those whom they may engage as consultants, are qualified by education, training, or experience in the specific technical areas involved”) and its commentary (“This rule is meant to ensure that Members not undertake projects that are beyond their professional capacity. Members venturing into areas that require expertise they do not possess may obtain that expertise by additional education, training, or through the retention of consultants with the necessary expertise”). The Respondent’s plumbing construction was also carried out without the required state license. His execution of a consent agreement with the state board of plumbing contractors is admission of fault with that body. The Complainant alleged that the Respondent violated Rule 3.102 due to his lack of valid licenses, as Members must be “qualified by education, training, or experience” to perform the services they provide. The evidence, however, did not prove that the Respondent lacked either education, training, or experience as an architect or plumber. What the Respondent lacked was a valid plumbing license, which was not covered under Rule 3.102. Hence, the Council concluded that the Complainant had not established a violation of this particular rule. Having found a violation, albeit of Rule 2.104 only, the Council determined that this particular ethical lapse was sufficiently serious to warrant a penalty of a three-year suspension of membership. C ON C LU S I O N Architects strive to provide exemplary service, while adding beauty and functionality to the built environment. Within and without, each commission brings untold decisions predicated on ethical practice, balancing the competing interests of clients, the public at large, our profession and colleagues, and of the earth itself. The AIA’s Code of Ethics and Professional Conduct is that essential document by which all such decisions are benchmarked. Fo r M or e In for m a t i on AIA Code of Ethics and Bylaws website: http://www.aia.org/about/ethicsandbylaws/ index.htm. 12 Ethics and Professional Practice