Clients are referring architects to the ARB for misconduct to avoid paying up
Legalese: The ARB is unlikely to welcome being used by clients as a means of avoiding indebtedness, writes Mark Klimt
Architects have in recent years grown all too accustomed to clients raising any number of different objections to meeting their fee obligations. Common areas of dispute include services not being provided in a timely manner; services being separately charged for which should have been included within the agreed basic fee; the need for further services arising out of the architect’s default (for example, failing to produce an original design within the client’s advised budget); and failing to keep the client advised of additional services and fees as required under the appointment.
Too often, particularly in domestic projects where profit margins are small and costs are in any case particularly sensitive, both sides will forget the vexed question of costs initially, while battling to realise the project. In its anxiety to have the building ‘just so’, a client will not recall how many times it has changed its mind and obliged you to vary your design - often at inopportune times. You, meanwhile, will not always refer back to the relevant clause in your appointment document, obliging you to obtain advance written confirmation that you may perform additional services.
It can on occasion be a genuine misunderstanding, and one usually capable of resolution with reasonable goodwill on both sides. However on many other occasions, a client who had been very hands-on when giving precise instructions about what it wants will then represent itself as an innocent abroad, who had no idea of fee implications, when presented with an invoice. Many of those clients have discovered a new weapon to avoid making payment, namely a referral to the Architects Registration Board.
The Architects’ Code of Conduct includes requirements to be honest and act with integrity, promote services honestly and responsibly, carry out the work faithfully and conscientiously, maintain the reputation of architects and deal with disputes or complaints ‘appropriately’. There is an obligation to keep clients properly informed of fees that are being incurred on the client’s behalf. If you, in your enthusiasm to realise the project or in your demonstration of loyalty to the client, have not taken the precaution of recording your advice updating the client, you could find yourself on the receiving end of an (often cynical) referral to the ARB and on to a professional conduct hearing, with sanctions ranging from a reprimand through to disqualification and the attendant publicity.
There are a few key rules that you should observe. Firstly, you should be familiar with particular contract provisions, including payment terms and your own obligations in that regard. The project director must communicate to the rest of the practice team the need to adhere to those conditions and to keep the client demonstrably informed. The traditional difficulty in obtaining written confirmation from clients can be turned to your advantage with a communication along the lines of, ‘unless I hear from you to the contrary…’ You must also ensure that your communications regarding fees and any concessions relating to those fees are clearly worded, so that your client knows the limits of any discounts proffered.
With the obligation to deal with disputes responsibly firmly in mind, when trouble is brewing you should assume that you will have to defend your communications before the ARB and its professional conduct committee, and craft those communications in a restrained and professional manner, regardless of provocation. Although an allegation of professional misconduct could hardly be more personal, you must remember that, where the referral is simply an attempt to avoid paying debts, it really is not a personal attack.
Professional standards introduced to protect clients are now being used by clients to attack their professional advisors. It will not be possible to legislate against opportunist tactics of this nature. However, if you have forearmed yourself and, as a result, steered a true path, you will have given yourself the best chance of demonstrating to the ARB the true nature of what has gone on. In those circumstances, the ARB is unlikely to welcome being used by clients as a means of avoiding indebtedness.
Mark Klimt is a partner at law firm DWF Fishburns