Legal Issues for New York Architects; Part 2 of 6 – Complying with New York Rules on Unprofessional Conduct

This is a continuing article series regarding Legal Issues for New York Architects. Originally presented by John Caravella, of the Law Offices of John Caravella, and Kimberly A. Steele of The Steele Law Firm and produced by HalfMoon Education Seminars, this presentation touches on the following topics, Complying with the Rules and Regulations on the Practice of Architecture (Part 1), Complying with New York Rules on Unprofessional Conduct (Part 2), Understanding and Complying with Barrier-Free Requirements (Part 3), Design and Construction Contract Law and Administration (Part 4), Understanding and Complying with the law on Design Professional Service Corporations (Part 5) and Building Code Updates (Part 6). Each series of topics discuss informative summaries of Legal Issues for New York Architects.

Part 29.3 of the New York Board of Regents’ Rules on Unprofessional Conduct governs unprofessional conduct among design professionals including:

  • Architects;
  • Landscape architects;
  • Engineers; and
  • Land surveyors.

SPECIFIC TYPES OF PROHIBITED CONDUCT:

  • Being professionally associated with or failing to report projects or practices that are known to be fraudulent or dishonest
  • Failing to report to an owner or his/her agents “any unauthorized or improperly authorized substantial disregard by any contractor of plans or specifications”
  • Certifying by the use of signature and seal documents for which the professional did not perform or thoroughly review the professional services
  • Failing to maintain a written evaluation of those services

MORE EXAMPLES OF PROHIBITED CONDUCT UNDER PART 29.3

  • Failing to maintain “all preliminary and final plans, documents, computations, records and professional evaluations” which the professional has certified (must be retained for six years)
  • “Having a substantial financial interest, without the knowledge and approval of the client or employer, in any products or in the bids or earnings of any contractor, manufacturer, or supplier on work for which the professional has responsibility”
  • Sharing fees with any person (except a partner, employee, associate in professional firm or corporation, subcontractor, or consultant)
  • Accepting payment from multiple parties for the same project without the disclosure to and consent from the parties.

AVOIDING FRAUD AND DISHONESTY

The New York Rules of Unprofessional Conduct, Part 29.3(a)(1) forbid a design professional from “being associated in a professional capacity with any project or practice known to the licensee to be fraudulent or dishonest in character, or not reporting knowledge of such fraudulence or dishonesty to the Education Department.”

Fraud in the practice of the architectural profession involves the intentional misrepresentation of a material fact related to the practice of architecture.

Some situations that might involve fraud and/or dishonesty:

  • Signing and sealing documents where architectural services were not part of the work
  • Failing to notify the client/owner and/or local authorities of serious code violations
  • Failing to stop or report criminal activities on the part of business partners[1]
  • Misrepresenting experience and qualifications
  • When discussing experience, identify project, scope of involvement, and role (i.e. as employee of another firm)
  • Disclose whether any projects claimed have not yet been constructed
  • All claims should be documented and accurate
  • Signing and sealing evaluations for which the licensee has not performed an inspection[2]

SIGNING AND SEALING DOCUMENTS

The New York State Architecture Practice Guidelines offer instruction regarding the signing and sealing of documents.

The use of the seal is a formal certification that the work represented by a document

  • is accurate
  • complies with relevant codes
  • complies with standard health and safety practices
  • is the responsibility of the party certifying it

Methods of applying the seal may include

  • Rubber stamping the document
  • Using a sheet on which the seal has been printed (usually as part of a title book)
  • Applying a pressure sensitive or adhesive label with the seal printed on it
  • Electronic reproduction of the seal in a computer-generated drawing
  • Seal should always be legible
  • Licensee should personally sign all documents (without obscuring the seal)

Under the New York Rules of Unprofessional Conduct, Part 29.3(a)(3), a design professional must not sign and seal documents “for which the professional services have not been performed by, or thoroughly reviewed by, the licensee; or failing to prepare and retain a written evaluation of the professional services represented by such documents.”

This section does not allow the practice of a design profession by anyone who has not been authorized to do so.

The New York State Architecture Practice Guidelines suggest situations in which a registered architect may appropriately certify the work of others:

  • Documents prepared by a project’s owner for personal use
  • Documents prepared by a professional who has subsequently died or become incapacitated
  • Residential projects of less than 1,500 square feet for which a jurisdiction requires the certification of a licensee
  • Plans obtained through magazines or other sources

This list is not inclusive, and other situations may arise in which an architect may certify others’ work.

REQUIREMENTS OF A WRITTEN EVALUATION

UNDER PART 29.3(a)(3)

  1. Identify the project
  • Name of project
  • Name of owner
  • Identity of person preparing documents
  • Date of evaluation
  • List of documents evaluated, with date of issue
  1. For drawings
  • Applicable building codes/zoning ordinances are satisfied
  • “Good architectural practices has been provided according to applicable standards”
  • Drawings contain or address site plan, foundation/structural plans, floor plans, elevation, wall section and construction details, schematic plumbing and electrical plans, and scheduled and schematic HVAC plans as required
  1. For specifications
  • State and local code requirements are satisfied
  • Good architectural practices and applicable standards have been observed
  • Quality of material and construction must be clearly outlined
  1. Analysis of structural, plumbing, and energy systems

Documents are to be sealed once they meet applicable standards.

AN ARCHITECT’S SIGN AND SEAL

ARE NOT ALWAYS REQUIRED

Exemptions from the sign and seal requirements under New York Education Law Section 7306.5:

  • Farm and agricultural buildings “that are used directly and solely for agricultural purposes”—the Practice Guidelines make it clear that this would not include the farmer’s residence.
  • Residential projects of fewer than 1,500 square feet
  • Alterations
  • Less than $10,000 cost
  • Without changes affecting “structural safety” or “public safety” of the building
  • To farm and agricultural buildings and residential projects that were already exempted
  • Additions to residential buildings where the total square footage, including the addition, will still be less than 1,500 square feet

A local jurisdiction determines whether alterations affect structural safety or public safety and whether signing and sealing may be omitted.

Local requirements that are more restrictive than the state requirements must be met.

PREVENTING CONFLICTS OF INTEREST

Conflicts of interest exist where an architect has a financial interest that is or may be contrary to that of his or her client. The Rules of the Board of Regents mention conflict of interest at Rule 29.23(a)(5):

[Unprofessional conduct shall include] having a substantial financial interest, without the knowledge and approval of the client or employer, in any products or in the bids or earnings of any contractor, manufacturer or supplier on work for which the professional has responsibility[.]

Conflicts of interest may apply not only to clients but to others who rely on the architect’s judgment, including owners, developers, employees, and contractors.

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Some examples of potential conflicts of interest include:

  • Receiving payment from two sources for the same project
  • Having a financial interest such as owning stock in a supplier or making a loan to a contractor
  • Referring or endorsing certain suppliers
  • Being paid for public statements regarding architectural issues (i.e. having a financial interest that may affect
  • Accepting gifts that are intended to influence a professional judgment
  • Any other situation in which the architect’s relationship with a third party may be adverse to the interests of the client

Here are some practices intended to prevent allegations of misconduct based on conflicts of interest:

  • Decline any gifts that are intended to influence your professional judgment
  • Do not provided referrals or endorsements to specific supplies
  • Disclose any payment or other consideration that has been received for public statements regarding architectural issues
  • When one of the above conflicts is discovered, disclose it to all parties who may be affected
  • Disclosure should be made in writing
  • Disclosure should include enough facts to adequately inform the affected party of the type of conflict
  • When in doubt about a conflict of interest, reveal the interest and obtain consent
  • Do not proceed with the work until disclosure of the conflict has been made
  • Get consent in writing

IDENTIFYING PRACTICES THAT ARE NOT UNPROFESSIONAL CONDUCT

According to the New York State Architectural Practice Guidelines:

An architect can offer interior design services or use the title “interior designer” (although an architect must be licensed to use the title “certified interior designer”).

An architect can retain an interior designer as an employee or consultant (although an interior designer or interior design firm cannot in any way provide architectural services, even if a licensed architect is an employee or consultant of the firm).

An architect can be retained or employed by a general contractor as long as the architectural services are performed for the contractor and not specific to a client (i.e. signing and sealing documents for a specific client’s project).

  • The contractor must be the client.

An architect can give a title to an unlicensed employee as long as the title does not in any way imply that any unlicensed person is an architect.

An architect can delegate or accept delegation of specific design work through an intermediate entity, which can be a contractor or subcontractor.

  • Applies to “ancillary building components or systems”
  • With the understanding that services requiring a license will only be provided by licensed individuals
  • With enough information, in writing, for the party to which the work is being delegated to understand “the scope and nature of the delegated work and its connection to the general design”
  • The party to which the work is delegated must sign and certify her/his work
  • The delegating party must review and approve the submission, in writing

[1] An architect was disciplined for failing to notify the authorities that his business partners were bribing legislators (Turley v. Board of Regents of University of New York).

[2] An architect was found to have practiced his profession fraudulently where he represented, by signing and sealing, that he had personally completed inspections when in fact they were completed by an individual who was neither an architect nor an engineer (Howe v. Board of Regents of University of State of New York).

Kimberly A. Steele is the founding member of the Steele Law Firm, P.C., a multi-jurisdictional practice with offices throughout the United States that represents clients in commercial litigation, commercial transactions, construction law and suretyship.  The Steele Law Firm, P.C. was awarded the New York State Certified Woman-Owned Business Enterprise designation in 2010.  The Steele Law Firm, P.C. has extensive dealings in large volume banking and collection matters with attention to commercial foreclosures, loan workouts, UCC Article 9 issues, lender liability, creditors’ rights, judgment enforcement, priority disputes, trust diversion and bankruptcy.  The Steele Law Firm, P.C. also assists clients with collateral accounting, preservation, seizure and liquidation.  In addition, The Steele Law Firm, P.C. represents commercial parties with respect to land development, financing, economic incentive programs, zoning, land use issues, environmental cleanup, minority business status, and multi-party program participation including with the Small Business Administration, Certified Development Companies, and Industrial Development and Community Development Agencies.

Ms. Steele graduated magna cum laude from Elmira College on a full academic scholarship, attended the Université de la Sorbonne in Paris, France also on full academic scholarship, and received her Juris Doctor from Albany Law School of Union University.  Ms. Steele has previously served as corporate counsel and vice president of commercial sales of a Central New York community bank.

In addition to practicing law, Ms Steele is the founding member of H.T. Grace & Associates, LLC, a full service consulting firm that assists small business owners throughout the country.  Ms. Steele is also the owner of Turnaround Credit Repair, providing consumers with credit repair services and business owners with risk rating repair services for purposes of risk management, insurance and bonding.  Currently, Ms. Steele is partnering with a newly-formed venture that procures bonding and competitive loans for Veteran Business Entrepreneurs, Disabled Veteran Business Entrepreneurs, Minority Business Entrepreneurs and Woman Business Entrepreneurs.

Ms. Steele is originally from Lake George, New York.  Ms. Steele makes her home in Oswego with her two rescued dogs.  Ms. Steele enjoys playing the piano, competitive sailing, cooking and wine collecting.