Like many professional codes, the AIA Code of Ethics and Professional Conduct has something to say about conflict of interest. To wit, Rule 3.201: “A Member shall not render professional services if the Member’s professional judgment could be affected by responsibilities to another project or person, or by the Member’s own interests, unless all those who rely on the Member’s judgment consent after full disclosure.”
The commentary to this rule stresses that “those who are entitled to disclosure may include a client, owner, employer, contractor, or others who rely on or are affected by the Member’s professional decisions.”
There it is, in black and white. But as a practical matter for architects, we must ask: Does the Code of Ethics adequately cover the sensitive topic of a conflict of interest?
Architects may find themselves in any number of circumstances where a conflict may present itself. One such instance would be sitting on a planning commission likely to rule on a project for which he or she is being considered. Another would be when two clients who are doing the same type of project (hotels of similar scope, say, on opposite corners of the same intersection) consider engaging the same architect.
In the first case, the conflict is obvious. Even with the very best of intentions, the architect could slip into unintended bias. In the second example, the architect must weigh whether full disclosure to both clients will be adequate, or if is there too much potential for one client to seek a competitive advantage or for the architect to inadvertently favor one client over the other.
Disclosure is required in the Code of Ethics, but disengagement (withdrawing from the project) is the only surefire way to avoid a conflict. Ultimately it is up to the architect to make the decision when an apparent conflict presents itself. And, in the essential step of disclosure, there are likely to be multiple parties that are “affected by the Member’s professional decisions.”
But what do you do if a conflict becomes evident after you’ve begun on a project, something that in legal parlance is termed a “thrust-upon conflict”? Could you have reasonably foreseen the conflict before you undertook the project? And what about an “inherited conflict,” when an architect discovers that a consultant—or an associated architecture firm—brings a potential conflict to an already established relationship? The “thrust-upon conflict” may be an example where an architect might—with proper disclosure and a fair evaluation of the negative consequences of disengaging from a project well underway—maintain an ongoing relationship after the conflict has come to light.
Confusion is also common with respect to the term “appearance of a conflict,” which appears in the Code of Ethics. The best way to determine whether “appearance of a conflict” constitutes a real conflict is to assume that if it appears to any affected party that a conflict exists, the conflict may as well be real. The best time to assess and wrestle with these nuances is at the beginning of the project—before pen and pencil are set to sketchpad or signatures are recorded on an agreement.
The Code of Ethics assumes that AIA members will follow a number of steps with respect to conflicts of interest. Discern—or, identify—the conflict. Disclose the conflict to the parties who might be affected. Disengage if appropriate. Without these steps, there is the risk is that the architect—perhaps overconfident as to his or her own professional integrity—will neglect to identify the conflict, overlook a party to which disclosure should be made, and fail to disengage when appropriate. Even when consent is given after full disclosure, there are situations where disengagement (and declining to “render professional services”) might yet be the wisest option.