Credit: Blaise Hayward
Arent Fox attorney Stephen Del Percio, LEED AP, focuses on the emerging legal and regulatory issues associated with sustainable building. “The standard of care for an architect is changing because of LEED,” he notes, adding that some liability questions won’t be answered “until there are claims.”
Explicitly or implicitly, going green is a part of almost every discussion a design professional has these days. And since no good deed goes unpunished, those conversations have opened new avenues of professional liability that require careful consideration. New York–based attorney Stephen Del Percio, who has a civil engineering degree from Columbia University, was one of the first 10 lawyers to become a LEED Accredited Professional. At Arent Fox, part of his construction law practice involves keeping abreast of the myriad new legal implications that green building practices entail.
How could “green” get architects into trouble?
There’s been a blurring of the role of the architect in the “green space” between educator and advocate. The most important thing is education. There are obligations in the 2007 version of the AIA construction agreements for the architect to suggest to the owner various sustainable alternatives, such as materials and systems. It’s imperative to get specific or to delete the clauses.
How specific should you be?
Use language that’s tangible and can be quantified, so there’s no room for debate as to whether the design professional satisfies their obligations: “The architect will evaluate the orientation of the site to recommend possible alternatives to maximize passive solar” versus “will recommend sustainable design alternatives.”
How should architects describe their “green” expertise?
In a survey last summer, only 20 percent of architects considered themselves “very experienced” in green design. Be careful about the representations you make of your level of expertise for green design and sustainable technologies. The standard of care for an architect is changing because of LEED. If an owner holds you to a higher level based on those representations, it can be dangerous from a breach of contract perspective and an insurance coverage perspective.
What about advocating sustainable design?
Do the things you’ve always done. Educate the owner about what LEED is and what green is, generally. Don’t be an advocate, be an educator. Let the client make an informed decision about whether to obtain LEED certification or use a certain HVAC system or whatever.
What about green products?
[Manufacturers] are casting stuff as green or sustainable. Don’t get seduced. Don’t forget that you have a duty to investigate claims of heightened performance.
Should architects be discussing green and sustainable issues with their lawyers and insurance carriers?
Absolutely. Owners want to make sure there’s insurance coverage behind their design professionals. You need to have the conversation with your insurance carrier as to what it will and won’t cover. Insurance covers you up to the prevailing standard of care. If you hold yourself out at a higher standard, you’ve assumed liability the law doesn’t protect.
Most professional liability policies will exclude assumptions beyond the prevailing standard. When the standard of care is shifting and nobody knows precisely where it is, that’s the danger. If somebody hasn’t kept up with the industry and the standard of care has increased, have they been negligent just by participating on a project? We’re not going to know until there are claims.
When might insurance start to cover these issues?
Anecdotally, if you are providing LEED certification services, your liability policy would probably cover a claim that arose out of a breach. The thornier question is if there’s language in your agreement that guarantees a specific result—a level of certification or a level of performance. There is no insurance coverage for breach of a guarantee or warranty.
What’s the future?
There’s been a push from the architectural community towards taking a leadership position with respect to sustainability. That’s great, but it’s naive to suggest that you haven’t created additional risks. As construction lawyers, we look at risk and figure out how to protect our clients or share the risk in a way that’s equitable.