Hello, brudenell-ga !
Thank you for your patience while I compiled an answer for you.
Navigating for the Ethics codes and searching for applicable cases
took quite a long while. After compiling the various definitions of
"Conflict of Interest", I am afraid you are still going to come up
with a standard that is open for interpretation!
Information pertaining to "Conflict of Interest" is contained within
the Code of Ethics or By-laws of the Architectural Associations of
each province or territory, if available. Unfortunately, I cannot
give you any information for Quebec since there is no English
translation and I cannot read French.
While I have spent quite a bit of time looking for particular case
studies involving "Conflict of Interest" with competing clients, I
have found nothing specific to that situation. The few case studies I
have included
touch on the issue, but are not as specific as you might be hoping
for.
The definition of "Conflict of Interest" across Canada varies from
non-existent to vague to somewhat more defined. The UK is also very
vague. The American Institute of Architects offers an attempt at a
workable definition.
Upon reviewing the all the definitions, I think the following are the
most thorough. However, it is obvious that all of them leave a lot of
room for interpretation and architects will need to make a case before
their respective boards if they are ever brought up for discipline.
Alberta - Rule 5 (4)
British Columbia
Nova Scotia
The American Institute of Architects
California C (2)
=======
ALBERTA
=======
From "ARCHITECTS ACT 1980 Code of Ethics". Alberta Regulations 240/81
with amendments in force as of November 28, 1984. Alberta Association
of Architects
http://www.aaa.ab.ca/pages/public/media/code_005.pdf
(If you difficulty with this link, you can access it by going to
http://www.aaa.ab.ca/pages/public/act.htm and clicking the link for
Code of Ethics)
Rule 5: Impartiality and Conflict of Interest
5 (1) An architect should act impartially and not place himself in a
position of a conflict of interest.
(2) If a conflict of interest arises or is likely to arise the
architect should not act or continue to act unless the architect
explicitly explains the conflict and the client, knowing of the
conflict, requests him to continue.
(3) If a conflict of interest arises it should be immediately
disclosed by the architect to his client personally.
******
(4) For the purpose of this Rule a conflict of interest is one which
would be likely to affect adversely the judgment of the architect on
behalf of or his loyalty to a client or prospective client or which
the architect might be prompted to prefer to the interests of a client
or prospective client
******
================
BRITISH COLUMBIA
================
"Code of Ethics and Professional Conduct". Architectural Institute of
British Columbia. Effective December 12, 2002.
http://www.aibc.ca/prof_resources/doc_index/conduct/2003code_ethics.pdf
Section 31.0 CONFLICT OF INTEREST
(a) Except as permitted hereunder and with full disclosure under
Bylaw 32.0, an architect shall avoid actions and situations where the
architect's personal interests conflict or appear to conflict with
professional obligations to the public, the client and to other
architects.
Bylaw 31.1 - An architect shall not accept compensation for services
from more than one party on a project unless the circumstances are
fully disclosed to and agreed to (such disclosure and agreement to be
in writing) by all interested parties.
(a) All parties compensating an architect must so agree prior to the
architect's rendering services to the second and subsequent parties.
Bylaw 31.2 - An architect having a personal association or interest,
which relates to a project, shall fully disclose in writing the nature
of the association or interest to the architect's client or employer.
If the client or employer objects, then the architect will either
terminate such association or interest or offer to give up the
commission or employment.
(a) Personal association includes (but is not limited to) friendship
or family relationship; personal interest includes (but is not limited
to) direct or indirect potential for financial or material gain.
Bylaw 31.3 - Except as permitted under Bylaw 32.7, an architect shall
not solicit or accept compensation or benefit from material or
equipment suppliers in return for specifying or endorsing their
products.
(Read subsections)
Bylaw 31.4 - An Architect acting as the interpreter of construction
contract documents and reviewing construction for conformance with the
contract documents shall render decisions impartially.
(Read subsections)
Bylaw 31.5 - An architect may be a project's owner. An architect may
be a project's contractor, of the architect's own design and/or
construction contract documents. An architect who is a project's owner
or contractor shall fully disclose in writing such status to all of
the project's authorities having jurisdiction and contracting parties;
shall receive their written acknowledgement; and shall provide
professional services as if disinterested.
(Read subsections)
Bylaw 31.6 - An architect who is a juror or advisor for an approved
competition shall not subsequently provide an services to the winner
or, if there is no winner, for an derivative commission.
(Read subsection
==
ARCHITECTS ACT of British Columbia [RSBC 1996] CHAPTER 17
http://www.qp.gov.bc.ca/statreg/stat/A/96017_01.htm
=========
MANITOBA
=========
Manitoba Association of Architects - Code of Ethics
http://www.mbarchitects.org/web/pdfs/MAA-Code-of-Ethics.pdf
The Code of Ethics consists of ONE page and states nothing about
"Conflict of Interest."
The Manitoba Association of Architects - Bylaws - (June 5, 2002)
http://www.mbarchitects.org/web/pdfs/MAA-By-Laws.pdf
Article 15 - Professional Ethics and Conduct - mentions nothing about
"Conflict of Interest"
=============
NEW BRUNSWICK
=============
Architect’s Association of New Brunswick - General Bylaws
http://www.aanb.org/main/English/general_public/pdfs/By-Laws%20-%20English.pdf
Section 14.1 - Conflicts of Interest
14.1.1 A holder of a Certificate of Practice has a conflict of
interest where the holder, or an officer, director, partner or
employee of the holder
(a) has a direct or indirect financial or other interest in any
material, device, invention or services used on a building project
with respect to which the holder provides architectural services
(b) makes use of any service offered by a contractor, subcontractor or
manufacturer or supplier of building materials, appliances or
equipment, that may adversely affect the judgment of the holder as to
any question that arises on a building project with respect to which
the holder provides architectural services
(c) has a direct or indirect financial or other interest, whether
personal or otherwise, in or with a person, firm, partnership or
corporation, that is the owner, contractor, subcontractor,
construction manager, design-builder or project manager of a building
project with respect to which the holder provides architectural
services.
(d) has a direct or indirect financial or other interest in a contract
or transaction, other than the agreement between the architect and the
client, to which the owner, contractor, subcontractor, construction
manager, design builder or project manager is a party on a building
project with respect to which the member or holder provides
architectural services.
(e) has a direct or indirect financial or other interest, whether
personal or otherwise, that may adversely affect the judgment of the
holder as to any question that may arise on a building project with
respect to which the holder provides architectural services
(f) has a direct or indirect financial or other interest, whether
personal or otherwise, in or with any person, firm, partnership or
corporation that submits or has submitted tenders or bids on a
building project with respect to which the holder provides
architectural services.
14.1.2 Subsection 14.1.1(a) does not apply to create a conflict of
interest where the interest is disclosed in the contract documents and
the consent in writing of the client is obtained.
14.1.3 Subsection 14.1.1(c) and (d) do not apply to create a conflict
of interest where the interest is disclosed in the contract documents.
14.1.4 Subsection 14.1.1 does not apply to create a conflict of
interest in the provision of architectural services with respect to a
building project of which the holder is a substantial owner or that is
controlled by the holler where the interest is disclosed in the
contract documents.
======================================
NOVA SCOTIA ASSOCIATION OF ARCHITECTS
=====================================
"NOVA SCOTIA ASSOCIATION OF ARCHITECTS CODE OF ETHICS AND PROFESSIONAL
CONDUCT. (Revised 01/22/98)
http://www.nsaa.ns.ca/DOCUMENTS/CODE.HTM
2.0 CONFLICT OF INTEREST
(a) Except as permitted hereunder and with full disclosure under
Section 5, an architect shall avoid actions and situations where the
architect's personal interests conflict or appear to conflict with
professional obligations to the public, the client and to other
architects.
2.1 An architect shall not accept compensation for services from more
than one party on a project unless the circumstances are fully
disclosed to and agreed to (such disclosure and agreement to be in
writing) by all interested parties.
(a) All parties compensating the architect must so agree prior to the
architect's rendering services to the second and subsequent parties.
This Clause permits multiple loyalties only when all parties agree.
2.2 An architect having a personal association or interest which
relates to a project shall fully disclose in writing the nature of the
association or interest to the architect's client or employer. If the
client or employer objects, then the architect will either terminate
such association or interest or offer to give up the commission or
employment.
(a) Personal association includes (but is not limited to) friendship
or family relationship; personal interest includes (but is not limited
to) direct or indirect potential for financial or material gain.
(b) The architect is required to make disclosure as soon as there is a
personal association or interest, or an awareness of a potential or
perceived conflict of interest, to which a client or employer might
object.
The architect should also make disclosure to sub consultants and other
project-team members.
The architect should also request the architect's staff and sub
consultants to make similar disclosures to the architect.
2.3 Except as permitted under Clause 3.7, an architect shall not
solicit or accept compensation or benefit from material or equipment
suppliers in return for specifying or endorsing their products.
(a) Under this Clause, "endorsing" means "accepting" or "approving"
for use on a project.
(b) Pursuing or receiving a "kickback" is disallowed.
(c) An architect must make recommendations based on independent
professional judgment and uncompromised evaluation.
(d) Neither agreement between the parties nor disclosure (in whole or
part) of the receipt of benefits in exchange for recommending products
will eliminate or waive the architect's conflict of interest under
this Clause.
(Refer to Clause 3.7 for other conditions)
The overtures of suppliers should be evaluated with caution. It is
acceptable to become educated about a product by attending gratuitous
seminars and participating in promotional trips for familiarization.
It is not acceptable to receive inducements (financial or otherwise),
which may be seen as impairments to one's professional judgment.
2.4 An architect acting as the interpreter of construction contract
documents and reviewing construction for conformance with the contract
documents shall render decisions impartially.
(a) Regardless of which party in a project's administrative structure
had engaged and pays the architect, the architect shall interpret
construction contract documents impartially, as if disinterested.
Impartial decisions may reflect adversely on perceptions of the
quality of the design or documents produced by the architect. This
cannot deter impartiality. (The architect should seek advice from
legal counsel or direction from professional liability insurers when
situations arise where impartial decisions may imply, or cause others
to infer, an acknowledgement of responsibility and potential liability
by the architect).
2.5 An architect may be a project's owner. An architect may be a
project's contractor, of the architect's own design and/or
construction contract documents. An architect who is a project's owner
or contractor shall fully disclose in writing such status to all of
the project's authorities having jurisdiction and contracting parties;
shall receive their written acknowledgement; and shall provide
professional services as if disinterested
(a) As a project's owner only, an architect (who is not providing
architectural services on the project) need not make disclosure.
(b) An architect may be a project's contractor only if the project is
also designed by the architect or if the architect also produces the
construction contract documents, and makes disclosure.
(c) An architect's written disclosure shall identify the architect
personally by name as the Owner or Contractor, or both, as the case
may be. Such disclosure is required for any amount of ownership.
The project's authorities having jurisdiction include the officials
known to the architect to be in charge of the various aspects of the
project's review and approval process from the authorizing of rezoning
applications through development permit applications, building permit
applications, etc.
The project's "contracting parties" include those parties known to the
architect to be in contract with the architect, the owner, and
construction contractor (or construction manager or project manager).
Disclosure should be made at the earliest opportunity, and also
recorded in the architect's construction contract documents and
application forms to authorities having jurisdiction.
(d) An architect who is also a project's owner or contractor must
render architectural services as fully and impartially and must be as
disinterested as an architect who is solely serving a third-party
client. Financial interests must not override professional
responsibility and impartiality.
(An architect who is also a project's owner or contractor should seek
direction with respect to availability of professional liability
insurance coverage).
2.6 An architect who is a juror or advisor for an approved competition
shall not subsequently provide any services to the winner or, if there
is not winner, for any derivative commission.
(a) This applies equally to an architect who was, or who had agreed to
serve as, a juror or advisor but was discharged or withdrew.
=======
QUEBEC
=======
If you have the enviable talent of speaking/reading more than one
language, the website
for Ordre des Architectes du Quebec (OAQ) is:
http://www.oaq.com/fr/accueil/index.jsp
=======
ONTARIO
=======
Ontario Architects Act R.S.O. 1990, CHAPTER A.26
http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90a26_e.htm
No mention of "Conflict of Interest". There is also no "Code of
Ethics" for architects.
============
SASKATCHEWAN
============
* Saskatchewan makes no mention of "Conflict of Interest". They do
have Standards of Professional Practice, however.
Bylaw No. 12 - Standards of Professional Practice
http://www.saskarchitects.com/web/bylaws/bylaw-no12.html
12.01
This bylaw represents the principles, attitudes, approaches and
responsibilities to be assumed by a practicing architect.
12.02
The architect shall conduct his relationship with clients,
contractors, suppliers, engineers, consultants and other architects in
an ethical and professional manner.
12.03
The architect shall preserve his integrity in all matters. He shall
explain to the client the exact nature and extent of all services
offered and the proper compensation shall be agreed upon before
undertaking a commission. The architect shall make clear to the client
any conflict of interest that may exist with those of the client.
12.04
The architect shall consider the needs and stipulations of the client,
the effect of the work on the profession and on the public interest.
The architect shall undertake no commission detrimental to these
considerations.
12.05
The business relations outside of an architect's profession shall be
conducted in such manner so as not to weaken or discredit the position
of the architect as a professional advisor.
Bylaw No. 13 - Mandatory Standards of Professional Practice
http://www.saskarchitects.com/web/bylaws/bylaw-no13.html
13.01
An architect shall not enter into any arrangement with or otherwise
assist any person who is not a properly licensed architect, directly
or indirectly, to practice architecture in Saskatchewan; provided
however, that a registered architect may carry on a professional
practice with a member or members of an allied profession or
discipline approved by the council for this purpose where there is no
breach of the Act or of these bylaws. An architect shall only affix
his seal or allow his seal to be affixed to any plans, drawings, or
specifications where such have been prepared by the architect or under
the supervision, direction, responsibility and control of the
architect. Any member of the association or an associated member shall
similarly conduct themselves according to these standards of
professional practice as the same may be applicable to them.
13.02
The architect shall accept compensation for services only from the
client or an employer.
13.03
The architect shall not attempt to supplant another architect once
definite steps have been taken towards that architect's engagement.
13.04
The architect shall not undertake a commission knowing that another
architect has been employed until he has notified that other architect
and has conclusively determined that the original engagement has been
properly terminated.
13.05
The architect shall only use proper methods for soliciting
professional work and shall not adopt any methods which are
inconsistent with the dignity of the profession.
13.06
The architect shall not endorse construction materials, methods,
equipment, fittings or fixtures in any form of advertising.
13.07
The architect shall not use the title "architect" in describing work
done under another architect except with the permission of that other
architect.
13.08
The architect shall at no time act in a manner detrimental to the
interest of the profession.
Complete Association Bylaws may be found at
http://www.saskarchitects.com/web/assoc-bylaws.html
===============
NEWFOUNDLAND
===============
"Code of Professional Conduct." Newfoundland Association of
Architects.
http://www.newfoundlandarchitects.com/ (click on link on left of page)
A.2 Conflict of Interest
(a) An Architect shall not assume or consciously accept or continue in
a position in which their interest is in conflict with their
professional duty.
(b) An Architect shall not have ownership or pecuniary interest in any
building material, device or invention proposed to be used in work for
which he is Architect without informing their Client of that fact
before use.
(c) An Architect may act as professional adviser to a contractor or to
a firm trading in materials connected with the building industry,
provided that he is paid by professional fees and not by commission on
sales or profits, and provided that he does not solicit orders for
such a firm or contractor, and that such firm or contractor does not
solicit work for the Architect.
(d) An Architect shall not permit the insertion of any clause in
tenders, bills of quantities, specification, or other contract
documents which provides for payment to be made to him by the
contractor whatever may be the consideration unless with the full
knowledge and approval of their Client.
(e) An Architect shall not make use of services offered by
manufacturers, contractors, or suppliers of building materials and
equipment, which may be accompanied by an obligation detrimental to
the best interests of their Client.
(f) An Architect shall not, when expressing professional advice, put
their own interest before that of their Client or Employer.
======================
PRINCE EDWARD ISLAND
======================
Architects Act - Prince Edward Island
http://www.gov.pe.ca/law/statutes/pdf/a-18_1.pdf
There is no reference to a "Conflict of Interest" in the act for this
province.
Part III of the Act deals with Discipline and the manner of dealing
with "Complaints" against an architect:
"Complaint means any complaint in writing and signed by the
complainant regarding the conduct, actions, competence, character,
fitness, health or ability of an architect."
Section 21(2) deals with professional misconduct but is extremely
vague and makes no mention of Conflict of Interest.
==================
THE UNITED KINGDOM
==================
"Code of Conduct - Conduct and Competence." Architects Registration
Board.
http://www.arb.org.uk/regulation/code-of-conduct/conduct-and-competence.shtml
* The only mention of "Conflict of Interest" is in Standard 1.2 and it
is not well-defined!
Standard 1
-------------
"Architects should at all times act with integrity and avoid any
action or situations which are inconsistent with their professional
obligations.
1.1 Architects should not make, support or collaborate in any
statement, written or otherwise, which is contrary to their
professional opinion, or which they know to be misleading, or unfair
to others, or otherwise discreditable to the profession.
1.2 Architects should disclose in writing to any prospective client or
employer any financial or personal business interests the existence of
which, if not so declared, would or might be likely to raise a
conflict of interest and doubts about their integrity.
1.3 Architects should, when finding that their personal or
professional interests conflict with those of the client or of other
relevant parties (thereby risking a breach of this Standard), either
withdraw from the situation, or remove the source of conflict or
obtain the agreement of the parties concerned to the continuance of
the engagement.
1.4 Architects should not (in an architectural practice) be a partner,
co-director or take up employment with an unsuitable person. Examples
of unsuitable persons are:
- A person whose name has been removed from the Register of
Architects by virtue of disciplinary measures.
- A person disqualified from membership of a recognized professional
body.
1.5 Whenever an Architect offers, or takes part in offering, a service
which combines consulting services with contracting services, the
Architect should make it clear to all parties in writing that their
services will not incorporate the independent functions of an
Architect.
(See website for remaining Standards)
==============
UNITED STATES
==============
The American Institute of Architects
-------------------------------------
"1997 Code of Ethics and Professional Conduct." American Institute of
Architects.
http://www.aia.org/about/ethics/codeofethics.pdf
E.S.3.2 - Conflict of Interest: Members should avoid conflicts of
interest in their professional practices and fully disclose all
unavoidable conflicts as they arise.
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.
Commentary: This rule is intended to embrace the full range of
situations that may present a Member with a conflict between his
interests or responsibilities and the interest of others. 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. A Member who cannot appropriately communicate
about a conflict directly with an affected person must take steps to
ensure that disclosure is made by other means.
California - An example by individual state
============================================
"Rules of Professional Conduct for Architects." State of California
http://www.cab.ca.gov/rules160.htm
c) Conflict of Interest:
(1) An architect shall not accept compensation for services from
more than one party on a project unless the circumstances are fully
disclosed to and agreed to (such disclosure and agreement to be in
writing) by all such parties
(2) If an architect has any business association or financial
interest which is substantial enough to influence his or her judgment
in connection with the performance of professional services, the
architect shall fully disclose in writing to his or her client(s) or
employer(s) the nature of the business association or financial
interest. If the client(s) or employer(s) object(s) to such
association or financial interest, the architect shall either
terminate such association or interest or offer to give up the project
or employment.
(3) An architect shall not solicit or accept payments, rebates,
refunds, or commissions whether in the form of money or otherwise from
material or equipment suppliers in return for specifying their
products to a client of the architect.
(4) An architect shall not engage in a business or activity outside
his or her capacity as an officer, employee, appointee, or agent of a
governmental agency knowing that the business or activity may later be
subject, directly or indirectly to the control, inspection, review,
audit, or enforcement by the architect.
====================
CONFLICT OF INTEREST
====================
Case Study Example:
"A well respected and successful Architect joined a small Investor
Group involved in a venture to renovate an existing building. This
building was to be converted to retail space on the lower floor. The
upper floor was to be converted to office space and the Architect
along with several of his business partners were to move their offices
to this building. Naturally, the Architect was retained by his
investor group to act as the Architect of record for renovations to
the base building. Leasing efforts were successful and a high profile
anchor tenant was signed to a long term lease with the prime condition
that they take possession of their space no later than November 5.
The tenant chose to hire ABC Interior Design for the design of their
tenant improvements. Accordingly, the Architect advised the tenant
that he would be happy to co-operate with ABC but that his primary
responsibilities were as the developer and base building architect."
"Difficulties arose when the project was slow in starting and the
Tenant became concerned about meeting his deadline. Ultimately, it
became clear that the InvestorGroup was under-funded and having
difficulty in arranging for additional funding. Eventually, the Tenant
occupied his space on December 30 but suffered significant financial
hardship due to the late move. A complaint was lodged against the
Architect by the Tenant claiming lack of integrity and conflict of
interest as per rules 1 and 5 in the AAA Code of Ethics.
"The chairman of the Complaint Review Committee felt that this
complaint warranted a Preliminary Investigation. This investigation
was undertaken and resulted in a recommendation that no further action
be taken on the grounds that the Tenant was not a client of the
Architect and that the Architect had properly defined his roles as
developer and base building architect. The investigation could find no
evidence that the architect acted with a lack of integrity. Without a
contractual agreement between the two parties and with the Architect’s
disclosure of his responsibilities, it was difficult to support the
conflict of interest claim. Any claim for financial losses would best
be dealt with in the Courts. The Tenant was unsatisfied with this
result and has instituted civil action against the Investor Group to
recover losses.
"However, the preliminary investigator in this case very accurately
summed up his biggest concern over that case. "The potential for a
conflict of interest is very real, but the perception of a conflict is
a foregone conclusion- whether such a conflict actually occurs or
not." Once a conflict has been perceived by a member of the public our
profession has already been diminished. Where there is a potential for
conflict of interest, or an architect is engaging in an outside
interest which may jeopardize his ability to uphold the standards of
the profession of architecture, the architect should seriously
consider how to proceed, and is invited to contact the Director of
Practice if further advice is required. Where there is a potential
conflict of interest, the client should be advised, in writing, of the
conflict of interest and the potential ramifications of the conflict,
and the architect should obtain written confirmation from the client
to proceed notwithstanding that a conflict or potential conflict
exists."
(A second case study is also included)
From "Outside Interests and Professional Practice." Practice Bulletin.
Council of The Alberta Association of Architects (February 2001)
http://216.239.57.104/search?q=cache:M244TKN7RnQJ:www.aaa.ab.ca/pages/public/media/pb01_009.pdf+architect+%22conflict+of+interest%22+cases&hl=en&ie=UTF-8
===
An Interesting Dilemma:
"I'm an architect as well as a Web Designer and I often provide both
services to a client, particularly retail clients. I have designed a
couple of physical stores for one particular client in the past year,
and they are now ready to open a full e-commerce site as well.
(Teaching myself PHP/MySql, but that is another subject all together)
Anyway, I was recently contacted by another potential client who sells
the EXACT same line of merchandise. Building their physical store is
no problem, as it is 100 miles away from my existing client, but what
about their web site? Essentially, they will be direct competitors on
the web. My gut tells me I should decline the second web job, as my
loyalty should lie with my existing client. My wallet on the other
hand tells me differently. Any of you ever been in this kind of
situation?"
Read Discussion...
http://www.webmasterworld.com/forum31/1013.htm
==
An interesting Conflict of Interest from Malta (not really in your
jurisdiction :)
"Conflict of interest in Kalkara saga," By Kurt Sansone. Malta Today.
http://www.maltatoday.com.mt/2001/0603/local3.html
"Chameleons, a reptilian species, inhabit the Kalkara valley and are
under threat from planned development in the area. But as everyone is
looking at the debate over the future of Kalkara valley, enter Dr
Edwin Mintoff."
"This architect was employed by the Kalkara Local Council back in 1995
to prepare a report on Kalkara and outline a development strategy."
"He then resurfaced in 1999 as the architect responsible for a private
application by a certain Ms Victoria Tabone, to develop a site in the
Kalkara valley for housing purposes. The site is located in the
current disputed area. The PA notice, 06492/99, for the housing
development is still affixed in the area, waiting for the go-ahead."
**** "This is being considered as a conflict of interest by
environmentalists and people from Kalkara."
======================================
I hope the information I have provided allows you enough information
to decide on your own interpretation of the definition of "Conflict
of Interest". The vagueness of the definitions leaves a great deal of
room for interpretation by individual architects. However, it is
always better to err on the side of caution, rather than leave oneself
open to a potential lawsuit!
Sincerely,
umiat
Google Search Strategy
site:.ca architects conflict of interest
architect "conflict of interest"
site:.ca Alberta Association of Architects Code of Ethics
architect "conflict of interest" cases
+architect AND competing clients
site:.uk Architects "conflict of interest"
American Institute of Architects
(Also searched for Architecture Act for each province) |
Clarification of Answer by
umiat-ga
on
25 Oct 2003 18:20 PDT
Hi, brudenell1
As per your clarification:
I am curious to know if you considered examining case law on point to
see if an architectural firm has ever been sued for "Conflict of
Interest" with regards to propietory client information being
incorporated in a project of another client?
==
I have found several cases pertaining to "conflict of interest"
involving architectural firms, but nothing that mirrors a charge of an
architect using a past or current client's "proprietary" architectural
design. For such a charge to be brought, I imagine the client would
have to "own" the rights to the architectural plans. If an architect
then used those proprietary plans in a design for another client and
the initial client got wind of that fact, there might be a charge
brought under something other than "Conflict of Interest". I am not
sure what the legal basis for that charge would be since I am not a
lawyer! (something akin to "stealing" someone else's design)
Certainly, architects design plans for competing clients with a
degree of regularity. If there are not appropriate clauses placed in a
client's contract pertaining to the client's exclusive rights to a
design idea, it puts a different spin on the potential for a lawsuit.
** While the following articles STILL do not provide the type of
example you hope to find, I found them quite interesting as they focus
on the issue of "who" actually owns the rights to the architectural
plans...the architect or the client?
----
From "Eliminate the gray area in copyright discussions" by Charles J.
Morton Jr. and Vasilios Peros. Baltimore Business Journal
http://baltimore.bizjournals.com/baltimore/stories/2003/10/20/focus4.html
"Who owns the copyrights to the drawings for an office building or a
custom home? The answer can cost a developer or company big money."
"Many individuals and organizations believe that the party that pays
to have drawings created owns the copyrights to those drawings. Unless
stipulated otherwise, the architect or engineer who created the
drawings for the building, in fact, may own the copyrights to the
drawings -- even if they were created for and paid for by someone
else."
"Architects or engineers are hired and paid a fee to develop drawings
for a client. To create these drawings, the engineer or architect
spends a lot of time, effort and uses specialized skills drawn from
years of education and work experience."
"When the architect or engineer completes the project and turns his
creation over to the client, the question becomes whether he has
licensed any copyrights in the drawings to the client. The answer is
maybe."
"Even though copyrights for the drawings have not been specifically
licensed to a client, clients often want to use the drawings after the
architect's engagement has ended. A client may even hire another
architect to modify the drawings, arguing that an implied license has
been granted to use the drawings. Using an architect's drawings on the
basis of an implied license, however, can ultimately cause tremendous
problems for the developer or the company."
"Determining what constitutes an implied license is critical to
resolving these issues. In the case of Nelson-Salabes v. Morningside
Development, for example, the federal appellate court with
jurisdiction over the state of Maryland rejected a claim in which an
architect's client argued that an implied license was granted."
(Read further...
==
From "Copyright Infringement of Design Documents" by J. Kent Holland
Jr. (November 2002)
http://www.irmi.com/expert/articles/holland007.asp
Excerpts:
"Instruments of service produced by the design professional, including
plans, specifications, drawings, opinions, reports, and calculations
have historically been treated as intellectual property belonging to
the design firm that created it. This has been plainly stated in
standard form contracts such as those published by the American
Institute of Architects (AIA), in Document B141, and the Engineers
Joint Contract Documents Committee (EJCDC) in EJCDC Document 1910-1."
...
"If an owner is insistent that it be given ownership rights to the
design documents, and you decide as a matter of business judgment that
you are willing to grant such rights, you should seek to add an
indemnity clause to protect you against claims that might arise out of
the reuse of the documents".
==
"NELSON-SALABES, INC. v. MORNINGSIDE DEVELOPMENT", LLC, 284 F.3d 505
(4th Cir. 2002)
Before MOTZ, KING, and GREGORY, Circuit Judges.
http://www.law.cornell.edu/copyright/cases/284_F3d_505.htm
==
From "Liability Beyond Tort and Contract Copyright and False
Designation", by David H. Levittt. Hinshaw & Culbertson
http://www.hinshawlaw.com/ArticlesPublications/20030417_copyright_false_designations.pdf
ISSUES FACED BY ARCHITECTS IN COPYRIGHT LITIGATION
A. Who owns the copyright?
1. Copyright ownership vests in the author. 17 U.S.C. Sec. 201. That
means that the person who first puts the expression into a fixed
medium owns the copyright.
2. A significant exception is a "work made for hire." One part of the
exception is for employees in the scope of his or her employment. This
applies to architects as it does to anyone else. A second part of the
exception applies to certain specified kinds of works, where there is
a written agreement that the work is a "work made for hire." 17 U.S.C.
Sec. 101. It has been recognized that architectural works do not
qualify as one of the categories under the second part. J.R. Lazaro
Builders, Inc. v. R.E. Riberger Builders, Inc., 883 F.Supp. 336 (S.D.
Ind. 1995).
3. If the claimant is not the owner by virtue of being the author or
employer of the author, the only other ways to have the right to make
a claim are by obtaining an exclusive license or by assignment of
ownership. Such transfers must be in writing, and signed by the owner
of the rights conveyed or the owner's duly authorized agent. 17 U.S.C.
Sec. 101 and 17 U.S.C. Sec. 204.
===
This last article brings me back to my point of whether a lawsuit can
be brought against an architect if the client does not have exclusive
ownership rights to the design built into a contract. While the
article does not focus on architects, specifically, it still makes the
point!
Please read "A LEGAL NIGHTMARE: The Unwritten License: Further
Issues," by IVAN HOFFMAN, B.A., J.D
http://www.ivanhoffman.com/nightmare2.html
=============
I am sorry I cannot find an actual court case for you. Certainly, if
you want to post a separate question asking exclusively for possible
court cases, there might be a researcher with a subscription to an
in-depth legal database who might be able to find a case or two.
Again, I am not sure that an architect could be held liable for using
a design plan in another project unless it was, in effect, "stolen"
from plans that had been granted "ownership rights" to initial client.
I don't know that this extra information sheds any more light on the
subject but I hope it helps a bit!
Sincerely,
umiat
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