Why Architects Should Avoid Offering Free Advice

Dr. William Hogan-O'Neill - Author, Chartered Architect, and Coach

Architect Knowhow, July 07, 2022

It is a real pleasure to see new graduates completing their final exams recently and soaking up all of the excitement of what that means for your future careers in practicing architecture. I know I felt a great sense of achievement, and indeed relief too, when I completed my Part 2. Whilst I knew I had yet to complete my Part 3 Professional Practice Exam I was nonetheless over the line, and on my way. 

I recall that day I had my RIBA project review and waiting around afterwards with my fellow students for the final result was an extremely anxious time. 

However, to be informed a few hours later that I had passed my final project submission and successfully completed my Part 2 was indeed an ecstatic moment. Then suddenly, out of the blue and from where, I don’t know - a massive thought came into my head - when I suddenly realised, I did not know enough to be let loose as an architect, and in many ways I was correct. Sometime later I completed my Part 3 Professional Practice Exam and felt the same level of elation, only this time, they were providing me with a licence to practice for real, and that can be scary

Having been in practice for nearly forty years I have become less intimidated perhaps by the responsibilities of being an Architect. One’s confidence and skills in providing professional advice, making decisions, managing the project design and construction processes together with dealing with various situations, accumulate over time.

Offering free advice can create a duty of care if you are known to possess the ‘special skill’ of a professional in construction. 

As you gain more experience in professional practice you too will become ever mindful of obstacles, barriers, and challenges in advance of them happening. You will become more alert in anticipating potential eventualities and outcomes and what they could mean before they occur. As a practising architect, you will develop a sharper focus for managing these situations as you become exposed to them. You will become more alert to the potential pitfalls and trip-ups that await architects and professional consultants in practice and especially young architects about to start their careers in what is a very exciting and rewarding profession.

In this article, I want to highlight one specific aspect of architectural practice which can land an unsuspecting, well-meaning well-intentioned architect or any design professional in potentially hot water. It revolves around giving advice and how professional advice should be given with extreme caution – to everybody! 

Formalise All Business with Your Client

I often have people approach me - sometimes during and sometimes outside of business hours - asking for information or what my thinking might be in relation to a particular parcel of land, a building, or a development opportunity which has come to the market. You know what I mean – some quick advice is what’s expected. Or you might have an acquaintance, friend or relative that asks you for a bit of professional help with their new extension or roof conversion. 

In some cases, these off-the-cuff enquirers are well-intentioned requests from clients I may have collaborated with on projects in the past, and, as they know the ropes and the roles and responsibilities of architects in practice, they will know what to expect. A conversation with an existing client at a social event at this level, therefore, would be purely conversational only and depending on the depth of that conversation, I would seek to further it with the client on a more formal basis outside of that social event if I deemed it to be warranted. 

That is, I would follow up and make an appointment to examine the nature and extent of the project in question - I would keep it business with the client. There is no knowing if a project will materialise, but some initial investigations are usually required to establish if there is potential. This is RIBA Work Plan Stages 0 and 1. The scope of this initial work involved should be covered in a simple exchange of letters with your professional fee or time charges clearly set out. I would also inform the client at this initial stage that, as the project progresses further through the RIBA Plan of Work Stages a more formal Architects Appointment should then be put in place with your client. I usually begin this Architect Appointment process at Stage 2. For which I have a standard form of contract, so everybody is clear in what to expect.

Offering free advice can create a duty of care if you are known to possess the ‘special skill’ of a professional in construction. 

A Cautionary Tale

Offering free advice and undertaking professional activities which are not clearly set down between you, the architect, and your client can land a qualified professional in legal hot water. Having to defend yourself against a claim made by a disgruntled acquaintance or so-called friends’ or neighbours is something you need to be alert to for the rest of your professional career.

In 2018 the Technology and Construction Court heard a case where an architect provided advice and assistance for works carried out by a contractor without any contractual arrangement between the architect and the neighbour. Claims were made against the architect by the neighbour both in contract and in tort (tort being where civil law is employed to redress some kind of ‘wrong’). The essence of the neighbour’s claim against the architect revolved around the contractor’s defective work. 

The court heard there was no actual contract between the two parties, and neither was there any payment made or received. The architect was merely providing advice to a neighbour. However, the judge found the architect did in fact owe a duty of care in tort, in providing that advice, because there is an obligation to exercise reasonable skill and care in the provision of professional services. The fact that a contract or any payment was not involved was deemed to be irrelevant in this case

At the Appeal, however, there was some measure of consolation for the architect in that the original claims of ‘negligence’ against the architect were dismissed and the architect was found not to have been in the wrong. However, the duty of care decision remains. The judge described this case as ‘a cautionary tale’.

The thrust of the dispute arose because of advice and work the architect provided to a neighbour and friend (at that time at least) in relation to a project. That is, the architect agreed to assist the then neighbour/friend on a no-fee basis and had organised the contractor to undertake the work. The arrangement was at the time, for the architect to undertake some other additional design work later for which fee would become due. However, that stage was never arrived at due to a falling out between the architect and the so call friend/ neighbour.

What is particularly noteworthy here is that the judge found there to be no distinction between providing advice and the provision of professional services which indeed this architect did in actual fact provide. The judge highlighted that the services in question were that of a professional where a ‘special skill’ is being exercised, such as a special skill that professional consultants are expected to have.

Early Career Ambition

In my early career as an architect, I too, was very enthusiastic, just like most young architects today. I was keen to assist people with whatever opportunities might exist for a new build project, conversion or extending a property. My focus was on doing the job but with less emphasis on formalising the arrangement between myself and the potential client. As a little time went on though, I came to realise that a project without a formal arrangement is not really a project, and neither does a client exist either but technically, I was exposed.

Fortunately, because I worked as a qualified technician for about five years prior to joining my architect’s degree course I was alert to some of the minefields young practitioners can be exposed to and covered myself in letter writing as it was then. This stood out to me for the whole of my professional career. I was fortunate also to have a very wise, well-seasoned mentor who tutored me on how to query every situation so as to minimise professional risk. 

As a young practitioner, you might find yourself at an event and you are introduced to somebody by somebody else, first by your name of course, and then they blurt it out that you are an architect. Naturally, you can feel self-satisfied and rightly so – I know I did when I qualified, given all the hard work and commitment that I put into my years of study. This is where you can easily place yourself in a potentially vulnerable situation as a professional in practice, and one which could challenge your career as a Registered Architect.

You might find yourself being presented with questions about his/her potential property acquisition knowing in the back of your mind that questions of this nature are somewhat unreal if not unreasonable

Your enthusiasm to help, as indeed most architects always seek to help, can steer you into hot water. Very often they are merely seeking words of comfort, or in some cases, some level of commitment from a qualified professional without having to go through the correct processes. In other cases, it can be more scheming perhaps. By that I mean, they are seeking to extract what you know and maybe for you to give them some advice and guidance as a professional architect without having to pay for that professional advice. Sometimes even, you may be propositioned on a no-win (planning) no-fee basis. That is not a good omen for a potential client relationship as we have seen in the example I cited earlier and how it can end - not great for the architect.

My ‘antenna’ is always up and scanning for situations where my practice would be left exposed for a claim. The lesson I learned from my mentor was this: whatever you do, whatever you write, whatever you say - always consider how a judge would view it. That has stood for me for the whole of my professional career. You should also consider too, how the ARB will view it, as it is they who issue your licence to practice as an architect in the UK and it is they who can take it away. I have quoted the same to my colleagues/team in my practice to the point of boredom I am sure, but it has been my terms of reference for all my time in professional practice.

Planning Permission is Not Guaranteed

I have to mention again briefly the lure of a possible project if you can achieve planning permission. In almost every case, the topic will relate to that planning goal where the objective is to add value for the client - usually monetary value but not always, depending on the project. As we all know there is no project if there is no planning, so avoid suggesting or even alluding to a client that planning comes with your service, because it does not. The most you can offer your client is your ability to make a competent planning submission. Always remind your client the UK planning system is a discretionary system and therefore, it is the local planning authority who will decide whether the building use and your design proposed will be acceptable for planning purposes. Achieving planning permission for your client is the big prize and we naturally assume it will lead to a full project commission, but this too is not always the case where the client decides to 'flip' the project and move on to something else, as they do! 

To Sum Up

Under this particular topic of dealing with advice and working for no fee, there are perhaps three specific items I feel you should take on board immediately.

• The first is to make sure you have your Professional Indemnity (PI) Insurance in place. As a practitioner, this is an ARB requirement when acting for your client.

• Next, and right at the very beginning of any working relationship, never undertake work without having an initial simple exchange of letters in place between you and your client, that is, after your initial consultation with your client.

• Next, the best advice I believe I can give to somebody seeking advice is to tell them to get professional advice. I also mention the fact that they have to pay for professional advice, just like they would a surgeon about to perform their medical surgery or a solicitor who they would commission to complete a legal transaction. The clients you should seek to attract, therefore, are those who accept appointing a professional consultant as normal and will inevitably want to appoint you for your professional expertise - and expect to pay for it. 

Finally, a successful architect will also operate on the basis that keeping him/herself and their client out of court is a triumph and a recipe for a successful career as a practising architect.