O’Hagan Meyer’s Design Professional Team is pleased to share the latest edition of our newsletter, curated specifically for architects, engineers, and other design professionals. In this issue, we explore two timely and complex legal topics that impact your practice and professional liability:
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Fiduciary Duties for Architects & Engineers: Understand when your role might shift from professional consultant to fiduciary, and how to avoid unintended legal exposure through careful contract drafting and role definition.
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Built to Code, Sued Anyway: Discover why strict code compliance may no longer be enough to shield you from liability—especially in an era of climate change and evolving standards of care.
As always, our goal is to provide practical legal insights to help you manage risk and strengthen your practice. If you have any thoughts or questions, please respond to this newsletter and one of our attorneys will get back to you.
Fiduciary Duties for Architects and Engineers
I. Introduction and The General Rule: Architects and Engineers Are Not Fiduciaries
The role of design professionals, such as architects and engineers, traditionally centers on compliance with a reasonable degree of care, skill and ability comparable to similar professionals in the field.[1] Generally speaking, a fiduciary duty is a duty to act for someone else’s benefit, subordinating one’s personal interests to that of the other person. Courts have long resisted imposing fiduciary duties on these professionals. Instead, the relationship is typically understood as governed by the terms of the agreement. For example, a Minnesota court declined to impose fiduciary liability on an architect who allegedly deviated from the client’s specifications and failed to disclose design decisions.[2] The plaintiff argued that the relationship’s trust based nature gave rise to a fiduciary duty.[3] The court rejected this claim, holding that architects do not owe fiduciary duties by default.[4] Rather, such duties arise only when there is evidence of a special relationship marked by dependency or unequal bargaining power. [5] The court emphasized that expanding liability beyond traditional professional negligence would be improper absent exceptional facts. [6]
However, in select cases, courts have found that architects and engineers can assume an elevated role and transform into fiduciaries, especially when their roles expand beyond mere contractual duties to include functions that implicate loyalty, candor, and trust. [7] The concern is that liability as a fiduciary not constrained by the carefully negotiated written contract exposes the design professional to considerable unappreciated and unmanaged risk, and possibly risk not covered by professional liability insurance.
II. Exceptions to the Rule: When Courts Have Found Fiduciary Duties
Contractual Language. Despite the general reluctance to characterize architects and engineers as fiduciaries, several courts have carved out exceptions in fact-specific contexts. [8] A California trial court found a fiduciary duty where a large architecture firm failed to disclose known design defects in a 27-story curtain wall system.[9] The architect had agreed in the contract to “endeavor to guard the Owner against defects and deficiencies in the work of the Contractor,” language which the court interpreted as elevating the architect’s responsibility beyond ordinary negligence. The firm’s failure to inform the client of defects coupled with contractual language positioning it as a protector of the client’s interest led the court to find that the architect assumed a fiduciary duty.
Assumption of Greater Responsibility. In another California case, an engineering firm was held to fiduciary standards after it advised a city to undertake a costly public works project instead of purchasing power from a third-party utility. The project ultimately failed, and the city claimed it had relied heavily on the engineer’s recommendations and projections. The court agreed, emphasizing that the firm’s role in feasibility analysis, cost forecasting, and risk assessments, as reflected in the contract, went beyond a typical arm’s-length relationship. The court reasoned that these responsibilities created a dependency akin to a fiduciary relationship, particularly given the firm’s influence over the city’s decision making.
Conflict of Interest. The California Court of Appeals found an architect to be a fiduciary when he served as both a construction administrator and project supervisor.[10] The architect had secretly contracted with the general contractor to receive payments directly, then issued payment certificates on behalf of the client despite construction defects.[11] The court emphasized the inherent conflict of interest and held that the architect’s divided loyalties constituted a breach of fiduciary duty, not merely professional negligence.[12]
Together, these decisions reflect the majority rule: architects are not fiduciaries unless they assume a role of special confidence or trust that transcends the usual bounds of a professional engagement. Courts are hesitant to impose fiduciary liability absent contractual language or conduct that clearly supports it.
Practice Pointers
- If you practice in a jurisdiction which has determined that design professionals may owe fiduciary duties to the clients, or if you are unsure, consult an attorney to see how you can draft your agreements or amend your quality control procedures to mitigate your exposure.
- Include language in your contracts disclaiming the existence of a fiduciary relationship. That might not be a perfect cure, but it can’t hurt.
- Be on the lookout for reference in owner drafted contracts for reference to duties loyalty and trust. These are fiduciary in nature
Built to Code, Sued Anyway
For design professionals, a historic guidepost to legal risk management has been compliance with the building codes, international codes, or model codes that govern their designs.[13] But what happens when you’ve followed the code to the letter—and still find yourself facing a lawsuit? Many design professionals are surprised to learn that code compliance, while essential, does not guarantee immunity from liability.
Courts have found that compliance with code is relevant to evaluating the legal professional standard of care in that it creates a baseline of professional conduct.[14] However, courts typically assess other factors, including reasonableness, awareness of danger, causation, expert testimony on professional standards, and any contractual obligations that might impose a higher standard of care than the minimum requirements of the code.
One of the largest of these external influences on standard of care considerations is climate change. Climate change is increasingly making extreme weather events, such as severe heat waves and harsh precipitation, more common and, crucially, more foreseeable. For design professionals, including engineers and architects, this can have significant implications for the standard of care to which they are held.
Significantly, building codes rely heavily on historical weather data to establish minimum design standards that ensure structures can withstand local environmental conditions. This data—collected over decades or even centuries—includes records of wind speeds, snow loads, rainfall, seismic activity, temperature extremes, and flood patterns.[15] However, climate scientists now forecast with high confidence that extreme temperatures and precipitation events will become more frequent, more severe, and more prolonged.[16] This scientific understanding fundamentally shifts the scope of what is considered foreseeable in design. Mere adherence to minimum code compliance or contractual requirements based on past climate data may no longer be sufficient if current projections indicate a greater risk.[17]
For example, in an Arizona case, a civil engineering firm was found negligent for a bridge design that led to flooding to adjacent property because it was foreseeable (despite a contract requirement to design for a 25-year flood event and properly designing for a 25-year flood event) that a 50-year flood or a 100-year flood could occur.[18] Similarly, in an Illinois case, engineers who designed a building to relevant building codes were found negligent because wind loads in excess of the building code were foreseeable.[19]
In another case, the USDOT was sued over a decision to replace an aging swig bridge with a lift bridge as opposed to a more expense but more temperature resilient fixed bridge. The claim was not against the design team, but it is easy to see how a claim might emerge. See Norwalk Harbor Keeper v. U.S. Department of Transportation. Another claim involved a decision not to include air conditioning in a new prison dormitory in Texas. Code did not require air conditioning, but the temperatures inside were significantly above the outside air temperature and dangerous to human health. This claim, too, was brought against the the director Texas Department of Criminal justice, but it not hard to imagine a claim like this against the design team in similar circumstances. See Cole v. Collier
These cases demonstrates that negligence can arise when design professionals fail to incorporate foreseeable climate change impacts – or other foreseeable events – into their plans, signifying a failure to apply their discretion, special skills, and knowledge. Therefore, the question of an architect’s or engineer’s negligence in the preparation of plans is one of fact, and mere code compliance becomes less of a safety net when the foreseeability of climate change or other impacts is clearly established through scientific consensus and real-world occurrences.
Failing to comply with codes carries significant legal risks, potentially leading to a finding of negligence, either as strong evidence or, in many jurisdictions, as negligence per se, depending on the nature of the code and the harm caused. While adhering to building codes is a critical defense against claims of negligence, providing strong evidence of meeting the standard of care, mere compliance may not always be sufficient as professional standards can often exceed minimum code requirements. Therefore, a proactive and thorough approach to understanding and implementing both code provisions and other foreseeable events is essential for mitigating professional liability.
Practice Pointers
Design professionals are not climatologists. The design community has long relied on code requirements for wind, rain, heat, flooding, etc. and applied a safety factor based on judgment. Predicting the future is impossible, and designing resiliency beyond code requirements for anything that might happen is expensive. However, design professionals cannot ignore data showing, for instance, that what used to be a 500 year rainfall event now happens a dozen times a year on average in the location of a particular project. The discerning design team will take care to discuss in detail climate resilient features with the client and document directions. The design team could encourage the client to engage a consultant to perform a resiliency assessment using USGBC’s RELi 2.0 rating system. At a minimum, the design professional should clearly reflect the owner’s resiliency program in the contract documents and include risk mitigation language in the design services agreement.
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[1]The Standard of Care is the Adopted Standard of Performance For Architects and Engineers, Greyling, https://greyling.com/insights/standard-of-care/ (last visited July 24, 2025)
[2] Carlson v. SALA Architects, 732 N.W.2d 324, 326 (Minn. Ct. App. 2007)
[3] Id. at 330
[4] Id.
[5] Id. at 331
[6] Id.
[7] Kent Holland, Design Professional Decreed to be Fiduciary of Project Owner, https://www.constructionrisk.com/2011/07/design-professional-decreed-to-be-fiduciary-of-project-owner/ (last visited July 24, 2025)
[8] Oswald Companies, Why You Need to Avoid Fiduciary Duty, https://www.oswaldcompanies.com/wp-content/uploads/2019/10/AE-Why-you-need-to-avoid-Fiduciary-Duty.pdf (last visited July 24, 2025)
[9] Stuckey Insurance, Why You Need to Avoid Fiduciary Duty, https://stuckeyinsurance.com/why-you-need-to-avoid-fiduciary-duty/ (last visited July 24, 2025)
[10] Palmer v. Brown, 127 Cal. App. 2d 44, 59 (1954)
[11] Id.
[12] Id.
[13] Thompson v. Gordon, 398 Ill. App. 3d 538, 548 (2009);
[14] Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 84 A.D.3d 1524, 1526-27 (App. Div. 2011); Buktaw v. Trader Joe’s Co., 2018 Cal. Super. LEXIS 14146
[15] https://www.fema.gov/emergency-managers/risk-management/building-science/bcat
[16] Conservation Law Found., Inc. v. Exxon Mobil Corp., 3 F.4th 61 (1st Cir. 2021)
[17] Cole v. Collier, No. 4:14-CV-1698, 2017 U.S. Dist. LEXIS 112095 (S.D. Tex. July 19, 2017)
[18] L.H. Bell &Assocs. V. Granger, 543 P.2d 428 (Ariz. 1975)
[19]Laukkanen v. Jewel Tea Co., 222 N.E.2d 584 (Ill. 1966)