Professional Liability Advocate

Design and other professionals often incorporate their practices in an effort to avoid individual liability. They also add well-crafted limitations of liability and indemnification clauses in their form services contracts to avoid responsibility for problems that arise in the execution of the plans. These strategies are especially important for practitioners in jurisdictions where a design professional may be exposed to liability disproportionate to the limited scope of services, such as where codefendants have no insurance coverage or are underinsured. It is also common for plaintiffs to sue the professional individually to attempt to circumvent favorable clauses in the professional corporation’s standard contract for services.

Would an architect by any other name smell as sweet? The answer is no when it comes to authoring an affidavit of merit in New Jersey. A recent case made clear that an affidavit from a professional licensed in a different field cannot support a professional liability claim, even if they have sufficient expertise in a related or overlapping area of expertise germane to the issue presented.

The New Jersey Legislature enacted the Affidavit of Merit Statute in 1995 to quell spurious litigation against licensed professionals. While the statute may have since achieved some of the desired effect, lawyers have been fighting over the statute’s reach and application since its enactment. Though the legislature probably never intended for the statute to become a subject of protracted litigation, there is a tangled nest of appellate opinions interpreting the statute from nearly every angle. That new law continues to be made, despite the language of the statute remaining essentially unchanged, shows that the statute still – almost 20 years later – breeds litigation uncertainty in very practical and impactful ways.

With the continuous shift in the construction industry toward green and sustainable design, becoming green-accredited is a great marketing tool for any business. However, programs such as LEED (Leadership in Energy and Environmental Design) and green design accreditations such as GRP (Green Roof Professionals) are changing the standard of care for design professionals.

I often speak to groups of professionals on how to avoid errors and omissions claims. When I started making such presentations more than 30 years ago, I would hold up a piece of notebook paper and explain that it was a professional’s “best friend” when it comes to avoiding future problems. A memo of a conversation with a client detailing and confirming the services that can (or can’t) be delivered and the realistic outcomes that can (or can’t) result from those services may provide the best defense when a client complains. This is only true to a point. Sometimes, written communications provide a client with ammunition for a claim of negligence.

As part of my blog training, I was asked to review my social media presence in general and in particular my LinkedIn account. My profile, admittedly, had not been reviewed in some time, so I updated my bio and skills section.

This made me think about “puffing,” which I learned about in my Contracts class in law school. For those unfamiliar with the term, it is something we experience daily in sales transactions and advertising. Puffing is the exaggeration of the positives of a service or product or anything else someone is looking to sell. Any advertisement that includes superlatives – such as “greatest,” or “best” – or statements that are clearly not intended as factual representations are not generally actionable if you buy the “product” and find it to be lacking. Consumers dealing with a salesperson should expect some level of “puffing.”