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CHAPTER I

THE RELATIONSHIP IN GENERAL

§ 1. Similar to Other Professional Relationships. The relationship existing between the architect and the owner, his client, is, to a marked degree, similar and in many respects substantially identical with the relationship existing between an attorney and his client and a physician and his patient.1 In each case the professional man is in a position of trust and confidence. In each he is the recognized agent of his client. In each he is assumed to possess, by virtue of the very nature of his calling, a special degree of skill and ability therein; and in each, though as to this infinitely more in the case of the attorney or physician than in the case of the architect, he is under certain obligations to the public and to the State.

§ 2. Exceptions to Rule.-Unlike the attorney, the architect, if under examination in court, may not, it seems, successfully plead privilege as to communications between him and his employer 2 nor yet, it has been held, does he render himself liable in damages by making disclosures of his employer's intention to build or the location of the proposed building, provided of course that he

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1 Coombs v. Beede, 89 Me.

2 Wait, Eng. & Arch. Juris.,

187.

772.

has neither agreed to keep silent as to these matters nor been requested by his employer to treat them as confidential. The rule allowing the architect to make disclosures of this character, without the incurring of liability, is not, however, sufficiently well established to be considered a safe one to act upon, entirely aside from the ethical questions involved; and a case which has been cited in support of the rule allowing disclosure by an architect or engineer of the building site selected by the employer does not seem to warrant its citation in this connection, for the reason that the decision is specifically stated to be applicable to situations where no relations of trust or public confidence exist. So far, certainly, as public officers are concerned, such disclosures have not been viewed with favor."

Irrespective of whether his services be gratuitous or not, the rule holds good that the architect must, subject only to the certain possible exceptions, such as the exception relating to privileged communications just noted, and necessarily occasioned by the peculiar attributes and customs of each profession, preserve toward his client in all their dealings, the same general attitude as that which characterizes the relationships of physician and patient, and attorney and client.

8 Havens

v. Donahue, 43 'Pac. Rep. (Cal. Supreme

Court 1896) 962.

4 Green v. Brooks, 81 Cal. 328, 22 Pac. Rep. 849.

"Wait, Eng. & Arch. Juris., p. 772.

• Wills et al. v. Abbey et al., 27 Texas 202; and see Flanikin v. Fokes, 15 Texas 180; DeLeon V. White, 9 Texas 598.

7 People v. Campbell, 82

N. Y. 247.

§3. Absolute Good Faith Required.—It is fundamental that the architect must act for his client in absolute and entire good faith throughout, and in all ways consistently with the trust and confidence which the client has reposed in him.8

With the contractor, the relationship of the architect, as will be seen, is different, but here too he is under the necessity of acting in perfect sincerity and good faith, although under none of those special obligations which flow from his relation to his client and from the direct contract between them. To the public also, as in the proper supervision of the construction of public or office or tenement or apartment buildings to be occupied or used by the public, he is under obligations to use all reasonable care and diligence, although, publicly, his obligations and duties are naturally less than those of a physician on whom the public health may depend or of an attorney, who is an officer of the court before which he practices. The public obligations of the architect are, however, being recognized more generally of late in the United States as is evidenced by decisions recognizing his accountability to third parties, under circumstances which will be noted, and by legislation in various States regulating the requirements for admission of architects to practice and requiring the obtaining of State certificates before practice may be commenced."

8 Lewis v. Slack, 27 Mo. Ap. 119; Badger v. Kerber, 61 Ill. 328; Clark on Architects, p. 94; Wait on Architectural and

Engineering Jurisprudence, p. 446-7.

Cp. Chap. 454, Laws of 1915, New York, amending Chap. 25,

§ 4. Architect to Have No Concealed or Conflicting Interest in Contract.-Inasmuch as the position of the architect is one of trust and confidence, it is clear that he must not, certainly not without the consent of the owner, have the slightest pecuniary interest in the contract or in its performance, other than his interest under his agreement with his employer, or private agreements or understandings of any character whatsoever, relative to the contract or the work in hand, with the contractor or with subcontractors or employees. Such agreements or understandings at once disqualify the architect from acting in that entirely disinterested and single-minded manner, which his position of trust and confidence requires. By entering into any such private agreement or understanding, or by securing any pecuniary interest in the contract other than his interest under his agreement with his employer, the architect exposes himself at once to the danger of dismissal by his client; for it is a well recognized legal principle that an architect who has any pecuniary interest in a contract or its performance other than his interest in the agreed compensation which he is to receive, or, in the absence of express agreement regarding compensation, his interest in such reasonable compensation as he may be entitled to, or an architect who has accepted commissions in connection with the contract from the

New York Laws 1909; N.
J. P. L. 1902, p. 54; vol. I, N.
J. Compiled Stat. pp. 110-113,

California, Stat. 1901, p. 641, and see, Fitzhugh v. Mason, 2 Cal. App. 220, 83 Pac. 282.

contractor, has so acted as to make it impossible for him to continue properly to represent his employer, and that the latter will be justified in terminating the employment forthwith accordingly.1o

Where the superintendent of a building whose duties required that he pass upon accounts for materials furnished, made an agreement with a lumber dealer, by the terms of which the latter was required to pay the superintendent a commission on all sales of lumber made as a result of the exercise of his influence with those by whom he was employed, the court held the agreement to be void as against public policy, and this although it appeared that it was not the duty of the superintendent to pass upon accounts for materials furnished to his employers." The same court in a shortly subsequent decision decided that a writing charging a supervising architect with having given work upon a building, in connection with which he was employed, to certain persons who paid him a commission therefor, was not actionable per se,12 which is to say that it did not in itself charge the architect with any criminal or disgraceful conduct, or hold him up to public contempt, scorn, ridicule, or obloquy, or tend to injure him in his profession. While opinions may, perhaps, properly differ as to whether such a state

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10 Norris v. Day, 10 L. J. N. S., Exch. in Eq., 43; Tahrland v. Rodier, 16 L. C. Rep. 473; Lloyds Law of Building and Buildings, second edition, § 11; American and Eng

lish Encyclopedia of Law, 2d. ed., vol. 2, pp. 815-816.

11 Atlee v. Fink, 75 Mo. 100, 42 Am. Rep. 385.

12 Legg v. Dunleavy, 80 Mo. 558, 50 Am. Rep. 512.

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