Here Comes the Judge—Duties and Responsibilities of Design Professionals When Deciding Disputes

Frequently during the progression of a construction project, the design professional is forced into the role of a judge of project disputes between the owner and contractor. These disputes generally involve substantial claims for extra compensation or extra time and have significant impact on the owner and contractor’s financial position on the project. The architect or engineer will be pressured by the owner, who controls whether the design professional gets paid. The contractor, however, may threaten to pursue legal claims against design professionals if they make the contractor’s job more expensive or fail to give it the appropriate time extension. In many cases, design professionals must admit or deny whether their services were defective in some nature. In addition to these pressures, the design professional is not necessarily trained or comfortable with acting as a judge and interpreting the meaning of contract terms. Generally, when an architect or engineer performs this judicial function, they are immune from any liability for the results of decisions. However, the design professional must make the decision in good faith and with impartiality. In addition, design professionals must only decide those matters that their contract obligates design professionals to decide. This paper will address the nature of the designer’s role as judge and the limits of the designer’s immunity with respect to the designer’s contract obligations and good faith and impartiality requirements.