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Professional Liability Claims Against Design Professionals
A Certificate of Merit May Be a Prerequisite

Arthur O'Leary, FAIA, MRIAI
 


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What Is a Certificate of Merit? 
In recent years, many states, but not all, have enacted legislation that requires attorneys who file professional negligence actions against architects and engineers to take specified steps to determine, understand, and verify the exact nature of the architect's or engineer's supposedly negligent activities. (See End Note)

Before proceeding with the legal action, the attorney must execute a Certificate of Merit, which is a statement that explains the basis for the belief that the design professional has acted in a negligent fashion. This requires that the attorney confer with third-party licensed professionals who believe that there is a sufficient basis in contract or in law for commencement of the action. The qualified professionals consulted must be from the same discipline as those being sued. The person consulted should not be a party to the litigation. 

In some states, the attorney is required to obtain a Certificate of Merit from a design professional declaring that, based on their review of the allegations, the design professional believes that the charges are justified. 

Keeping Plaintiff Attorneys in the Real World
The purpose of this procedure is to induce attorneys to consult with knowledgeable professionals in the same discipline as those who are being sued as allegedly negligent. It motivates the attorney to become more intimately acquainted with the subject area. It forces attorneys to remain in the world of reality. 

In the process of discussing the relevant issues with one or more licensed professionals, the attorney will undoubtedly be in a better position to accurately evaluate the allegations of the plaintiff or cross complainant. 

Lawyers at times have relied too heavily on their clients for expert advice. Later, during consultation with objective technical experts the attorney sometimes discovers facts that would have counter-indicated the legal action that was taken. 

If the first consultation with an objective professional exposes questionable factors, further consultations would be indicated to provide a proper foundation for the attorney's reasonable judgment.

Contents of the Attorney's Certificate
After the attorney has consulted with the required professionals, the certificate may be drafted. It should state that the attorney has reviewed the facts of the case, has consulted with at least one licensed professional of the proper discipline, and that the attorney has concluded on the basis of such review and consultation that there is reasonable and meritorious cause for the filing of the action. 

Consultant Knowledgeable in Relevant Issues
The licensed professional being consulted should be one who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action. Attorneys regularly involved in construction industry matters will undoubtedly already know many architects, professional engineers, and land surveyors and will be able to discriminate among them as to areas of competence and specialty. 

They will also have previously worked with recognized forensic experts in the various technical disciplines. For those attorneys who are not that conversant with the professionals of the construction industry, the best starting place is the local branch of the professional society or association for that field of practice. Personal references from experienced construction industry lawyers will also be valuable.

Uncooperative Consultants
In the unlikely event that the attorney is unable to find an appropriate consultant, after receiving three refusals to consult from three separate consultants, then the attorney's certificate may reiterate these facts and no further certificate or consultation will normally be required. 

Although the certificate does not have to identify the unwilling consultants, the court may require the attorney to divulge the names, addresses, and telephone numbers of the architects, professional engineers, or land surveyors refusing consultation. 

Presumably, the purpose of this latter requirement is to facilitate verifying the attorney's certificate of non-cooperation lest attorneys seeking the easy road would be tempted to claim non-existent refusals to confer. It certainly would not seem to be for the intent of censuring the reluctant consultants, as there is no legal requirement that any licensed construction industry professional must consult with anyone for this purpose. 

Abuses of the System
An egregious abuse of this section can occur when the plaintiff attorney consults with one or more appropriate licensed professionals and receives no encouragement whatsoever and absolutely no concurrence with the allegations. After this consultant carefully explains that there is no apparent violation of duty or the standard of care or that the plaintiff has seemingly misunderstood the phenomenon or is grasping or overreaching, the attorney in effect would be overruling the consultant when executing the certificate of reasonable and meritorious cause. Later, when the consultant's identity becomes known to the defense lawyers, the questionable certificate will inevitably be discredited.

It is also outrageous behavior for an attorney to name consultants that have not been consulted, either in a certificate of merit or a certificate of refusal. It not only unfairly misrepresents the opinions of the professionals named but when discovered could prove embarrassing to the shortsighted attorney.

Obviously, plaintiff attorneys must protect themselves from the disingenuous or calculating consultant who will try to mislead in the attempt to defend a colleague or the profession in general. The logical solution to this problem is to confer with several consultants so the attorney can better judge the quality and consistency of information being received. If three or more separate competent consultants are in substantial disagreement with the plaintiff's position on the major issues, the attorney should reconsider the merits of the lawsuit. If at this stage it is difficult to locate a competent professional who agrees with the plaintiff's position, it will be equally difficult to find a credible expert witness at the time of trial.

When seeking the opinion of a technical consultant, the attorney should explain the factual situation in its complete realistic context rather than posing isolated possibly flawed hypothetical questions. The consultant's conclusions might be considerably different if the same question is later asked in its proper context. The attorney who is not diligent in this regard could be self-deluding. An attorney's opinion of meritorious cause can have no more validity than the consultant's opinion on which it is founded.

Off-The-Cuff Opinions
The overeager consultant who expresses offhand opinions without a complete knowledge and understanding of all relevant factors might mislead a trusting attorney into an unmeritorious lawsuit. When the consultant later discovers all of the facts and the complete context, after mature reflection will undoubtedly want to recant or alter the original opinion. This effectively strands the attorney who had executed a certificate of merit in reliance on the hastily conceived opinion. 

End Note: This article is based on the particulars in the California law, which is found in the California Code of Civil Procedure, Section 411.35, Subdivisions (a) through (i). The legal provisions in the laws of other states are similar but are not the same. 

   Note to readers: Art O'Leary is seeking topic suggestions for future articles. If you have a topic that you would like to see addressed in a future article, please email art@dcd.com. 
   Please visit DCD.COM for a library of Art's articles.



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