Practicing law without a license?

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Author Message David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1349 Registered: 03-2002 Posted on Friday, March 07, 2014 - 10:10 am:    When does what we specifiers do cross the line and move into an attorney's territory? When do we stop writing specs and start practicing law without a license? David G. Axt, CCS, CSI, SCIP Specifications Consultant/Web Publisher www.localproductreps.com Lynn Javoroski FCSI CCS LEEDŽ AP SCIP Affiliate Senior Member Username: lynn_javoroski Post Number: 1773 Registered: 07-2002 Posted on Friday, March 07, 2014 - 10:40 am:    I don't know about you, but I start a conversation regarding any legal issue with "I'm not a lawyer and I don't even play one on the radio". Then I'm free to give my opinion, usually based on experience. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 731 Registered: 01-2003 Posted on Friday, March 07, 2014 - 01:26 pm:    If specifications are contract documents, must you be an attorney to create or edit them? Going the other way, if specifiers are comfortable editing specifications (which are contract documents), why do they fear editing supplementary conditions, and some, but not all, other Division 00 documents? Contrary to popular belief, being an attorney does not mean one knows everything about law, just as being an architect or a specifier does not mean one knows everything about construction. I have seen horrendous modifications required by owners' attorneys who apparently have no understanding of construction documents. I also have seen excellent supplementary conditions written by attorneys who do understand construction documents. In my humble opinion, of course. My comments and observations shall not be construed as providing legal advice. Contact a licensed professional attorney to obtain advice with respect to any particular issue or problem. David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1350 Registered: 03-2002 Posted on Friday, March 07, 2014 - 01:40 pm:    I was hired by a subcontractor who is in a dispute with the general contractor over the scope of work. My job is to look over the documents and give my professional opinion as to how I would interpret who is supposed to do what portion of the work. The architect did a very poor job coordinating between the drawings, finish schedule and specifications. It is no wonder why everyone is so confused. So am I overstepping my bounds by getting involved in a dispute between these two parties? David G. Axt, CCS, CSI, SCIP Specifications Consultant/Web Publisher www.localproductreps.com Robin E. Snyder Senior Member Username: robin Post Number: 515 Registered: 08-2004 Posted on Friday, March 07, 2014 - 01:48 pm:    The definitions of "practice of law" varies from state to state http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/model_def_statutes.authcheckdam.pdf Anyone can prepare or edit a contract - you don't need to ba lawyer (or a specifier). I ask you to paint my house for $1000 and you agree and we have a contract. There are portions of the General Conditions that discuss insurance, indemnification, copyright etc that are such that editing these items could be construed as giving legal advice and are generally outside the scope of "industry standard" for specifiers. In my case, i really do need to make it clear that this is not legal advice and is just my opinion!! ken hercenberg Senior Member Username: khercenberg Post Number: 724 Registered: 12-2006 Posted on Friday, March 07, 2014 - 01:50 pm:    Not sure what you can do for them. The A/E doesn't scope the job or determine who does what. The Contractor scopes the work between their subs. It comes down to their Contractor-Subcontractor agreement and what they agreed to do. You might be able to find a few things to help, but I don't think you can provide a professional judgment. Seems like they need an attorney. Of course I'm not an attorney so don't take my word for it. Robin E. Snyder Senior Member Username: robin Post Number: 516 Registered: 08-2004 Posted on Friday, March 07, 2014 - 02:00 pm:    The documents should not define who is responsible for doing the portions of the work, so i agree with Ken that there isn't really a role for you at this point. If you are just reviewing documents and writing a report showing inconsistencies and such, that isn't practicing law. If you write a report and include, "based on this, you should sue sue sue" then that is giving legal advice and would be the unauthorized practice of law. But, based on what you said, it sounds messy. The scope of work between the sub and GC should be defined in the contract between those two parties. Robin E. Snyder Senior Member Username: robin Post Number: 517 Registered: 08-2004 Posted on Friday, March 07, 2014 - 02:02 pm:    David - call me later if you want - 480-776-5885 David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1351 Registered: 03-2002 Posted on Friday, March 07, 2014 - 02:10 pm:    I know specifications do not delineate each trades scope of work, but that seems to be the way contractors divide up the work. I have not seen the contractor/subcontractor agreement but what I have seen the contractor insists the sub must perform all the work of Sections X, Y, and Z. The sub is arguing that the work is not in his sections but instead in Section W. It sure does not help that the architect uses the same abbreviation for different materials (specified in different sections) on the Drawings. David G. Axt, CCS, CSI, SCIP Specifications Consultant/Web Publisher www.localproductreps.com Chris Grimm, CSI, CCS, SCIP, LEED AP BD+C, MAI Senior Member Username: chris_grimm_ccs_scip Post Number: 239 Registered: 02-2014 Posted on Friday, March 07, 2014 - 02:37 pm:    To help this sub, someone would need to study the communications between the GC and the sub, more than the design documents that we on this forum are all used to batting around. That is assuming that the AIA A201 is the general conditions for the project, which explicitly says the GC is responsible for dividing up the Work to subs. If some other general conditions were used, or none, then we have a whole different story perhaps. Somewhere in this you might be able to help as an expert witness. DISCLAIMER: I'm not a lawyer. Void where prohibited. Use at your own risk. Batteries not included. Do not puncture or incinerate. Lynn Javoroski FCSI CCS LEEDŽ AP SCIP Affiliate Senior Member Username: lynn_javoroski Post Number: 1775 Registered: 07-2002 Posted on Friday, March 07, 2014 - 02:48 pm:    And more expensive west of the Rockies. Chris Grimm, CSI, CCS, SCIP, LEED AP BD+C, MAI Senior Member Username: chris_grimm_ccs_scip Post Number: 240 Registered: 02-2014 Posted on Friday, March 07, 2014 - 03:00 pm:    I wonder if this GC is giving new meaning to the cross references between sections from what is intended. In MasterSpec editor notes it tells us these are simply to let the reader know where other requirements are located that they might have expected to see here. I've actually written that into my front end to make the clarification. Some people I've talked with (usually designers starting to review specs for the first time) thought these tell the subcontractor they are also responsible for that other work or coordinating with that other work. I'd say not likely, unless it says in the project's agreement form and general / supplementary conditions, and any agreements between the GC and sub. And that is certainly not how the "related requirements" in the masters are intended to be used, not by a long shot if you read the editors notes. These same people believe that when a spec lists a reference standard in a Part 1 References article it means everything in that standard is required. Very weak, when the standard includes multiple options, and quality assurance, source QC, products, and execution don't say a word about invoking the standard - it is of zero effectiveness, just saying that a standard exists. Point is that people can sometimes believe the words mean something very different from what the words actually say in the overall context. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 647 Registered: 10-2007 Posted on Friday, March 07, 2014 - 03:34 pm:    I contend that there is an overlap between providing professional services and practicing law. The question is the nature of the overlap and how do we operate so as not to cross the line. In the case of a non-licensed individual that overlap is harder to justify. Remember we prepare contract documents. There is often no clear division between what is addressed in the general conditions and in Division 1. There is no problem with providing a professional opinion to the sub-contractor regarding the interpretation and quality of the construction documents. You are helping a client on the technical side and are not practicing law. If the issue is what is the subs scope of work, it may be best to step back not so much because of concerns about practicing law but rather because you may not be able to help much. J. Peter Jordan Senior Member Username: jpjordan Post Number: 700 Registered: 05-2004 Posted on Friday, March 07, 2014 - 05:10 pm:    This is not a discussion that the architect should allow him/herself to be drawn into. It is the Contractor's responsibility to divide the Work; this is "means and methods." The Contractor should deal with the subs on that project and push this responsibility off on the Architect/ Louis Medcalf, FCSI, CCS Senior Member Username: louis_medcalf Post Number: 25 Registered: 11-2010 Posted on Tuesday, March 18, 2014 - 03:38 pm:    To return to the original question, I believe that providing terms and conditions for manufacturer warranties as MasterSpec does in a number of sections constitutes practicing law in a way that specifying requirements for a manufacturer warranty does not. Although MS cautions specifiers to consult the owner's legal counsel, in reality that doesn't happen. Although we can advise owners about supplementary conditions and can be the amanuensis for them, A/Es should not unilaterally make decisions for the owner regarding business relationships and insurance coverage. One of the great mysteries in the art and science of preparing project manualas is why is it so hard to get owner decisions about supplementary conditions, which are the one thing in the project manual owners can understand. Steve Taylor (Unregistered Guest) Unregistered guest Posted on Wednesday, May 14, 2014 - 05:21 pm:    The sub needs a lawyer, and you are qualified to be an expert witness if one is needed. David J. Wyatt, CDT Senior Member Username: david_j_wyatt_cdt Post Number: 78 Registered: 03-2011 Posted on Thursday, May 15, 2014 - 08:28 am:    Regarding expertise, you have to be honest with yourself and your client as to the limits of your knowledge. Even though the people in my firm regard me as an expert on building materials, my expertise is limited to: - knowing who really knows what my project team needs; - asking the right questions; - organizing and formatting information provided by real experts; - coordinating specs with drawings. That's really about it. The architect's seal is my safety net. As lucrative as offers to act as an expert witness can be, I avoid them, because I know a real expert in a field could easily shred my so-called expertise. John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 1573 Registered: 03-2002 Posted on Friday, May 16, 2014 - 02:01 pm:    I don't think it's practicing law. Drawings and specifications are part of a legal construction contract. Lawyers and lay people would not think that creating the drawings is practicing law. It's only because specifications are written that there is an expressed concerns, I think. Really, every sentence and phrase in a specification is subject to court interpretation in a legalistic way, and many have been subject to just such scrutiny. Still doesn't turn it into practicing law. While warranties are covered in the Uniform Commercial Code, other stuff is in there too which could cross paths with a spec. Then there are the issues around patents and infringement. Oh yeah, building codes are part of regulatory law and we must interpret those for clients. I'll stop now. Lynn Javoroski FCSI CCS LEEDŽ AP SCIP Affiliate Senior Member Username: lynn_javoroski Post Number: 1802 Registered: 07-2002 Posted on Friday, May 16, 2014 - 03:15 pm:    Well written, David. My biggest resource is my list of contacts. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 663 Registered: 10-2007 Posted on Friday, May 16, 2014 - 08:32 pm:    Construction documents including drawings and specifications are legal documents. I believe that when the state licenses design professionals and gives them the right to prepare construction documents they effectively give the design professionals a limited license to practice a subset of law. The question then becomes what are the limitations on that limited license to practice law. I believe that the limit has to do with whether we are talking about commercial issues as opposed to the technical provisios