Glad that you and Steve are in agreement with my initial attempt to flag some of the problems for design professionals and attorneys in becoming advocates for the cause. It is important, as you have suggested that the risk management community should be called on to help with meaningful legislation–that is legislation that can actually be implemented and provide a measurable and verifiable benefit to the aggregate good. Unfortunately, my experience has been that there are plenty of attorneys, architects, engineers and even insurance folks who are looking to the green wave as a way to advocate for views consonant with their own persoanl views and/or make a buck. Certainly, all this legislative activity has been backed and abetted by “green” or “sustainability” experts, and often enough the association representatives from the major entities in the construction and real estate process. So although I agree fully that the risk management community is positioned to assist, the question remains, are we getting the right folks from the risk management community to participate.

I look forward to a second wave of participation that is characterized by genuine objective and transparent analysis combined with recommendations that make technical, economic and legal sense rather than make the participants feel warm and fuzzy all over.

If the problem of sustainability is to be taken seriosly it requires more, rather than less, intense and careful examination combined with a healthy skepticism.

I wholeheartedly agree with 100% of your comments. It is obvious (and Stephen mentioned this in the recent ABA article (http://www.abajournal.com/magazine/green_grow_the_lawsuits/) that “no one in this space is trying to cause trouble.” All of the stakeholders in a construction project, including the owner, construction team, occupant(s), the surrounding community members, the environment, future generations and local government entities are motivated to build green because they see it as the right thing to do. Our role as professional counselors and advisers should be to assist them in achieving their collective vision.

Your final comment intrigues me due to the recent work I have been doing related to advocacy. Many local, state, and even federal building practices have incorporated LEED or other “green” incentives and stipulations. However, as you well know, laws are created by the legislative branch and then interpreted by the judicial community. It benefits no one to draft laws or create incentives that are unattainable or usurious in nature.

For example, on Chris Cheatham’s blog (http://www.greenbuildinglawupdate.com/2009/02/articles/codes-and-regulations/how-to-regulate-green-in-virginia/) he comments on how Arlington County, VA has offered a density bonus for projects that want to go green. This is a volunteer program that gives developers the ability to build more if they build to a LEED-Certified or higher level. In order to achieve such incentive, the county requires the owner to post a bond or ILOC to guarantee certification by the USGBC. The surety bond does not exist (similar to the DC Green Building Act) as no surety underwriter will post a bond to guarantee certification by a third party. In addition, no contractor wants to put up their own money via an ILOC in the absence of the bond. So the result is that you are back to square one.

The risk management community (attorneys, risk managers, accountants, etc.) is uniquely positioned to ASSIST in the shaping of legislation that can actually achieve sustainable development in a feasible manner. I will contact you directly to speak more about this.

Thanks!

Keep up the good work.

One of the main issues to consider in dealing with the delivery of services by design professionals, especially architects, invovles their professional duties to their clients. Clients rely on licensed professionals of all types to provide them with advice based on adequate due diligence recognizing full well that the advice so provided will be relied upon by the client in making decisions that will have monetary or legal consequences. In the arena of green design professionals, it is very important to realize that a licensed design professional has a duty to a client to provide him with adequate due diligence, objective and transparent information, and serve the client’s needs not his own (or his professional association’s) advocacy goals.

It is not a part of a design professionals duty to advocate for options without doing serious due diligence. In my experince and practice dealing with green buildngs, I have too often seen design professionals (often LEED APs and/or consultants) lack the training or background to do the kind of research necessary to fulfill due diligence expectations of owners and required by their professional repsonsibility. They often rely on anecdotal information or studies conducted by highly biased or self-serving entities and then pass of this information to the client as though it consituted “best practice” or defintive in the field (Greg Kats surveys are a prime example).

The lack of due diligence (and often this will mean tracking down footnotes or skeptically engaging information sources) leads to a lack of objectivity and/or transparency in the recommendations or advice to the client. The AIA itself helps to foster this confusion of professional responsibility in its current AIA 2007 documents and in its newly promulgated Ethics Codes by placing the design professional in the role of an “advocate” for green design. Professionals are not ordinarily hired to be advocates, but rather for their knowledge and competency in providing reliable advice to the client. An E & O policy does not cover damages resulting from advocacy, only the rendering of professional services either under the contract or more generally to provide non-negligent services.

All clients expect that a professional will reveal any pertinent conflicts of interest or personal views that would have a material impact on the client’s decision-making. That is to say, a professional must provide transparent information to the client rather than use his licensed professional role to advocate for personal agendas or inappropriate personal gain. Advocating strenuously to a client for a green roof while ommitting to mention (or even consider)that the payback will be a 100 years; suggesting that it is common to acheive 30% reductions in energy consumption while remaining silent on the substantial difficulties and vagaries in obtaining such a result; or, as is very common currently, to suggest that LEED certification is a proxy for building performance without discussing the current lack of meaingful data in this regard are all good examples.

If architects want to be advocates for a cause, then they should be explicit about these views with the client. Otherwise the client has every expectation that the recommendations made were the result of non-neglignet professional judgment and to rely on these represetations by the design professional in subsequent decisions. Should the outcomes of this reliance prove detrimental to the client, it would be natural to seek recourse from those that provided the material information/advice.

Architects as licensed professionals have an important role to play in the delivery of green buildngs, but advocacy should be left to the lobbyists .