[Originally published 1st quarter 2005, in arcCA 05.1, “Good Counsel.”]
Steven and Cathi House are partners in the San Francisco architecture firm, House + House. Their Mediterranean Villages: an Architectural Journey was published in 2004 by The Images Publishing Group Pty Ltd. arcCA spoke with House + House about Ken Natkin, FAIA, Esq., founding partner with Gerald Weisbach, FAIA, Esq., of Natkin & Weisbach, the pioneering architecture law firm. Here are some of their stories:
Soon after we opened our office, we retained Ken Natkin as our attorney. He and his partner at the time, Jerry Weisbach, were architects before they became lawyers, and we appreciated that they had a clear understanding of architectural practice. They were interested in architecture and would display their clients’ work in their office. We appreciated them borrowing a number of our drawings to display for one of their office open houses.
We asked them to review our contracts, advise us on the general conditions and to write the necessary contract amendments for us. At about that time—this was in the mid 1980s—we would meet periodically with a group of other small Bay Area architectural firms to share information on the Article 12 contract amendments. Ken helped us develop a series of twenty or thirty clauses, which addressed the many and varied problems each of us had encountered.
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Ken Natkin helped us on many things, from advice about liability insurance to collection letters. (Frank Lloyd Wright’s letters published in a three-volume set are fascinating—particularly the ones pleading with his clients for payment). Now we call our attorney whenever we see a red flag, not just for our protection, but to learn how to handle the situations ourselves.
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One dramatic example of Ken’s help involved intellectual property. An architect we knew served on a municipal Design Review Board and there was a case in which the Board had turned down an owner three times for the design of his home. The owner asked the Board member what he should do, and was told, “You need a different architect.” Because we had designed some homes in the vicinity, the Board member gave our name to the client, who then hired us. We started over, went through schematic design, and in the middle of design development submitted the new design to the Design Review Board for approval. The design was unanimously approved.
We finished design development and were ready to begin construction documents when the client called and asked us to pause because of a personal problem. He said he would be back in touch when he was able to proceed. About four months later, we got a call from the plan checker at the Building Department who had a couple of questions before issuing the building permit. We were listed as the architects on the Design Review approved plans, which was why he called us, but we had never submitted final plans to the Building Department. We asked for the name of the architect on the construction drawings and called him. He said that the clients had told him that he had our permission to proceed with the project based on our design development drawings. We said absolutely not—and that he should have checked with us first. When we contacted our clients, they were evasive and eventually said they had gone to this other architect because his drafting fee was less than the full-service construction documents phase of our work, and since our design was approved they felt they had the right to proceed with him.
We were disappointed by the deception and called Ken for his advice. He explained our rights and the ethics issues of working from another architect’s design without permission. He prepared a strong letter to the client and architect, copied to the Building Department—violation of copyright, breach of contract, etc.—and demanded that the client return our drawings and model, sign a letter stating that they would not use our design, and pay us the full contract termination fee. It was an effective letter, and within a couple of weeks we had our drawings, model, the letter, and payment. The other architect refused to continue with the project in any capacity, and the client had no choice but to start over with a new architect. To the best of our knowledge, they never built a home on that site.
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Here is an example that shows the value of the relationships that attorneys maintain with insurers. A subcontractor on one of our projects somehow installed the siding upside-down, so that the laps became little water troughs rather than shedding it— hard to believe, but it happened. It was a while—not until the rainy season—before any problems appeared, and by then the owners had moved into the home. When water started pouring through the walls, we realized we had a very serious problem, but it took a waterproofing expert and extensive testing to find out exactly what had happened. Once we identified the problem, the subcontractor and his insurer were unresponsive. Meanwhile, our client had become very ill and was in no condition to deal with the problem. To avoid the owner’s involvement, we directed our insurer to take care of the situation; we didn’t care how, just so the client wasn’t bothered. Ken and Jerry had a good relationship with our insurer, as well as with the insurance broker, who also acted as an advocate. Our insurer paid for the reconstruction then battled with the sub’s insurer for over a year before recovering their costs—but our clients were completely shielded from all of the legal and insurance process. They never knew how bad the situation had been. The important thing was that, through their network of relationships, our attorneys were able to get everyone to do not just the lawful thing, but also the right thing.