Some have wondered recently whether the historical doctrine of individual responsible charge is outdated in this electronic age. Is it not time to usher out the restrictive requirements of personal involvement in favor of the flexibility afforded through corporate responsibility? Perhaps there is no legitimate difference between professional liability and financial liability.
Large firms that have one or two licensees sign and seal the firm’s entire work product have already decided, either consciously or unconsciously, that responsible charge must take a back seat to financial responsibility. Such a custom may be encouraged by insurance policy provisions restricting coverage to named insureds, or by a management effort to keep principals as the points of contact for the project.
Responsible charge requires either personal discharge of the duty or direct control and supervision of those who do so. It has never required that the entire body of work be performed by the responsible person, only that key decisions either be made by, or be sanctioned by, them. This is consistent with the historical relationship between surveyors and their helpers. Surveyors have never functioned without assistants (although with emerging technology that may soon become possible).
The Rights of Clients
On the other hand, insisting on personal involvement in what is signed and sealed undermines what some have called institutional memory, the ability to re-issue plans and plats prepared by the firm but under the direction of surveyors no longer associated with the firm. Does requiring personal involvement inadvertently impinge on the rights of clients? Should they be forced to pay for the "same" service repeatedly simply because the firm has changes in personnel? Whom does a client hire anyway? Clearly the issues here are not black and white.
If genuine responsible charge has traditionally been a dilemma for large offices, the technology now becoming available to the design firm will strain it far beyond anything previously encountered. High-speed, affordable communications equipment such as ISDN phone lines and complementary personal computer hardware has arrived. It is combining with sophisticated "group collaboration software" to make possible "virtual offices," where employees have no overwhelming reason to sit in the same city with one another, let alone in the same building. This is at once exciting and frightening. From a business perspective, the prospect of dramatic savings through the reduction of rent and other office-related expenses bodes well for the bottom line. Additionally, the use of talent located at far distances from the office provides new opportunities—for both employee and employer.
But can we forego the time-honored relationship between responsible parties and their assistants? The virtual office encourages significant departures from the oversight paradigm under which most of us came of age. Until we devise an alternative mode of supervision, the virtual office will leave many managers uneasy. Is the discomfort worth it? Perhaps we are focusing too much on the form of practice and not enough on the substance.
The basic premise of restricting professional practice to licensed individuals is to ensure that projects are invested with expertise. (Some argue that a more insidious reason is to restrict practice to a favored few, a legalized restraint-of-trade. However, there is no evidence that the actual motive behind licensure is to reduce competition. In fact, some maintain that there is too much competition—stemming, in part, from an abundance of licensees.) Of course, the notion that every licensee is vested with expertise is a myth—all surveyors know that. Nevertheless, the failings of the registration/competence-assurance process do not negate the interest of the public in restricting professional practice to competent people. Consequently, licensing statutes presume that licensees will be in direct control of surveying activities. Further, at the most basic level, without a requirement for responsible charge there is no compelling reason for licensure at all. If subordinates could act independently of the responsible person, why must there be a responsible person? Merely protecting the client from loss could be accomplished through a "financial responsibility" provision (mandatory errors and omissions insurance or bonding)—and would have the added benefit of being free from restraint-of-trade allegations.
Firms have always been able to offer professional services with more flexibility (and more resources) than individuals could. Unfortunately, however, firms cannot guarantee expertise; the stories are legion about firms whose quality fluctuated wildly depending upon who controlled the technical output from time to time. Therefore, there is no license for firms, for only individuals can possess competence.
Compounding the problem is the fact that it is all too easy for financial considerations to be placed above qualitative or ethical considerations when the firm is the sole guarantor of the work. Some firms have forced employees to sign and seal documents not prepared under their supervision and without benefit of even a cursory review. The justification proffered is that the firm is ultimately responsible, not the individual; therefore, the licensee need not worry about the details of the document being signed. This practice is repugnant to the registration process and the concepts upon which it is based. The presumption of the public is that surveying work is being overseen by an individual qualified to do so. Moreover, the existence of a licensee’s signature and seal on such a product would belie the fact that the licensee had no participation in, or influence upon, the opinion represented by the document.
Ultimately, licensure protects the public, not individual clients. Since clients have a direct contract with the surveyor (or firm), the financial protection gained through either expressed or implied contractual provisions would usually be sufficient for the client’s protection. This would have been true before the enactment of the licensing statutes. Thus, one must conclude that the protection anticipated by the statutes was not financial, but qualitative. Hence, competency is an indispensable component of the statutes’ intent. Anything less than mandatory responsible charge would then controvert the public’s interest in having surveying performed under the control of competent professionals. Does that preclude the virtual office? I hope not. But unless we devise a mode of supervision that ensures the involvement of the responsible person, the virtual office must remain beyond reach.
Copyright © 1997 By Joel M. Leininger, LS