In some instances, design professionals are asked to review and place their seal and signature on instruments of service prepared by others. There are no standard contracts for such a service. Care must be taken that any contract used and fee required recognize the required review intrinsic in such an arrangement so that state registration law requirements are met. In any event, the many risks created by this situation should be cautiously allocated. Few of the risks of performing such a service for another design professional, however, are professional liability concerns; risk comes mainly from state registration requirements.
State registration laws exist to protect public interests by only permitting the licensing of individuals with a demonstrated level of experience and competence. Through professional licensing laws, states control or regulate activities affecting public health, safety, and welfare. Therefore, licensed design professionals have a duty not only to their clients, but to the public in general. The signing and sealing of documents provides evidence that a properly licensed and authorized individual has been “in responsible charge” of the preparation of the design and the documents expressing that design.
Under state law, a thorough code review may be sufficient for the firm signing and sealing the drawings to meet the requirements of being in-responsible-charge of the project. From a professional liability perspective, the firm signing and sealing the documents is not the only firm “on the hook” for negligence; if the negligence is attributable to the original designer or other firm providing professional services, they will be held responsible too. Signing and sealing a document does not absolve prior firms from being responsible. Regardless of the legal status of the original firm and firm providing the code review, it would still make sense for the reviewing firm to be contractually protected against the negligence of the originating firm.
The design professional actually signing and sealing the instruments of service may want to have a comprehensive indemnity obligation from the client that goes as far as indemnification for the defense of the design professional’s license in any state registration board disciplinary action. If the signing and sealing of the instruments of service of another are seen as an unlawful act by the state registration board, any indemnity would probably be void as being against public policy.
Signing and sealing the documents of another without knowing facts that must be known or exercising due diligence in carefully examining the documents would be negligence in and of itself if the action did not meet state registration laws. While this negligence could lead to a claim that is defended by professional liability insurance, any state registration board action would not be covered by a professional liability insurance policy.