WORKING PRO BONO

Working pro-bono

3 August 2020

Earlier this year, before the coronavirus, there was another crisis that drew the attention of the world. During the Australian Black Summer, our worst ever bushfire season on record, 12 million hectares of land were burned, 1 billion animals were killed and 434 million tonnes of carbon dioxide were released into the atmosphere.[1]

Though the last fire was only extinguished in March, the smoke that blanketed much of the east coast feels like it was a lifetime ago. We wore masks for a different reason then.

Amongst the political controversy and relentless news cycles, then as now we also found it within ourselves to help one another with unprecedented generosity. $500m was donated from sources around the world, destined to support country firefighting organisations, communities and victims. Many in the architecture profession also stood up, offering design services to the 3,000 families who lost their homes across every State and Territory.

This solidarity crystallised principally around Architects Assist, a not-for-profit initiative established by Sydney architectural graduate Jiri Lev, and since taken over by the Australian Institute of Architects, with support from the Australian Institute of Landscape Architects and Planning Institute Australia. It is a directory of around 600 architecture, landscape architecture and town planning practices, plus a further 1,500 students and graduates, all of whom have committed to offering pro-bono design services to bushfire areas with the mission to "build back better."[2]

There are clearly important opportunities here: to support the victims of a terrible bushfire crisis, and provide high quality design outcomes for remote communities. There are also risks attached to these opportunities, which individual practices each need to address when providing pro-bono services.

As the director in charge of the insurance portfolio at ArchiTeam, a principal of architecture practice Mihaly Slocombe, contributor to the Architects Assist directory, and past provider of pro-bono services, I think I'm well-placed to explore some of these risks and provide advice on how to manage them.[3]

Your pro-bono clients = clients

Perhaps the most important advice I can offer is that your pro-bono clients = clients. It might be tempting to think of them differently to paying clients, to assume that you don't need to provide the same standard of care because they're receiving your services for free.

This is of course not the case.

Whether you're getting paid or not, your duty to provide an adequate standard of care remains the same. You retain all the usual legal liabilities to your clients and you can still be sued for negligence. Greg Hansen of Austbrokers Countrywide (ArchiTeam's insurance brokers) has seen litigation over the years where architects providing pro-bono services were nevertheless subjected to the same scrutiny as if they had been paid in full.[4]

Have an agreement

With the above in mind, it goes without saying that you should start your pro-bono relationship as you would a commercial one. This means committing it to paper in the form of a client architect agreement.

I suggest using the same agreement you normally would. The section on fees might be a series of line-items each with $0 against them, but what happens if your clients' scope alters significantly? Who's paying for printing and travel? Do you retain ownership over the intellectual property of your design? Your agreement still needs to cover all of these things (and more), so should be complete with all the details of the services you are to provide, the deliverables to which you are committing, your expectations of your clients, and your standard terms and conditions.

Note that having a written agreement is a minimum mandatory requirement of the Victorian and NSW Codes of Professional Conduct for architects.[5] If you don't have one, a good starting point is this one published by ArchiTeam (free for members).

Be insured

According to Hansen, your professional indemnity and public liability insurance providers should cover you and your staff for your pro-bono project just as they would a commercial one.[6] There are likely caveats on this coverage, typically including requirements like having a client architect agreement in place, so I strong suggest double checking your with your own broker.

Make sure you can afford it

Like any project, your pro-bono project will consume your time over a period of months or years. Unlike any project, it will not reward you economically for this time.

So before you take on your pro-bono project, make sure you can afford it. This means having enough cashflow coming into your practice from other sources, and sufficient time to dedicate to it. It's worth noting that this risk to your cashflow is supercharged if you run a micro-sized architecture practice of one or two people, where even one pro-bono project might represent a large proportion of your current work.

Keep an eye on the calendar

It's important to be very clear with your pro-bono clients how you intend to manage their project. Are you slotting it into your typical workflow, or are you only working on it on evenings and weekends? As with my comments about a client architect agreement, I think the safest approach is to treat your pro-bono project like any other, but I understand this won't be possible for every practice.

In either case, but especially if you're only working in your spare time, make sure you understand the time constraints faced by your clients. It's possible that their insurance company will only cover their rent for a limited period (which I have heard might be as little as one year), at the conclusion of which they will need to be back into their finished home.

Be wary of partial services

Providing partial architectural services is risky at the best of times, as without you around to provide clarification there is an increased likelihood of someone (your client or a builder) misinterpreting the intention of your documents. For your pro-bono project, your clients' household insurance company is almost certainly going to be involved and may want to take over aspects of the project themselves e.g. they may want you to tender it only to pre-approved builders, or insist on managing the construction outright.

In any of these scenarios, make sure you're extra careful in checking the quality of your documentation. It also can't hurt to be a little paranoid about releasing your drawings. I suggest developing a waiver form that you have your client or a builder sign before doing so, indemnifying you against their misuse.

Your clients have just survived a tragedy

Finally, it's important to remember that your pro-bono clients have just had their homes burnt to the ground, and that their communities and livelihoods might have suffered similarly.

Stay sensitive to your clients' needs, and be extra mindful of the value of delivering your pro-bono project on budget and on time. Doing so will reinforce the goodwill you generate by providing your services for free, and allow you to do what you volunteered for in the first place: support the victims of a terrible bushfire crisis and provide high quality design outcomes for remote communities.

This article was originally written for Australian Institute of Architects, NSW Chapter Bulletin.

Disclaimer: this article is provided for reference purposes and as general guidance. It does not take into account specific circumstances and should not be relied on in that way. It is not legal, financial, insurance, or other advice and you should seek independent verification before relying on this content in circumstances where loss or damage may result.

Image: courtesy of NSW Government