THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

PATRICK McINERNEY

Held on 20, 21, 22 and 27 March 2023

By Videoconference

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Present:

Andrew G Webster KC (Chair)
Stuart Carr (PCC Architect Member)
Jules Griffiths (PCC Lay Member)

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The Architects Registration Board (“ARB”) was represented by Mr Greg Foxsmith of Kingsley Napley (“the Presenter”).

Mr McInerney (“the Respondent”) was represented by Mr Sean Schwerdtfeger.

 

 

 

Allegation

1. The Charge against the Respondent is that he is guilty of UPC.
2. The particulars alleged in support of the charge are:

(1) The [Respondent] held himself out as, and/or allowed his clients to understand that he was, a licensed architect in California, when he was not;

(2) on 15 December 2017 the Superior Court of the State of California found that the [Respondent] performed services that required a California architect’s license, despite not holding such a license;

(3) the [Respondent’s] actions at particular (1) were misleading.

 

Background

3. The Charge comes before the Committee further to its jurisdiction under the Architects Act 1997, sections 14(3) and 15(1)(a) to determine whether an architect is guilty of UPC; and if so, to determine whether and if so what disciplinary order ought to made in consequence thereof.
4. The Respondent is a registered architect, resident in California, United States of America. In or about 2013 he was approached to provide professional services to Scott Kivel and Lia Lund (“the Complainants”), who sought to build a home in La Jolla, CA.  During the course of construction works, relations between the Complainants and the Respondent broke down. Litigation ensued and matters were brought to the attention of ARB.  ARB undertook enquiries.  A Report dated 23 June 2021 was submitted to the Committee setting out the above charge.  A Hearing Committee of the Committee was convened on 6 June 2022 but adjourned in the light of comity issues arising from the desire to hear oral evidence by video-link from abroad.  Those issues having been resolved, a Hearing Committee convened on 20 March 2023 to demine the Charge.

 

Admissions

5. At the start of the hearing the Respondent admitted particular (2)(1) of the allegation within the Charge. Otherwise, he denied the particulars of the allegation.

 

Response to allegation

6. The Respondent pled not guilty to the Charge of UPC.

 

Evidence

7. The Committee heard evidence from the Complainants, who adopted their written statements. They both spoke to being impressed with a house designed and by the Respondent in Mission Hills, San Diego, CA, which they had viewed in 2013.  After an unsuccessful bid to purchase that house, the Complainant approached the Respondent to enquire if he would design a home for the Complainants in La Jolla, San Diego, CA.  A design proposal was subsequently submitted by the Respondent in June 2013.  A retainer was paid and the design of the home progressed through workbooks prepared by the Respondent and discussed with the Complainant.  They both said there had been difficulty in finding a contractor, and that after some time the Respondent advised that he could build the home.  The Respondent subsequently undertook building work.
8. The Complainant stated that one of the buildings on the site, containing an office, studio and a guestroom, was constructed of concrete. The Complainant said that during construction the Respondent installed two red signs on property frontages that showed his business as “Patrick McInerney Architects”.  In correspondence he had provided drawings that included the reference “Patrick McInerney Associates RIBA ARB AADipl Inter Assoc AIA”.
9. The Complainant referred to various matters of dissatisfaction for him as regards the progress of the construction, including matters in relation to air-conditioning, a staircase and additional costs. Eventually, the Complainant explained, he instructed a construction manager to complete the project.  Following that appointment relations between the Complainants and the Respondent broke down, the Respondent walked off the site and litigation followed.
10. The Complainant’s evidence was that at no point in time did the Respondent advise him that he was not a California licensed architect. He said he discovered that during evidence given by the Respondent in the litigation.  Hitherto, he had noted that the Respondent’s website had referred to projects he had undertaken in California, he recalled that the Respondent marketed his own house for sale as being by “California architect Patrick McInerney” and that the Respondent’s website and the two red signs erected by the respondent on the property included a San Diego area code telephone number.  He said the design proposal had been set out in a manner that he was familiar with from other AIA (American Institute of Architecture) affiliated architects.  Taken together, the impression he had was that the Respondent was a California licensed architect.
11. The Complainant stated that he was angry that the Respondent had misrepresented himself as a Californian architect when he was not licensed as such. He referred to corrective actions he had to take and a delay that ensued before he could obtain an occupancy permit in 2021, having moved into the home in 2016.
12. In cross examination the Complainant accepted that the Respondent’s website contained reference to projects other than in California and he said he had no knowledge of whether the Respondent was qualified to practice architecture in those other places. He did note two house projects in California on the website and had made an assumption that the Respondent was a California licensed architect.  He accepted that the design proposal prepared by the Respondent in the name of McInerney + Co in June 2013 did not refer to the Respondent as a California licensed architect.  He accepted that the red signs were erected on the property after construction began.  He said he was led to believe the Respondent was a California licensed architect as a consequence of the Respondent’s communication being mixed so that he did not know what each description, whether McInerney Associates, McInerney + Co, or McInerney Architects, meant; he said it was “all a mish mash” and that he was confused.  He accepted that at no time did the Respondent say he was not authorised to practice in California or had hired another architect to build his house, but the red signs had ratified to “us” that the Respondent was a California licensed architect.  He said he expected professionals to advertise responsibly; and that as the Respondent was offering services as McInerney Architects in respect of his proposed home he assumed that the Respondent was an architect and could practice in the place where he was building his home.
13. The Complainant was asked about the subsequent sale of the property in La Jolla and confirmed that it was sold for in excess of $6 million. It was not advertised as designed by a non-Californian licensed architect.  Litigation between the Complainants and the Respondent in respect of the project had been settled.
14. In re-examination after questions from the Hearing Committee, he said that if he had known then what he knew now he would not have hired an unlicensed architect because “California is a minefield”.
15. The Complainant’s evidence was that she understood the Respondent to be a California licensed architect. She took that from the Respondent allowing himself to be described as  “California architect” in the advertising material for the sale of is house, from his website which was styled “Patrick McInerney Architects”, from the fact that she made cheques out to Patrick McInerney Architects, from the signs he put up on the property and from the wording he used in his contract, which she considered to be word for word from AIA contracts she was familiar with.  She said she had never been advised by the Respondent that he was not a California licensed architect.  The Complainant was not cross examined.

 

No case to answer submission

16. After ARB had presented its evidence, an application was made on behalf of the Respondent in terms of Rule 19c of the Professional Conduct Committee Rules, to dismiss the charge on the basis that there was no case to answer.
17. In support of his application, Mr Schwerdtfeger submitted that having regard to the full terms of the Respondent’s website, that included references to projects around the world, it could not objectively be concluded that the Respondent was a California licensed architect. Furthermore, the professional post-nominals of the Respondent on the plans prepared by him gave nothing to cause a reasonable person to conclude the Respondent was so licensed.  The reference to AIA was followed by “Inter Assoc”, which clearly indicated, or at least on a Google™ search would disclose, that the AIA reference did not pertain to Californian licensing.  He submitted that the Complainant was a Stanford educated Californian attorney.  The Californian bar has a similar protocol to the AIA in terms of internet search function (the Committee notes, however, that there was no evidence presented to the Hearing Committee that such was the case).  He submitted that a reasonable person with the subjective knowledge of the Complainant would be able to make such an investigation.  Whether looked at purely objectively, or with the subjective knowledge of the Complainant, there was no case to answer.
18. The Presenter submitted that there was evidence before the Committee that, if accepted, proved particular (1) of the allegation and that the Respondent’s conduct was potentially misleading. He relied on the written statements of the Complainants and the documentation and signs they had referred to.  He submitted that there is no obligation on members of the public to google an architect’s qualifications to correct a misapprehension.  Furthermore, that the Respondent may have done work elsewhere than in California was not relevant as to whether references to projects in California represented that he was qualified to work in California.  The evidence demonstrated that the Respondent had not disclosed until after the relationship between the parties had broken down that he was not a California licensed architect.  He invited the Committee to find that there was a case to answer.
19. In reaching its decision the Committee had regard to the advice of the Legally Qualified Chair that the issue before it was one of sufficiency of evidence: whether there was evidence which if accepted could properly permit the Committee to come to the conclusion that the Respondent’s conduct amounted to UPC. If the view of the Committee was that the evidence presented was such that it could not properly find the charged proved it would have the acquit the Respondent.  If, however, there was evidence that on at least one proper view would allow the Committee to find the Respondent guilty of UPC the application fell to be refused.
20. The Committee noted the Respondent’s admission of particular (2) of the charge. Standing that admission, the Committee was satisfied that it could, in the exercise of its judgment, proceed to find UPC.  In the view of the Committee, performing services that required an architect’s licence when not holding such a licence, could be described as a serious failing short of the standards required of an architect and amount to UPC.  Whether it was, is a matter for the Committee’s judgment.
21. As regards particulars (1) and (3) of the charge, the Committee determined that there was at least evidence before it as to the placing of notices bearing the Respondent’s name in proximity to work that by admission required a California architect’s licence, that could carry an implication that the Respondent had promoted himself in relation to work which required such a licence and as such had impliedly held himself out as qualified in relation to protected work. Standing the admission that the Respondent did not hold such a licence, the Committee was also satisfied that there was evidence before it that could carry the conclusion that, if particular (1) was proved, the Respondent’s actions were misleading.  The Committee was further satisfied that, if proved, particular (1) alone, or when taken with particular (3) could also be said to describe a serious falling short of the standards to be expected of an architect and would amount to UPC.
22. The Committee therefore repelled the submission of no case to answer.

 

Further evidence

23. The Committee then heard evidence from the Respondent and from three other witness called by the Respondent: EC, the Realtor who acted for the Respondent; PB, a California licensed architect; and AB, a California licensed structural engineer.
24. The Respondent explained his professional background in the United States of America and in the United Kingdom before returning to San Diego in or about 2005. He had designed and built his own home there.  He described the home as an example of “contextual minimalism.”  It was put up for sale in 2011 and marketing was entrusted to the Realtor.  He said he had asked the Realtor to make it clear that he was not a California licensed architect.  He said it was “common knowledge” that he “was taking” the required exam in California.  The Complainants had viewed his home and made an offer but had not been successful.  He was subsequently contacted by the Complainant and asked to assist in the development of a home for the Complainants in La Jolla.  He said he met with the Complainant at a restaurant for a lunch that lasted several hours.  He said he advised the Complainant that that he was taking his architectural exam (that such a statement had been made was not put to the Complainant in cross-examination.)  He explained that he advised the Complainant that the proposed development would require a Coastal Development Permit (“CDP”) in the light of its location; and that he had no experience of obtaining such a permit, the grant of which was discretionary.  He stated that his own home had not been referenced on his website until November or December 2013, some six months after the Complainants had first become interested in his work.  The screen shot of his website in the Exhibits to the report was undated and referred to three house projects in California.
25. He said that when he submitted to the Complainants his original scope of work proposal in May 2013 a concrete structure was not intended at that time. The proposal referred to “a one two-floor, above-grade, timber framed construction”.  He did not accept that his proposal followed the wording of a standard for AIA contract.  He originally had no intention of becoming involved in the construction phase of the home.  His proposal was immediately accepted and a cheque was tendered.  He then, through a series of workbooks, developed the design with the Complainant.  He quickly obtained a CDP.  He had attended a meeting of the Community Board and had explained that he was a British trained architect.  He described the construction process, including the development of an “accessory” building to the main living accommodation.  He said that the Complainants asked for the “lower accessory unit” (a reference to what plans disclosed as a two storey building detached from the main living, dining and sleeping building and accommodating a studio, study and other accommodation) to be made of concrete.  He said he advised them that this would be significantly more expensive.  He had provided the Complainant with the name of three structural engineers.  The Complainants had retained and paid for a structural engineer in respect of the development.
26. He said that no dissatisfaction was expressed in the services he provided and that the Complainant had been most complementary. He eventually agreed to offer construction services to the Complainants.  There were, however, “hundreds” of changes proposed to the design by the Complainants, that went well beyond the original scope of work.  The design had been exacting and the changes were difficult to accommodate and required additional drawings to record the location of services.  He said that he had also designed furniture for the house and procured furnishings at a discount for the Complainants.  He disputed that there had been a manufacturing defect in the staircase referred to.  He accepted that the relationship between the parties deteriorated.  He said he was physically and professional threatened.  He left the site and did not return. He denied he had “walked off” the site.
27. As regards the two red signs referred to earlier in evidence, he explained that he had put those signs up to pacify neighbours, to demonstrate that “what we were doing had integrity” and to give a line of communication, rather than to the city authorities in the event of concerns.
28. In cross-examination he explained that it was common knowledge amongst his family members, friends and clients that he was taking his architectural exam. He said “I find it very unlikely that I wouldn’t have mentioned that I didn’t take the exam” at the luncheon he had earlier referred to.  He accepted that the Complainant had not been at the Community Board meeting when he described himself as a British trained architect.  He said the Complainants were not interested in whether he was a California licensed architect until they started legal proceedings against him.  The Complainants’ interest was in his home and the desire to obtain a similarly designed house which they could not get without him.  He said, “it was my home, the product, not me that they were focused on.”
29. As to the circumstances in which the parties went their separate ways, he initially stated that he had been threatened by the Complainant and then his lawyers, but when it was put to him that it was not the case that the Complainant threatened him he agreed that was indeed the case.
30. The Respondent was asked if, in retrospect, he considered there had been an omission on his part in not disclosing the absence of California licensed status. In response the Respondent state that he had learned many lessons, including that there are people who will take from you and that evil does exist and that he has seen it.
31. The Respondent was also asked whether he had been inadvertently misleading. His response was that he was taking his exam.  He was asked if it was found that he had been misleading whether he considered his conduct would have an effect on the wider public.  His response was that if a professional was found in a pattern of misleading behaviour that might affect the profession.  He said that he now informs clients of has absence of California Licenced architect status as a result of the lessons he has learnt in this matter and because he cannot assume that someone knows that. He does so to make it unequivocal.  He said he regretted not including express reference to the absence of a licence in his writings with the Complainants and said, “this has been a tremendous journey.”  Latterly he said he did not believe he had misled the Complainant.
32. After expressing apparent difficulty in understanding the question put and then pausing to consider his answer, he did not consider that the finding of the Superior of Court of California that he had performed services that required a California architect’s licence, despite not holding such a licence, undermined the profession.
33. Following a short re-examination of the Respondent, the Committee heard from the Realtor. She stated that she was a ‘architectural specialist” and had acted on behalf of the Respondent in the sale of his own San Diego home.  She found the Respondent always to be straightforward.  She knew he was “licensed in England” but had never known him as a California licensed architect.  She had never referred to him as such.  Neither Complainants had asked her if the Respondent was a California licensed architect and volunteered “and they know that.”
34. The California licensed architect’s evidence was that he was a California licensed architect based in San Diego. He was a member of the La Jolla Community Planning Association.  He had been present when the Respondent had made his presentation to the Board of the Association in support of a CDP.  He recalled the Respondent had represented himself as having experience with David Chipperfield, of having experience in UK projects and that he was licensed in the United Kingdom.  The Respondent had made it clear that he had not yet received his architects’ licence in California.  He stated that the design ordinance for the location where the Complainants’ house was being built was very specific.  He had passed the project three days a week during construction.  He considered the Respondent’s management of the project was seamless.  He said he did not know the Respondent to be dishonest.
35. AB was a California licensed structural engineer, with 25 years’ work experience. He said was licensed in California to design structures without an architect and to procure approval of any structure.  He could, by application of his seal, approve drawings.  He had provided a structural engineering service in respect of the Complainants’ La Jolla house.  He said “we designed the accessory dwelling unit, the entirety of the unit.  Our role was to completely design the structure and have it approved”.  He said the Respondent never said to him that he was a licensed as a Californian architect.  He said he knew the Respondent was not a California licensed architect.  He knew the Respondent to be forthright and honest.
36. In addition to the oral evidence and the witness statements adopted by the ARB witnesses, the Committee had regard to the documentary material presented with the Report to the Committee and to a Report and documentary material attached thereto from the Respondent.
37. The Presenter on behalf of the ARB made submissions on the evidence. He invited the Committee to find the allegation proved in its entirety and to find the Respondent guilty of UPC.
38. Mr Schwerdtfeger on behalf of the Respondent also made submissions. In the course of those submissions, on behalf of the Respondent he admitted particular (1) of the allegation but invited the Committee to find particular (3) of the allegation not proven and the Respondent not guilty of the Charge.

 

Findings of fact

39. In reaching its decisions the Committee carefully considered the submissions made, together with the evidence presented to it, both in documentary form and in oral evidence.
40. The Committee also had regard to the advice of the Legally Qualified Chair that on disputed issues of fact, the onus of proof was on the ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining the facts, the Committee considered the evidence in the round and noted that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate.  The Committee also recalled that as the Respondent was said by others to be of good character, that where matters were disputed such good character evidence might, if accepted, support the credibility of his evidence and make it less likely that the Respondent acted as alleged.
41. The findings of the Committee are:

 

Particular 1: ADMITTED AND FOUND PROVED.

42. The Committee had regard to the admission made during submissions on behalf of the Respondent.
43. In any event, there was no dispute in the evidence that the Respondent had provided architectural services to the Complainants. The construction that ensued was described in evidence.  It consisted of, amongst other things, a building containing living, dining and sleeping accommodation and an accessory building, separated by a swimming pool, containing a study, a studio and other accommodation.  The construction drawings relative to the project before the Committee bore to have been prepared by Patrick McInerney Architects.  On occasion they also bore the Structural Engineer’s stamp.  The Committee noted the Structural Engineer’s evidence that “we designed the accessory dwelling unit, the entirety of the unit.  Our role was to completely design the structure and have it approved” (emphasis added).  Bearing in mind also the construction drawings bore both the description “Patrick McInerney Architects”, the Respondent’s various professional post-nominals, his email address and on occasions, in addition, the Structural Engineer’s stamp, the Committee concluded on the balance of probabilities that the Structural Engineer’s reference to “we” and “our” demonstrated a collaborative enterprise between him and the Respondent.  The Respondent admitted that the Supreme Court of the State of California had found that in respect of the Complainants’ La Jolla residence he had performed services that required a California architect’s licence despite not holding such a license.  The Committee therefore concluded on the balance of probabilities, having regard to the decision of the Supreme Court, that the Respondent had presented to the Complainants drawings prepared by him and stamped by the Structural Engineer without qualification as to the Respondent’s inability lawfully to provide at least some of the architectural services he was providing.  By the Respondent’s own admission, he was not so licensed.  The Committee was satisfied that in providing architectural services that only a California licenses architect could lawfully provide as a lawful activity the Respondent thereby held himself out as a California licensed architect.
44. Particular (1) in its second leg is concerned with whether the Respondent allowed the Complainants to understand that he was a licensed architect when he was not. In context, this part of the allegation is concerned with a failure to disabuse a perception.  The Respondent’s position was that he had advised the Complainant over their introductory luncheon that he was taking his architectural exam.  It was said that the Complainant, being a Stanford educated attorney ought to have appreciated that such a comment carried the implication that the Respondent was not licensed in the state of California.  However, that such a statement was made was not put to the Complainant in cross-examination and so was not tested in evidence.  The Committee therefore place little weight on the evidence of the Respondent in this regard.  The Complainant’s evidence was that the first he became aware of the absence of a California licence was in the course of the legal proceedings after relationships had broken down.  The Committee resolved this dispute in evidence as to knowledge, constructive or otherwise, of the absence of a licence by having regard to the evidence of the Respondent and the Complainant in the round.  In respect of the Complainant, the Committee found his evidence to be consistent with the documentary material before it.  It was consistent in its terms and with the evidence of the other Complainant.  As regards the Respondent’s evidence, the Committee noted a tendency to exaggerate.  Thus, he said in evidence that he had been thrown off the site by the Complainant personally, but when it was suggested to him that the Complainant had done no such thing, he accepted that was indeed the case.  The Committee noted the attention to detail exacted by both Complainants in the construction of their home that led to the breakdown in relationships.  Standing that attentiveness, the Committee concludes that if it had been mentioned during the luncheon that the Respondent was sitting his examinations the Complainant would have been astute to recognise the absence of qualification in California.  The Committee, finding the Complainant to be an otherwise conscientious historian of events, concludes that had he been made aware of the examination issue the project would not have progressed as it did.  That it progressed as it did caused the Committee to conclude, on the balance of probabilities, that there was no discussion as to examinations during the luncheon.  The Committee therefore prefers the evidence of the Complainant over the evidence of the Respondent on this point and accepts the evidence of the Complainant, and the supportive evidence of the other Complainant, that they had assumed from all the circumstances known to them, including the provision of architectural services in California by the Respondent, that the Respondent was a California licensed architect.  Whether it was reasonable for them to do so is nothing to the point that they had done so and the Respondent did nothing to disabuse them of that belief.
45. The Committee therefore determined that this particular of the Charge had been proved.

 

Particular (2): ADMITTED AND FOUND PROVED.

46. The Respondent admitted this particular of the allegation, namely that on 15 December 2017 the Superior Court of the State of California found that the Respondent performed services that required a California architect’s license, despite not holding such a license. The Committee noted that the admission was consistent with the documentary material before it.  The Superior Court did so conclude.  The decision of the Court discloses that it so concluded on the basis that the Respondent had designed the two-storey annex or accessory building (that containing the studio, study, and other accommodation) to be of “poured-in-place concrete.”  It rejected the Respondent’s submission that there was an exemption from the need for the architectural services provided by the Respondent to be provided by a California licensed architect if there was an imprimatur of a California licensed structural engineer, observing that such exemption arose in respect of timber framed buildings, but that the accessory building was all-concrete accessory building.  The Committee thus found this particular proved.

 

Particular (3): FOUND PROVED.

47. Conduct that is misleading is, in the view of the Committee, conduct that creates an impression that is not true. There was no evidence that the Respondent had expressly stated to the Complainants that he was a California licensed architect.  It was not disputed in the evidence that the Respondent had not stated expressly to the Complainants that that he was not a California licensed architect.  However, to hold oneself out as a person lawfully entitled to undertake work that one is not lawfully entitled to do does, in the view of the Committee, create an impression that is not true and therefore is misleading.
48. Whilst there was evidence of the Respondent advising the Community Board of the absence of a California license, there was no evidence that the Complainants were aware of that. Furthermore, the Committee was satisfied that there was no obligation on the part of the Complainants to have investigated what had happened at that meeting or indeed the Respondent’s qualifications generally.
49. Therefore, in the absence of any evidence to justify a conclusion that the Complainants were aware of the true state of affairs and the Respondent having nevertheless provided services to them, the Committee was satisfied on the balance of probabilities that the Respondent’s actions are found proved under particular (1) were misleading.

 

Finding on UPC

50. Having found the foregoing facts proved, the Committee proceeded to consider whether the Respondent’s conduct amounted to UPC, that is “conduct that falls short of the standard required of a registered person” (s. 14(1)(a), Architects Act 1997). The Committee had regard to the submissions made by the Presenter and Mr Schwerdtfeger and the advice of the Legally Qualified Chair.  It recalled that that the issue of whether the proved conduct amounts to UPC is one for the Committee’s independent judgment.  The deficient conduct must be serious.  The Committee also bore in mind that to reach a decision of UPC “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required (Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin), [2013] 1 WLR 1307)  The Committee also reminded itself of the relevance of drawing a distinction between a single act and multiple acts of concern, viz. “mere negligence does not constitute misconduct” and that:

 

“a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions and a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance.” (R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin).)

 

51. The Code, as applied at the relevant time, provided at Standard 3.1 that an architect is expected to promote their professional services in a truthful and responsible way. By holding himself out as he did, and by allowing his clients to understand that he was a licensed architect in California when he was not, the Respondent failed, in the opinion of the Committee, to meet the standard of conduct expected of architects.  The implication to be drawn from the Respondent’s provision of architectural services including in relation to the concrete accessory building, namely that he was licensed to provide such services, was not true.  In making that implicit representation, the Respondent did not act responsibility towards his clients: he created a false impression.  That they may have been able to ascertain a different state of affairs elsewhere is beside the point as they were under no obligation to investigate.  Furthermore, in creating such a false picture he misled the Complainants.  Standard 1.2 of The Code provided, at the relevant time, that an architect should not make any statement that is misleading.  The Respondent also failed to meet that expectation of conduct.
52. Furthermore, the Committee was of opinion that a finding by a court that an architect has provided professional services that required a license when no such licence was held is liable to bring the profession into disrepute. Maintenance of the reputation of the profession requires adherence by its members to accepted standards of behaviour.  The Committee had no difficulty in concluding that where the professional conduct of a member of the profession has been subject to adverse judicial comment as regards the lawfulness of that conduct, the confidence the public have in members of the profession and the reputation of the profession at large is undermined.  Being a registered architect affords many advantages, but also entails duties and responsibilities which the public are entitled to expect to be followed, not least that as regards the provision of professional services, that service is being provided in a lawful manner.
53. The Committee recognised that the matters found proved represent an isolated matter in respect of an otherwise unblemished professional career. However, the Committee considered that the Respondent’s conduct, although isolated, was serious in that it went to the Respondent’s probity and undermined the trust of the public in the profession in the context of the provision of professional services.
54. Cumulatively, but also, if necessary, taken on their own, each and all of the proven particulars are serious shortcomings on the part of the Respondent to which the descriptor UPC is to be applied. The Respondent’s conduct fell short of the standard to be expected of an architect.  The Committee thus determines that the Respondent’s conduct does amount to UPC.

 

 

Sanction

55. No further evidence was presented to the Committee. The Committee went on the determine whether a disciplinary order should be imposed and, if so, what that order should be.
56. The Presenter submitted, under reference to the Sanctions Guidance issued by ARB, that the Respondent’s conduct had an impact and had caused some harm to the Complainants. Although they had resolved the litigation between the Respondent and themselves, they had spoken in their witness statements to the distress caused to them.  The Presenter submitted that this was not a case of the Respondent having engaged in a pattern of misconduct, nor was it a case of deliberate conduct on the part of the Respondent.  The Respondent had not executed a manipulative strategy towards the Complainants and the Complainants could not, he submitted, be considered vulnerable.
57. The Presenter submitted that the issue of insight was perhaps the most relevant consideration in determining whether, and if so, what sanction to impose. ARB did not make a submission as to what sanction was appropriate and left that to the judgment of the Committee.  He submitted that the issue of insight was nuanced.  He drew attention to the Respondent’s early admission of particular (2) of the Charge but contrasted that with the Respondent’s denials of the other two particulars.  He observed that the Respondent had taken steps to deal with the mischief in the Charge by explaining that he now always tells his Californian clients that he is not licensed as an architect in California.
58. In response, Mr Schwerdtfeger submitted that the Respondent had reflected on the past and on events during the hearing. The Respondent respected the time spent by, and the decisions of, the Committee.  As to insight, he observed that the Respondent had entered into a written agreement resolving all claims.  The Respondent had tried to the best of his ability to conduct himself properly.  The Respondent does not want to relive the experience of the regulatory proceedings.  The proceedings had had a profound effect on the Respondent, both professionally and personally.  The Respondent took the proceedings “extraordinarily seriously” and will learn from the process.  Mr Schwerdtfeger submitted that the Respondent was not a recalcitrant person.  The Respondent wants to be known as an excellent architect and a man of integrity.  He has learned his lesson.  He was a good, honest, decent man and will take additional measures, beyond those to which he testified, to avoid a repetition of events.
59. In reaching its decision the Committee had regard to the Sanctions Guidance and recalled that the primary purpose of any sanction is to protect the public, to uphold public confidence in the profession and to declare and uphold proper standards of conduct and competence. Sanctions are not imposed to punish architects but they may have a punitive effect.  Whether to impose a disciplinary order, and if so what order to impose, was a matter for the Committee’s judgment.
60. The Committee considered first such aggravating and mitigating facts as were relevant to its determination. The Committee took the view that there was some harm to the Complainants relative to the absence of a California architect’s license, but that it was minimal.  Whilst there was evidence of delays and additional costs incurred in the construction of the La Jolla home, those issues were matters arising in relation to the construction of the home rather than the Respondent’s status as an unlicensed architect in California.  In mitigation of the Respondent’s conduct, it was noted that there were no prior or subsequent regulatory issues of concern.  There was evidence from the Respondent that he had taken steps to prevent a repetition of events with future clients, although there was no vouching to that effect.  The Committee also had regard to the evidence presented as to the Respondent’s good character and his engagement with the regulatory process.  The Committee also had regard to the Respondent’s early admission of particular (2).  Recognition was made of the admission relating to particular (1) of the Charge, but the Committee placed little weight on that in the light of the timing of the admission, at the end of closing submissions.
61. The issue of the Respondent’s insight was of particular concern for the Committee. The admissions made were relevant and were taken into account.  Further, the Respondent’s stated remedial action was also relevant.  However, the Committee remained concerned that the Respondent had been unable to easily identify the significance of the Supreme Court’s ruling as regards the reputation of the profession.  The Committee also remained concerned as to the depth of the Respondent’s appreciation that that he had held himself out inappropriately and had failed to correct a misapprehension on the part of the Complainants which had been misleading.  In the view of the Committee the Respondent still has some distance to go in his understanding of the significance of his conduct.
62. The Committee considered first whether it would be appropriate to impose no disciplinary order. It determined that the level of seriousness of the Respondent’s conduct was not so low as to render it unfair or disproportionate to impose a sanction.  The Respondent’s conduct was deliberate and required to be sanctioned.
63. The Committee then considered whether a reprimand would reflect the seriousness of its findings. Having regard to the Sanctions Guidance, the Committee weighed its concerns as to the level of the Respondent’s insight as to his conduct, in so far as it might affect his conduct in the future and the primary purpose of sanctions, as set out above, with all other considerations.  The Committee was concerned as to the true depth of the Respondent’s understanding of the unacceptable nature of his professional conduct.  However, it did recognise that the Respondent had not acted dishonestly.  He had shown some insight and engagement.  He had also taken steps to avoid a repetition of his conduct.  Significantly, he had acknowledged that he had made a mistake in his conduct.  The Committee noted the Respondent’s meticulous attention to detail in his professional work.  It took the view that a reprimand made it clear to the Respondent and the wider public that he had failed to meet the exacting standards of his profession and, that recognising his own high standards, the significance of the reprimand would not be lost on him.  In the view of the Committee a reprimand from his professional body would have a salutary effect on the Respondent going forward and determined that a reprimand would be an appropriate and proportionate order in this case.
64. As a cross-check the Committee considered whether the imposition of a penalty order would be a more appropriate and proportionate disposal. In the view of the Committee a financial penalty would add nothing of materiality to the significance of a reprimand on the Respondent.
65. The Respondent is hereby reprimanded for his unacceptable professional behaviour.