Which of the following is not one of the fundamental canons from the nspe code of ethics:

During the decade and a half before World War I, AMA organized medicine as a modern profession. Among the milestones in that process were not only the rethinking of medical education (set forth in the 1910 Flexner Report) but also the abandonment in 1903 of AMA’s mandatory Code of Ethics of 1847 for the “suggestive and advisory” Principles of Medical Ethics. That was followed in 1912 by the abandonment of the 1903 principles for another code (with the same name) binding on all physicians (and surgeons). At about that time (1909), the American Institute of Architects (AIA) adopted its first code of ethics. That code applied only to members of the organization and not to all architects, but the code (like AMA’s 1847 code) was binding on all architects. The AIA kept this feature when it adopted a new code in 1977, one organized—like the ABA’s 1969 code (which was to be abandoned soon after)—into canons (broad statements of principle), ethical standards (more specific goals that AIA members should aspire to), rules (mandatory standards, the violation of which would justify formal discipline, including expulsion from the AIA), and commentary (when necessary to avoid a common misinterpretation of a rule).55

The 1909 AIA code reached all architects, not just AIA members, through its adoption by state licensing boards as local standards of practice. That simple arrangement ended in the 1970s, when the courts declared the AIA’s code to be an unreasonable restraint on trade. While the AIA was rewriting its code to avoid another lawsuit (a process that did not end until 1990), the National Council of Architecture Registration Boards (NCARB) wrote its own code.56

Because the states’ licensure of architecture is generally similar to the states’ licensure of accountants (and, in some states, lawyers), continuing education requirements are also similar. Courses must be accredited to satisfy the continuing education requirements. The AIA itself offers some online courses that satisfy continuing education credit. Some of these courses are now prepared by suppliers.57 So far, supplier-prepared courses do not seem to be a problem. One reason that they are not may be that architects’ specifications (the equivalent of a physician’s prescription) typically either state a generic requirement or take the form “brand x or its equivalent” Another reason that supplier courses are not a problem may be that they do not include a trip to some ideal location, lavish entertainment, or other gifts. The course itself must be valuable enough to repay architects for their time and for lost opportunities to take other courses.

Architects resemble physicians, lawyers, and accountants in not being able to practice (that is, advertise, sign drawings, or otherwise publicly present themselves as architects) without registering as one (that is, being given a state license to practice). Beginning in 1919, registration boards have maintained a nonprofit group to provide a number of services to the profession: a standardized test for admission into the profession, standards for work experiences that a new graduate of an accredited architectural program should have before licensure (Intern Development Program), self-administered continuing education courses, and so on. NCARB’s code of ethics (Rules of Conduct) is just one of these services. Adopted in 1977 (and amended since), the Rules of Conduct are designed to provide hard-edged rules for discipline (once a state board adopts them). Besides the nominal “Rules”—five titles numbered with Arabic numerals—the code includes (1) actual rules under each rule (numbered with a decimal), (2) a brief commentary after most of these rules, and (3) a long introduction (40 percent of the entire 10-page code). Although the NCARB code does set a somewhat lower standard than the (shorter) AIA code, it generally does so by silence rather than by providing a formal rule significantly different from the corresponding AIA rule. The AIA issues ethics opinions much as AMA does; NCARB does not. A state registration board may, however, issue an opinion as part of disciplinary action against a particular architect.

Conflict of interest is plainly important in the practice of architecture. The second of the five major divisions in NCARB’s Rules of Conduct is titled Conflict of Interest; the third major division, although it is titled Full Disclosure, is in part (Rule 3.1) about responding to conflict of interest. The other divisions of the code—Competence (Division 1), Compliance with Law (Division 4), and Professional Conduct (Division 5)—have no connection with conflict of interest.

The overall strategy in these provisions is clear. Conflict of interest should generally be avoided, but when avoidance is not possible or at least not reasonable, the conflict must be fully disclosed to all appropriate parties and their consent must be won before the architect can proceed. Interestingly, the term “conflict of interest” is not used in any of the specific rules; its definition is, in effect, the rules under that title. All of the relevant rules (including Rule 3.1) are (primarily) concerned with financial interests. There are four rules under Rule 2, Conflict of Interest.

Rule 2.1 applies to ordinary compensation for services. An architect “shall not accept compensation for services from more than one party on a project unless the circumstances are fully disclosed to and agreed to … by all interested parties” Both disclosure and agreement are to be “in writing” The commentary explains that architects may sometimes find it hard to avoid receiving payment from two parties—for example, when ordering a large number of windows from a supplier later produces a rebate check. The architect cannot simply accept the rebate (even if it comes as a surprise) but must first inform the client (and other interested parties) of the payment and the reason for it. The architect cannot accept the payment unless at least the client (and any other interested party) approves. The commentary explains that the “bifurcated loyalty” that such a rebate threatens is “unacceptable unless all parties have understood it and accepted it” The commentary does not limit the “parties” to the client. This is because in many architectural projects several parties may be affected by the payment, such as the engineering firm typically present at any large project, the developer (who may be the immediate client but who is, in fact, a stand-in for the ultimate owner), the ultimate owner (who may be one or more individuals or a legal entity), and even the contractor or subcontractor who must work with the rebated supplies. The commentary can even be interpreted as including the window supplier’s competitors among those who must be informed of the payment and the reason for it. They are certainly “interested parties” They are at a competitive disadvantage if they are not also making such rebates.

Behind Rule 2.1 is a conception of architects as having a relatively settled loyalty to the client that everyone dealing with the client relies on. An unusual payment (such as the rebate described above) unsettles the situation. There is no question here of the supplier buying the architect’s loyalty with the rebate (as there would be if the payment were a bribe or kickback). The problem is that “money talks,” and even architects cannot gauge how much they will listen the next time that they place an order of that sort. Their judgment that their professional judgment will not be affected is not relevant. That, too, is now under suspicion.

Disclosure of the payment makes it possible for all interested parties to redefine their relationship to the architect to take account of this unusual feature. The client may, for example, require the architect to hand over the entire rebate (as well as ask other suppliers whether they will meet the com petition). However, because the architect’s fee is often a percentage of the total cost of the project, this solution may not be the best. It would create a “perverse incentive” The architect would, in effect, be punished for saving the client money. The architect would have an incentive to avoid suppliers who give rebates. The client might then prefer to split the rebate with the architect, or they might work out some more complicated arrangement—of which all interested parties should be made aware to ensure that their trust in the architect’s judgment is not misplaced.

Rule 2.2 concerns financial interests apart from payments, for example, stock in a potential supplier or a loan to a contractor. The architect must assess whether the interest (direct or indirect) is “substantial enough to influence his or her judgment in the performance of professional services” (whether or not it does or would in fact influence it). Architects thus have some discretion under this rule (as they do not under Rule 2.1). The rationale for allowing some discretion (concerning whether an interest is substantial enough) is that avoiding all financial interests seems too much to ask. For example, an architect with money in a large investment fund that holds a few shares of stock in one of the companies she or he is dealing with has an interest in that company. Is revealing such an interest worth the trouble? Should architects be required to avoid investing in any fund that might (on a given day) invest in a potential supplier? That seems too much to require, so long as the architect reveals any interest substantial enough to affect her or his judgment. Of course, when in doubt, the architect should reveal the interest. Rule 2.2 seems to work because it governs only interests other than payments, because architects seldom invest in suppliers and because most architects work in a small world (mostly developers or builders rather than individual clients) in which a substantial investment in a supplier would soon be known.

If the interest is enough to influence the judgment, the architect must fully disclose it in writing to the client or employer (thus creating a paper trail). If the client or employer objects to the business association or the financial interest, the architect must either terminate it or offer to give up the commission or employment. The client or employer may have good reason to accept the bifurcated loyalty that the business association or financial interest in question creates, but the decision is the client’s or the employer’s (or both, when an architect has both a client, the person who has hired the firm, and an employer, the architectural firm). That decision should be made only with all the relevant facts laid before the decision maker in a form that the decision maker can understand. If the architect is unwilling to make full disclosure, she or he must resign from the job. There is no middle way (no way to manage the conflict) without full disclosure and consent.

Rules 2.3 applies to any payment made in return for specifying or endorsing a supplier. Strictly speaking, this rule does not concern conflict of interest but concerns bribes, kickbacks, and other side payments that buy the architect’s judgment. Architects are simply forbidden to solicit or accept such payments. The brief commentary notes that this rule is “absolute”; that is, it admits of no exception, even when all the relevant parties would agree to the payment after full disclosure. So, for example, an architect cannot have an agreement with a supplier that she or he will recommend a certain window frame even if she or he fully informs the clients of that agreement and the clients say, “Fine” Why? Although many of the payments in question are in fact illegal, the rule is indifferent to their legality. Even legal payments for specifying or endorsing a supplier (say, lending one’s name to an advertising campaign) are forbidden. What explains this striking departure from architecture’s standard strategy of allowing conflict of interest when the relevant parties consent after full disclosure?

The answer seems to be this: conflict of interest threatens professional judgment. It makes it less reliable than it would otherwise be. Sometimes such threats cannot be avoided or cannot be avoided at reasonable cost. Those relying on the architect’s judgment then have the right to weigh the costs and benefits and decide whether to take the risk. In contrast, an agreement to specify or endorse a product does not threaten professional judgment. It does something much more dramatic. The architect has, in this respect, signed away judgment. By the agreement, the architect gives up future judgment of the appropriateness of the product in question. The agreement with the supplier prejudges the matter. The architect cannot both claim the power of an architect in that respect (the right to use her or his judgment to decide what is appropriate in that case) and follow an agreement prejudging the case.

Side payments for endorsement are also, in one respect, unnecessary. The client or employer derives no benefit whatsoever from them, and (generally) the architect does not need them to survive or prosper. They are simply not an essential part of practicing architecture.

This explanation of Rule 2.3 treats it as something other than a rule concerned with conflict of interest. Selling one’s judgment does not, in general, create a conflict of interest (that is, it does not threaten professional judgment). However, sometimes it does. For example, if Person A is paid to endorse a product as part of an advertising campaign, Person A will have a greater tendency to specify that product than he or she otherwise would. That tendency is what makes Rule 2.3 in part a rule concerned with conflict of interest. Forbidding endorsements for pay eliminates one sort of conflict of interest.

Rule 2.4 concerns the architect acting as adjudicator, that is, as the interpreter of building contract documents or the judge of contract performance. When acting in this role, an architect is to “render decisions impartially, favoring neither party in the dispute” The commentary makes clear that it is customary in the construction industry for the architect, even though he or she is paid by the owner and owes loyalty to the owner, to settle disputes between the owner and a contractor, subcontractor, or supplier concerning whether work has been performed as the contract requires or whether the contract requires this or that. When acting in this capacity, the architect must (according to NCARB) act impartially. If the architect does not believe himself or herself to be capable of acting in that way, he or she “may appropriately decline to act in those two roles” (as the agent of the owner and as a judge between the owner and an adversary). The architect’s role in such circumstances has a threat to independent judgment built into it (an interest but not a “special” interest). Both architects and those they work with are aware of that threat to independent judgment. They have traditionally tolerated it since the alternative is whatever delay is necessarily consequent on seeking a truly impartial judge far from the work site. Nonetheless, the architect must at least believe himself or herself to be able to render impartial judgment. If the threat to impartiality is significant enough that the architect doubts his or her own judgment, the architect may (and, indeed, should) decline. Interestingly, the rule is not satisfied if the architect merely believes himself or herself to be impartial; the architect must actually render an impartial decision. If the decision is obviously biased, the architect would be subject to discipline under the rule, even though the architect believed himself or herself to be impartial.

Like Rule 2.3, Rule 2.4 is an absolute rule (although the commentary does not say that explicitly). The rationale for its absoluteness is also much the same as that for Rule 2.3. The point of asking the architect to judge between the owner and those working on a site is to receive quickly (something approaching) impartial judgment (a judgment informed by the architect’s knowledge of construction, the documents, and local custom). If the architect were known to be partial, his or her value as a judge would be much reduced. The rule preserves the usefulness of architects in settling such disputes (an efficiency serving everyone’s interests in the long run). Like Rule 2.3, Rule 2.4 is (primarily) concerned not with conflict of interest, strictly speaking, but with something closely related, that is, the typical outcome of judgment free of conflict of interest (as well as of bias and prejudice): an impartial decision.

The last of NCARB’s conflict of interest rules is Rule 3.1. It requires an architect making a “public statement on architectural questions” (that is, speaking publicly in a professional capacity) to “disclose when he or she is being compensated for making such statement or when he or she has an economic interest in the issue” So, for example, an architect paid by a developer to testify on behalf of a project would have to state that she or he is being so paid. An architect writing a journal article on behalf of a certain manufacturer’s product would have to disclose ownership of even a single share of stock in that company. For public statements, the standard of disclosure is more demanding than for statements to client, employer, or other private person. (The term “substantial enough” in Rule 2.2 has no counterpart in Rule 3.1.) The commentary explains why the standard is so demanding: to preserve “the probity which the public expects of the architectural profession,” architects are “not allowed under the circumstances described in the rule to disguise the fact that they are not speaking on the particular issue as an independent professional but as a professional engaged to act on behalf of a client” or with a judgment perhaps arising from the wrong sort of interest (a private interest rather than the public interest). The public is entitled to know that the architect might have a certain bias (or even that, from the public’s perspective, might seem to have a certain bias), a legitimate bias if it is disclosed but otherwise an illegitimate bias. If architects routinely made public statements in the service of clients without acknowledging that service or in the service of a private interest (however small) without acknowledging that service, their public statements would eventually lose the power that comes from their being thought to be independent. The public statements would be regarded as unreliable (as, indeed, they would be).

This rationale is as interesting for what it leaves out as for what it includes. Like most professions, architecture recognizes itself as having an obligation to serve the public interest (an obligation that may not belong in hard-edged rules but appears, for example, in Canon II of the AIA code). The NCARB commentary might therefore have appealed to this obligation in support of a rule governing public statements (protecting the public). Instead, the commentary appeals to the interest that the profession itself has in maintaining its reliability (“the probity the public expects”) both to explain and support the rule.

The NCARB rules just discussed are the hard-edged rules concerning conflict of interest that state registration boards use to decide whether to discipline a licensed architect. We turn now to the AIA’s code. Like AMA, the AIA is a voluntary organization. Also like AMA, it no longer is an organization to which a majority of the profession belongs. Yet, just as no AMA member wants AMA to discipline her or him, so no AIA member wants the AIA to discipline her or him. An AIA member charged with wrongdoing will generally hire a lawyer to present her or his side at the National Ethics Council (NEC) and, if the AIA member loses there, may seek redress in the courts. At least as much as physicians, architects live by their reputations. For that reason, an NEC-appointed hearing officer collects evidence and the full NEC (minus the hearing officer) decides the case in secret. However, for any serious discipline (censure, suspension, or expulsion), the ultimate deci sion is made public (the architect’s name disappears from the membership role, and the architect can no longer be listed as an AIA member). The NEC publishes its decision in the form of a judicial opinion, stating the facts found, the penalty, and the rationale for it, without identifying the parties. The NEC also issues interpretations of the code (Advisory Opinions).58

The AIA code (2007) is about half the length of NCARB’s and devotes proportionally much less space to conflict of interest. Canon III (Obligations to the Client) provides the overall framework for conflict of interest. AIA members should “exercise unprejudiced and unbiased judgment when performing all professional services” Ethical Standard 3.2 (titled Conflict of Interest) simply states the general strategy for avoiding tendencies to bias and prejudice. Members should “avoid conflicts of interest in their professional practices and fully disclose all unavoidable conflicts as they arise” There are only two disciplinary rules under this ethical standard. The second rule, Rule 3.202 (render decisions impartially), merely restates NCARB’s Rule 2.2 (with a briefer commentary), but the first rule, Rule 3.201, adds something new.

Rule 3.201 prohibits AIA members from rendering professional services if their “professional judgment could be affected by responsibilities to another project or person, or by [their own] interests” The only exception to this prohibition is (the usual) “unless all those who rely on the Member’s judgment consent after full disclosure” Rule 3.201 understands “interest” as including more than financial interest. Any “responsibility” to another project or person that could affect a member’s judgment is an interest for the purposes of this rule (as is any self-interest, even if it is not financial or familial). The commentary underscores the point. The rule is, it says, “intended to embrace the full range of situations that may present a Member with a conflict between his interests or responsibilities and the interests of others” The commentary goes on to give an equally wide reading of “all those who rely” Those entitled to disclosure “may include a client, owner, employee, contractor, or others who rely on or are affected by the Member’s professional judgment” An AIA member who cannot appropriately disclose a “conflict directly to the affected person must take steps to ensure that disclosure is made by another means” (Direct disclosure may not be possible because the client is, for example, an individual who is out of town or an organization whose officers are hard to reach; sending notice is not equivalent to “appropriate disclosure”) If a member cannot make adequate disclosure of a conflict of interest (directly or indirectly), he or she cannot render the professional services in question. The member must decline or withdraw.

In addition to the rules under Rule 3.2, there are at least two rules in Canon II (Obligations to the Public) that are (at least in part) concerned with conflict of interest. Rule 2.103 forbids an AIA member from serving in a public capacity to “accept payments or gifts which are intended to influence their judgment” This rule covers bribes (payments made in exchange for some future illegal service) but not kickbacks (a payment for a referral or some other favor already done). The rules cover more than bribes, for example, a dinner or a gift of theater tickets of whatever value given with the intention of influencing judgment. This additional coverage is what justifies discussion of this rule as concerned with conflict of interest.

This is another absolute rule. It is nonetheless unusual in one respect. It is the intention of the payer or giver, not its likely consequence or the recipient’s intention, that determines whether the payment or gift is prohibited. The rationale for this approach to payments and gifts is obvious. An architect serving in a public capacity will, in the ordinary course of life, receive many payments and gifts. Prohibiting them all would be unreasonable, but some should be prohibited. For example, no one wants to forbid a gift from the architect’s mother or brother-in-law that is part of the normal exchange of gifts among family members. (Such gifts would seldom be given with the intent of influencing the architect’s professional judgment.) In contrast, the AIA would, presumably, want to prohibit a gift from a potential developer hoping to reduce the hostility of an architect toward a project that he or she has in mind when that architect is a member of the local planning commission.

Rule 2.301 is concerned with public statements on architectural issues. It is (almost) identical to NCARB’s Rule 3.1. Although there is no commentary, its placement under the canon concerned with obligations to the public suggests that its rationale is a bit different. Architects perform a useful service whenever they inform the public of their judgments on architectural issues. They perform a useful service whether they speak disinterestedly or on behalf of a client or interest. However, the service performed is different. Rule 2.301 requires architects to make clear which service they are performing so that their audience, the public, can evaluate it using the appropriate criteria. The underlying rationale is not so much to protect independent judgment as it is not to mislead the public concerning what it may reasonably expect of the judgments offered. The public’s trust in what architects say depends in part on knowing who they are working for when they say it.