by Judy Busch

Multi-jurisdictional practice—practicing in states other than “home base”—presents specific risk concerns to the architect. Because laws governing professional practice vary among jurisdictions, it is wise to determine well in advance of even handing out your first business card what you can and cannot do in another U.S. state or territory.

Corporations routinely practicing in many states often have in-house staff or legal departments that handle these issues, leaving the architects free to design. Nonetheless, especially if you lack this in-house support, knowing where some of the more common risks lie will help you develop a logical approach to sorting out correctly the many components that must be addressed before expanding your practice. Two main areas in need of attention are proper licensing of architects and proper registration of the firm in each state.

Licensure and registration
Is the architect who is/will be in “responsible charge” or the “responsible party” licensed to practice in the state in which the project is located?
Before an architect can propose to take on a project, personal licensing must exist in the proposed jurisdiction. Otherwise, he or she is misrepresenting professional standing. In several states, statutes require a license before one may use the title “architect” in their marketing. This includes distributing business cards in any manner suggesting entitlement to practice in that state. (1)

There are a number of ways an architect licensed in one jurisdiction can legally practice in another jurisdiction short of sitting for the ARE there.

• Reciprocity between states with similar regulations and testing procedures can provide an easy path to licensure. NCARB registration can also aid. Once you are registered, the council will provide certain documentation to accompany your individual application for licensure.
• Temporary licensure may be an option for a project that arises too quickly to permit time to obtain a permanent license in the project jurisdiction. Several states permit an architect to apply for a license that is limited by project and time. Again, each state has its own specific requirements.
• Scope of practice may preclude the need for licensure. State statutes spell out situations in which a license is or is not needed. For example, giving expert testimony on a project that you did not design or supervise does not require a license in most states. But feasibility studies and offers to practice do. Planning and designing a structure according to architectural principles is the clear case. However, in some states, the “mere gathering of data for design” to proceed with a project is also “architecture.” (2)
• Exceptions to licensure may include establishing an association with a local licensed architect who maintains complete and active control of the project. (3)

In all cases, it’s best to explore state statutes to determine if a license is needed for the work to be done.

An entity, whether a limited liability, business, or professional corporation calls its jurisdictional state the one in which incorporation occurs. This is usually the state in which your business is located or a state with more favorable tax laws. Limited liability partnerships or limited partnerships follow the same process. All must register in the state in which a project will take place. This requires selecting a “registered agent” in each state.

The registered agent, usually a company that specializes in this task, is positioned to accept service of process or other documents that involve activity in that state. They serve in the absence of your having a local address. The state uses this means to assure its citizens are protected within the scope of that state’s laws. The architect should secure registration before visiting the state to begin the project. Once a contract is signed, visiting the state is considered “setting foot” in that jurisdiction, which requires registration.

Often, state registration can be turned around in 24 to 48 hours after application submission. Several national companies specialize in serving as registered agents, assist in submitting applications to the state, and help with recordkeeping. In many cases, renewal documents are sent by the state to you through the registered agent. Other states mail directly to the firm.

All state architect agencies can be found on the Web. Although all states require individual licensure to practice, not all states require company registration. In some cases, a company may form another corporation to meet the state regulatory profile. It’s wise to check state requirements before a proposal is submitted to a client. The time it takes to acquire a certificate of authority in each state varies depending upon how frequently the board meets to review applications.

Most states require registration before a proposal can even be presented to a client. The mere offer to perform architecture constitutes “doing business” and requires personal licensure and corporate registration. Pennsylvania is among the few state exceptions to the rule. (4)

Each board usually requires an annual renewal fee. Keep a tickler file so timely renewals can be maintained. When a board registration lapses while a project is ongoing in the state, the corporation may be fined and pay a fee to reinstate. Moreover, the individual architect could be sanctioned. And that record of noncompliance may make it difficult to obtain licensure in another state later. It is the duty of the individual to affirm that the firm’s registrations are current before practicing in a new jurisdiction.

Issues during the contract process and performance
In formation of the project, be ready to list firm registration numbers and personal licensure in state(s) involved in the contract.
Often a client will require documentation of current registration to reduce risk of a limited defense in the case of a lawsuit.

Be careful that employees don’t misrepresent themselves.

• Business cards should only carry the architect’s professional status, if any, for the state in which the business is located. To present that card in another state risks the assumption licensure exists in unlicensed jurisdictions. Make clear, orally and in writing, where you are licensed to practice.
• Stationery should not contain printed licenses or numbers. However, in the signature, the architect can state his or her title.
• In sealing/stamping documents incorporate license numbers. Often a signature is required beside or across the seal. That documents the ability to practice in the state in which the project is being conducted. It also documents the direct supervision of the document contents being stamped.
• “Plan stamping” is a misuse of the seal or signature. It is illegal for an architect to stamp plans for an unlicensed individual when that architect has not directly supervised the plans. You cannot adopt another’s work. In one case, the licensed architect was placed on probation for two years for affixing his seal to another’s plans. (5)
• Signing documents on site by anyone other than the licensed architect can lead to misrepresentation and legal implications.
• “Project architect” or “field architect” are terms that should only be used if that person is duly licensed in the project state. In longstanding Wisconsin case law, the use of business titles has been forbidden unless the business or appropriate agent is licensed to practice. (6)

Further, be mindful that state laws change. Always check to ensure exceptions to the rule still exist. Links to state rules and laws can be found on state board of architects Web sites.

Who is affected?
The process is part of managing risk for both the architect and the firm.

Out-of-state architect: For the out-of-state architect, practicing without a license in another jurisdiction dilutes a defense—for the client, architecture firm, and individual involved—if a lawsuit should arise. Knowingly practicing without a license can be a criminal offense. (7) In most states, practicing without a license or holding oneself out as an architect is a misdemeanor. Negligent practice with an expired license, while not necessarily a criminal act, can produce an administrative fine. (8) (9)
Misuse of signature and seal is subject to legal and administrative disciplinary action. (10) (11)

Individual: The individual practicing without a valid license can be sanctioned by the state board, which, again, will affect an attempt to obtain licensure in any other state. In a California case, an architect’s license was revoked for previous misconduct in another state. (12) A Wyoming court suspended the license of an architect, licensed in 50 states, following a conviction of “plan stamping” in Kentucky. (13)

The umbrella protection of the firm is removed when an architect is not practicing according to state requirements. Therefore, the architect can be personally liable to the firm and/or plaintiff.

An individual practicing without a valid license can lose fees through court sanction—the remedy for the plaintiff—to prevent the defendant from reaping rewards from an illegal act. (14) When misrepresentation of licensure is the issue, the contract could be ruled void, preventing the architect from collecting fees. (15)

Firm: For the firm, failure to register with the state board of architects when required to do so can result in sanctions by the state board. For the corporation, which is also considered by law as “a person,” these sanctions can be the same as stated above for the individual. In any case, a fine will be imposed.

Failure to register the firm also places its architects’ licenses in jeopardy. The architect is more severely sanctioned, which, too, will follow him or her from state to state.

Not registering in the project state also weakens the firm’s defense in a lawsuit. A plaintiff’s attorney will search for improper registration and ask the court to interpret it as a failure to abide by state laws, codes, or regulations. The result can be court denial of payment for services to prevent illegal gain. (16)

Two final related issues
Lack of preparation could equate to loss of potential income. Even national firms with multiple offices could potentially pursue projects and unknowingly misrepresent themselves as being qualified to practice architecture in a state where they are not legally eligible. Good communication among offices, timely record keeping, and information available to all helps prevent such problems.

License/registration lapses caused by departure of employees can affect the firm. Some states require notification of a departure of a “responsible party/agent” within 10 days. Illinois also requires the party to be replaced within 30 days. If no replacement information is forthcoming, a state can drop registration. Requesting reinstatement is an avoidable additional expense of doing business.

Using a checklist, keeping timely records, and obtaining licenses and firm registration in all states where you want to practice will reduce the risk of inappropriate practice. The process is expensive—but less costly than fines, sanctions, damage to professional and corporate reputations, or exposure to potential lawsuits.

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