Professionalism and Clients Interests - Essay Example

Professionalism and Client’s Interests Professionalism is the embodiment of an honest, respectable and conscientious worker which includes high ethical conduct in an individual’s dealings with his clients and the public, his interaction with his peers and in the performance of ones duties and responsibilities. Professionalism commands entire devotion and commitment to his client’s cause to protect such client’s interest but it must be done within the bounds of the law and good morals to serve a more paramount duty—to safeguard the welfare of the public in general. There should be no interest that is higher than the public’s interest. All acts must endeavour to promote the common good, serve public interest and protect the public welfare. While the ethical mandate of any profession is to ensure that these laws are obeyed with fealty at all times and its provisions are adhered to the letter with utmost respect. The professional is required to assist his client to the best of his mental acuity by employing all means which are legally and morally feasible. It is the moral duty of the professional to provide advice to advance the interest of his client but equally bound to dissuade his client from the performance of an act should the public’s interest be put in jeopardy. One profession which is imbued with public interest is that of Chartered Surveyors who owe allegiance not only to their clients but likewise owe an inviolate duty to the public in the highest degree. While governed by the Royal Institution of Chartered Surveyors (RICS), a professional body, Chartered Surveyors are expected to adhere to a strict code of conduct, set of practices and standards that will protect not only the interest of their clients but also the public as well. Chartered Surveyors have the contractual obligation to meet the demands and expectations of their clients as stipulated in their engagement contract provided however that these demands and expectations are within the ambit of the law. Should conflict ensue, the chartered surveyor’s duty does not end with a recommendation of appropriate measures to his client to abide with the dictates of the law and implement processes to correct or rectify any variance, delinquency or transgression. The chartered surveyor is likewise mandated by RICS’ code of conduct to ensure that the correct resolution as provided for by the provisions of the law is followed according to the letter of law, rules and regulations. The fiduciary obligation of chartered surveyors to their clients is that all the recommendations and findings that the surveyor will make are in accordance and congruent with the letter of the law. The chartered surveyor should be the advocate of the code of conduct of his profession as he adheres to these standards, it follows that his actions are strictly guided by the regime of his profession as well as his own moral beliefs and principles. Although the chartered surveyor has an obligation to his client, such responsibility is secondary to the duty of the chartered surveyor to the public’s welfare. The chartered surveyor’s primary goal should also include the maintenance of the integrity of his industry and ensure that the norms enunciated in the code of conduct are obeyed with utmost fidelity. The professional’s best service to his client is to translate such requirements in accordance with governing laws, implementing rules and regulation. Obligations and Contracts Surveying is one of the professional services that can be procured through a regular engagement contract with a certified or chartered surveyor. As in other contracts, a contract to engage the services of a chartered surveyor shall include the scope and terms of reference of the services covered. This contract shall govern the relationship of the chartered contractor and the client. The terms of reference shall list all of the services, duties and responsibilities that the chartered surveyor needs to perform within the specified period which shall include but not limited to the following: valuation or investment advice or even property management sometimes it may even involve estate agency services. Chartered Surveyors are often called upon to offer advice to their client in matters relating to valuation of property, Cadastral or Land Surveys, Energy Performance Certifications, Auctions, boundary disputes, business rates, party, shared or common walls and compulsory purchases or expropriation cases. As earlier stipulated, the contractual obligations of Chartered Surveyors to their clients are stipulated in their contract and any breach thereof can be enforce in appropriate proceedings either to compel performance or rescind the contract with concomitant damages. However if the service contracts shall contain provisions which are contrary to law, public policy and good morals, the said contract is void from the beginning thus it cannot be given valid and legal effect. And, although the specific provisions of the law, rules and regulations are not explicitly stated in the contract, they are deemed part and parcel of the contract by virtue of the doctrine of incorporation. RICS itself mandate that the surveyor serve and be the advocate of their client’s interest. However, Chartered Surveyor also has responsibility to the general welfare and interest of the public. Thus, the fiduciary obligation of Chartered Surveyors in adhering to the stipulations of their service contract is that the process in which they provide the services should follow the acceptable standards enunciated by their profession. To put this statement in operational terms, the Chartered Surveyor should be able to defend his valuations, the conduct of his service and the manner it was carried out to his peers. Under the code of conduct for chartered surveyors in the United Kingdom, surveyors are mandated to look after their client’s welfare. This would include ensuring that their client gets the best deal possible for his property. However, in instances that the interests of the client run contrary to the interest of the public in general, the conflict should first be harmonized or reconciled. If nonetheless the conflict persists despite diligent efforts to reconcile the same, it must be resolved in favour of the higher interest of the public and by using the processes and standards including the guidance of the code of conduct of the Royal Institution of Chartered Surveyors. Indeed, in a perfect world, the chartered surveyor must be able to strike a balance between the interest of his client as well as the public in general. Thus, in extreme instances when a surveyor would have to choose between the interest of his client and the public, the chartered surveyor will be constrained to put the interest of the public first and his client second. As it is shown, the chartered surveyor must serve the client with utmost dedication but he must not sacrifice his higher duty to serve the public. Most often, Chartered Surveyors are likewise called upon to testify in court as expert witnesses. It may concern the valuation of property that would lead to the determination of liabilities and damages due or accruing to litigants—it would be his duty to be impartial, objective and not be inclined to support any litigant. Chartered Surveyors are equally made to testify against their own peers to dispute or impugn the findings due to the differences in the valuation that have been made. The value itself is normally not put in question but the manner it was procured or determined is often the point of contention. Errant Chartered Surveyors are therefore often called to defend their actions and the process they have employed to arrive at the value but not the value itself. In this instance, what is challenged is the credibility or professionalism of the chartered surveyor. Professionalism dictates that services must be performed to promote the interest of the client but without sacrificing the integrity or veracity of a chartered surveyor’s findings. Any leanings shown would cast a doubt on the findings as well as cast aspersion on his person and reputation thus in order to serve a more superior interest, the chartered surveyor must not be compromised in any manner. Only then that he can regain his stature and credibility where the value or report provided by him will be given credence. And, only when the actions or the process by which the findings are arrived upon is adjudged credible will it be acceptable to the court or public. In case an action is instituted by a client against a chartered surveyor, the administrative adjudication shall refer only to his suitability to continue his membership with RICS. It does not involve any criminal prosecution or civil suit for torts and damages. Thus, the process in which an errant Chartered Surveyor will be stripped of his license or right to conduct survey or any criminal or civil liability is subject to legal action that would require the intervention, adjudication and disposition of the regular courts. RICS by itself does not grant licenses to surveyors but merely provide trainings and certification of skills that will is recognized where RICS are operating. Its import is only to signify that the chartered surveyor’s competence to perform a certain service. This would serve as a notice to the client the skills and fitness of the chartered surveyor to perform a particular task. And, by implementing this certification process, the sense of professionalism of the chartered surveyor is enhanced and it is not only the client’s interest that is protected but the general public as well since only competent and skilled chartered surveyors may be allowed to practice. Torts and Liabilities We shall discuss in this section the exposures and possible liabilities of Chartered Surveyors and also the role of Chartered Surveyors in tort cases to support assertions. As professionals providing service Chartered Surveyors can be sued for their alleged errors of commission and omission. In the same manner being experts in the field of valuation and surveys they are often called to testify to render an expert opinion. Torts or the threat thereof hangs like a Damocles Sword hovering over the heads of chartered surveyors. Thus, it is stressed here that at all times Chartered Surveyors should conduct themselves within the highest form of standards. Their findings and recommendations should always be supported by empirical data and also publicly verifiable information that is accepted by governing bodies that has jurisdiction over the property. Due diligence in the conduct of the survey as well as a properly referenced and verifiable findings is the main onus of any Chartered Surveyors in transacting with their client. It should be noted that Chartered Surveyors are bound by the doctrines laid down in the following cases. Standard of Care as enunciated in Bolam v Frierm Barnet Hospital Management Committee (1957), require that a professional will not be found negligent for using a particular method where this method is accepted by a responsible body such as the Royal Institution of Chartered Surveyors. In Zubaida v Hargreaves (1995), the court ruled that valuation is not an exact science, but a matter of opinion on which different valuers may reach different conclusions. It was further provided that if the method of valuation is accepted by a responsible body of professional opinion, a valuer will not be found negligent simply because the method is not the best available. The court equally found that a valuer is not negligent even though the valuation turns out to be wrong. In Bolitho v City and Hackney Health Authority (1997), the court held that the Bolam test is still applicable provided that the court must be satisfied that an expert witness’ view was reasonable as it is weighed up the risks and benefits of a particular practice. The court stated that “in most cases, the fact that a professional expert held a particular view demonstrated its reasonableness and that the courts would only reject it as unreasonable in very rare cases. Where there have been recent changes in professional knowledge the defendants’ standard of care is judged according to the standard accepted in their field at the time they acted” (Roe v Minister of Health (1954), Maguire v Harland and Wolff plc (2005), and N v UK Medical Research Council (1996)). In Bolam, it was established that where defendants are exercising a particular skill, they must do so according to the standard of a reasonably competent person at the same level within their field. No account is taken of the defendant’s actual length of experience at that level. In Djemal v Bexley Health Authority (1995) the defendant was a casualty doctor who had just been promoted to senior houseman. The court held that the standard of care to be expected of him was that of a senior houseman, and the amount of time he had been in that role was not relevant. The role of Chartered Surveyors in legal proceedings is to provide its expertise as impartial as he can be. He must maintain neutrality to lend credence to his expert testimony. Nothing less is expected from him. Conflict and Challenges A professional has three operating onuses they are—to safeguard public interest for the common good, to protect the interest of his clients, and to maintain the integrity of his profession. All three are not mutually exclusive they are, in fact, should be congruent with each other. Conflict ensues when a client insists on his version that would put his interest ahead to the detriment of the public’s interest. To illustrate: In assessing the value of a property that will be sold to a third party, a client may insist the highest possible valuation. While on the opposite end of the spectrum is a client who may insist on a lower valuation as he is the one purchasing the property. In other cases, an adverse structural finding in a property would result to a lower valuation. A client insisting on a higher valuation would demand that the structural finding be modified or deleted from the assessment to conceal the adverse findings. If a building will be used eventually notwithstanding the structural finding, an accident that could cause the life and limb of people is not impossible. From the standpoint of the client, the chartered surveyor served his interest well but in this instance, it is clearly illustrated that the public’s interest is sacrificed. Conclusion The regime of ethics in any profession is driven by its desire to keep the integrity of the industry it serves and to be held in the highest esteem possible. This edict is not only for the industry’s own survival but also for the profession’s continued relevance in the industry it belongs to. For surveyors, their responsibility is to ensure that the valuation, dimension and other pertinent information such as structural reliability, structural history, environmental data and other pertinent information that affects the property is provided to its client. The integrity of the surveys conducted by professional surveyors should not only be backed by empirical data but it should also be founded on reliable and solid publicly available information. It is stressed that chartered surveyor while being hired and contracted to perform specific tasks, their onus is not to be the advocate of the person who hired them but rather their primary responsibility is to ensure that the application of the laws including its rules and regulation is applied uniformly and obeyed with utmost respect. While their obligation as could be stipulated in their contract would be to apply the law and see to it that the party who hired them be given the maximum benefit of what the provisions of the law can give them. The importance of surveys in real estate transaction is to make all parties aware of all relevant facts about a piece of property and provide an accurate valuation of the property base on generally accepted standards prevailing at that time. It should not favour one party to the damage or injury of another. The surveyor’s report should endeavour to provide the baseline for all negotiations as well as possible usage of the property that will further enhance its value. Problems arise when surveyors put the interest of their clients before the interest of the general public and consequently its welfare. Probably motivated by self-interest if not overzealousness in advocating their clients, surveyors at times overlook the basic tenets of its significance in the whole real estate processes. When this happen surveyors not only expose themselves to tort actions and its attendant liabilities they also limit the options of the very people that hired him. In conclusion, it is stated that the chartered surveyor must always act with integrity and honesty and he must not consent to perpetuate a wrong but rather he must be an instrument to promote the interest of the public in general. If the chartered surveyor will not allow himself to be used to commit a wrongful act, then the public interest will not be put in jeopardy. Rather the rights and interest of the client and the public will be served well. Also, professionalism does not entail the satisfaction of every whim and caprice of the client but professionalism is measured by the integrity and moral uprightness of the professional in serving his client and the public in general. Bibliography Royal Institution of Chartered Surveyors (RICS) Bolam v Frierm Barnet Hospital Management Committee 1 WLR 582 High Court 1957 Bolitho v City and Hackney Health Authority 4 All ER 771 High Court 1997 Djemal v. Bexley Health Authority 6 Med LR 269 High Court 1995 Maguire v Harland and Wolff plc EWHC 577(QB) Court of Appeals 2005 N v UK Medical Research Council High Court 1996 Roe v Minister of Health 2 All ER 131 Court of Appeals 1954 Zubaida v Hargreaves 1 EGLR 127 Royal 1995 Read More