Legal Issues in Design and Construction

Legal Issues in Office Design and Construction

By Eric J. Ploumis, D.M.D., J.D., New York, NY

(The following is for information only. It does not represent legal advice. For advice in your legal matters, consult a licensed attorney.)

Key points:

  • It is your attorney’s job to explain to you every provision, clause and word of the contract as well as the ramifications of each contract you sign.
  • Find an attorney through referrals from satisfied orthodontist colleagues. Or, ask the local dental society for a list of attorneys used by members.
  • A good attorney is a bargain, not an expense. Most attorneys bill hourly. You should expect to pay $250 to $350 an hour, depending upon where you are located. Ask the attorney how many hours they expect the project to take.
  • There is no such thing as an innocent or meaningless clause or word in a contract. Each word in a contract is there for a specific meaning and will have specific consequences to you.
  • If you are considering purchasing undeveloped land or making any substantial changes to an existing property, get an opinion—in writing—from an attorney who knows the issues well.

Legal issues are an important consideration in office design and construction. A good lawyer will provide you with the necessary expertise and experience. Could you go at it alone without the advice and counsel of an attorney? Sure. But why take the risk? The investment we make in our office can make a big difference in our future success. Office construction and design is a complex project, one that we may undertake only once in our careers. Utilizing the services of an experienced team, including a good attorney, will help ensure you get it right the first time.

Your Attorney’s Role

The attorney you choose should be your advocate, confidant, negotiator, correspondent, translator and corner man. It is your attorney’s job to explain to you every provision, clause and word of the contract as well as the ramifications of each contract you sign.

When choosing an attorney, you not only want a brilliant mind, you also want experience, confidence and compatibility. A big-name corporate attorney may not know the issues involved in dental office design and construction. The cousin who offered to do you a favor may lack the specific skills to represent you well. An attorney referred by a neighbor may be great for your next divorce but inappropriate to evaluate your lease. You want someone who works well with you and with the other key members of your team of advisors. The difference between a misunderstanding and a dispute often turns on the personalities involved. Don’t choose an attorney who can’t see eye-to-eye with the accountant or who clashes with the contractor.

Office design and construction is an undertaking fraught with anxiety. You need an attorney who understands the significance your new office will have. It is not simply a place where we go to work; for many of us, we will spend more time in the office than at home. How we negotiate and manage the project will have a substantial impact on how we are able to provide for our families and our retirement. Even if it means going a little deeper into debt, this is not the stage to cut corners and achieve false economies. Hire the best, right down the line. The return on investment will be significant if you do.

Good legal counsel will help prevent you from getting bogged down in cost overruns, delays, hidden charges and extras. When issues come up during construction, all you have to fall back on is the well-negotiated contract. When your landlord presents you with a list of surcharges and assessments, you need to look to your lease and see how they were arrived at. When your finance company increases your interest rate, they are doing so according to the contract you signed. A good attorney will provide you with informed consent and will review with you the risks and benefits of signing any contract.

Finding an Attorney

How do you find a good attorney? The same way your patients find you. A referral is the best source, preferably from a satisfied colleague. Ask the local dental society for a list of attorneys who have been field tested by members. Ask other local attorneys if they can recommend someone to you. Trust your instincts.

Interview the attorney and ask him or her how many dentists are counted as clients. Ask for some references and call the references. During the interview, find out if the attorney considers your project as important as you do. The last thing you want is an attorney who thinks, “It is only a dental office, what’s the big deal.” To you, it is a huge deal, and your attorney should treat it as such. Get a sense of how responsive the attorney will be to your calls and questions. Will he or she take the time to explain the issues to you? Will he or she be patient and provide the handholding that is necessary when constructing a new office? The attorney you choose works for you and should be as responsive to your concerns as you are to your patients. 

What Should You Expect to Pay

A good attorney is a bargain, not an expense. Most attorneys bill hourly. You should expect to pay $250 to $350 an hour, depending upon where you are located. Ask the attorney how many hours they expect the project to take. An attorney who is experienced in this area can usually quote you a range, but the complexities of a deal can cause the estimate to vary widely. Consider asking for a cap on the fees, a not-to-exceed price. For legal tasks such as reviewing a basic commercial lease or closing on a price of property, a flat fee may be appropriate.

The usual protocol is for the attorney to send you written confirmation of the fees. You will often be asked for a retainer representing a portion of the hours the attorney expects to spend on your issues. Make sure that any unused portion of the retainer is refundable. This may happen if the deal doesn’t go forward. Expect to be billed periodically. Some attorneys will send you a detailed, itemized bill, others a less-detailed summary of the time spent. If you have agreed to a flat rate and the project gets more complicated than either party anticipated, it is not unreasonable to revisit the flat-rate fee. It should come as no surprise that paying your bill promptly will go a long way to ensure prompt responses and diligent attention.

Attorneys are selling you their expertise and they are compensated based upon time spent. Keep that in mind when you utilize their services. Stay on point when you call or meet with them. You are being billed by the minute and your minutes are being recorded. If you want to chat about things not related to the job, see if you can go off-the-clock. But keep in mind that every minute your attorney spends with you is a minute he or she cannot address the concerns of another client. Your attorney is your ally but not necessarily your friend. Although he or she may be a great person, yours is a business relationship, similar to the relationship you have with your patients.

Terminating the Attorney-Client Relationship

Like the doctor-patient relationship, the attorney-client relationship is usually terminated at the conclusion of a successful deal. You hire an attorney to represent your interests. Once he or she does so effectively, you pay for the services you contracted for and everyone is happy.

Occasionally, though, you may find it necessary to terminate your agreement with your attorney before the deal is completed. It is your right to do so but it should not be done lightly. Just as a patient who transfers to another orthodontist finds even the smoothest transfer problematic, you, too, will find transferring attorneys challenging. An attorney is obligated to make the transition as smooth as possible, but you will lose time and probably money as a result of the transfer. Try to work through the issues with your attorney and recognize that it is not always the attorney’s fault that things aren’t progressing as expected. If you really feel your attorney did not represent you well and breached the professional standard of care (yes, there is such a thing as legal ethics), every jurisdiction has a mechanism for filing a grievance against an attorney.

Contract Law Issues

Contract law is fundamental to our commercial society. Contracts are “promises that the law will enforce.” Some of the contracts we will be asked to sign when we consider a new office will include:

  • Purchasing land or real estate
  • Leasing office space
  • Financing agreements
  • Architectural services
  • Technology and IT service agreements
  • Construction services
  • Cabinetry design and construction
  • Interior design services
  • Purchasing or leasing equipment
  • Confidentiality agreements

Each of these contracts will be drafted to address specific and unique concerns. The same attorney may not be appropriate to review all of the contracts. You may require the services of a real estate attorney for the purchase of land, a building or a condominium. One attorney may be suitable to review and negotiate a lease, but when it comes time to review the architect’s or contractor’s contract, you may be better served with an attorney who is more familiar with the nuances of these types of agreements. An endodontist doesn’t straighten teeth; use the specialist who is best skilled for the task.

Contracts are not always straightforward, and the average orthodontist cannot possibly be expected to be versed in the nuances and strategies of contract writing and negotiating. The contract is most often written by the person offering the lands, goods or services (the offeror) and, not surprisingly, is drafted in his or her favor. A clever contract drafter will seed the contract with terms that the offeror is willing to concede in order to receive other concessions from you that are more important to the offeror. Your lawyer should decode the strategies of the other side and reveal them to you so that you can make an informed decision about the contract.

Everything is negotiable, but not after you sign the contract. Even on preprinted, boilerplate contracts, there is room to negotiate. Discuss the changes you want and have your attorney negotiate them. Make sure a responsible party for each side agrees to the additions or deletions and, at the least, initials and dates the change in the margin.

There is no such thing as an innocent or meaningless clause or word in a contract. Each word in a contract is there for a specific meaning and will have specific consequences to you. When interpreting a contract, courts look only to the words written within the four corners of the page to determine what the contract means. You are a highly-educated professional. A judge will not look favorably on your claim that you were misled or didn’t understand the agreement. Take your time and thoroughly review and discuss the contract with your attorney until you are comfortable signing it.

Contracts related to the construction and design of dental offices are not exceedingly complex as far as contracts go. They do, however, require a familiarity and understanding that comes with experience. Seek the advice of a lawyer who specializes in your concerns and issues.

Land Use and Zoning Issues

Land use and zoning laws demand a specialized, local knowledge. While a misstep in contract drafting or negotiations can result in added costs or delays, an error in interpreting land use or zoning statutes can derail an entire project. If you are considering purchasing undeveloped land or making any substantial changes to an existing property, get an opinion—in writing—from an attorney who knows the issues well.

While much of this advice can come from a licensed local architect, there are some issues, such as petitioning for a zoning variance, that an attorney well versed in local ordinances is uniquely suited to do. Most often, an attorney who is plugged in to the local administration and building department can provide you with the inside track. The size and style office you envision may not be consistent with what you can actually construct. Being unable to reconcile you dream with the cold reality of the zoning board can be devastating to both your wallet and your psyche.

Be a Good Client

When working with your attorney, work with your attorney. If you are scheduled to review a lease or document, make sure you have looked it over and prepared a list of questions you want answered. If you were supposed to provide your attorney with information, make sure you send it in a timely manner. Don’t be like the patient who never wears his headgear or elastics and wonders why the braces are still on.

Although not essential, having access to e-mail will greatly improve communications and the efficiency of document transfer and review. Even if you aren’t up-to-speed with handling documents and plans electronically, someone in you office is. Have them receive e-mails and print them out on your behalf. Use the internet to educate yourself on some of the issues. Check out the AAO website for updates to this on-line manual. Signing a contract with an architect? Go to the American Institute of Architects website (www.aia.org). Utilizing the design services of a company that specializes in orthodontic office design? Google “orthodontic office design” and check out design firms. Go on an ortho chat room and compare notes with colleagues who have been through the process. Share what you found with your attorney and see if useful advice can be incorporated into your contract.

Don’t create too tight a timetable for your project. No matter how diligent your attorney is, he or she has to deal with a number of other parties who may not be as committed to you. Mistakes and omission occur when everything is rushed. If you are anticipating major office construction, begin years in advance. Don’t wait until you have six months left on your lease to get in high gear. The pressure of an about-to-expire lease will compel you to accept terms and conditions that, under less pressured circumstances, you would not agree to.

Accept that, sometimes, your attorney has a weak hand to play. You may have a wish list of must-have terms. So does the person you are negotiating with. You cannot have everything on your list. You may dream of building your own personal Taj Mahal, but even on an unlimited budget, compromises must be made.

Summary

It is simply not practical in a short treatise to review all of the specific legal issues you will encounter when you consider an office construction of design project. It would be like trying to learn orthodontics from reading a book. What I have tried to give you is a conceptual framework to utilize the services of an attorney wisely.

You know the broad issues and concerns. If it is helpful, show your attorney this article to make him or her aware of what you expect. Office design and construction is a team effort. In many ways your attorney is the quarterback of the team. Choose someone who can lead your team well.