Ohio’s Bright-Line on Contract Drafting by Nonlawyers in Construction Projects

On many projects, owners and project teams are under intense pressure to keep procurement moving and to meet deadlines. Sometimes an architect, construction manager, or owner’s representative offers to “draft the contract,” “clean up the AIA form,” or “prepare procurement documents.” Under Ohio law, that well-intentioned help can cross a clear legal line and result in significant consequences for everyone involved. Owners should insist that construction contracts and procurement documents be drafted and revised by the owner’s counsel, with project professionals limited to technical and administrative coordination.

Ohio defines the practice of law broadly to include not only courtroom work, but also legal advice and the preparation of legal instruments and contracts that secure legal rights. See Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23 (1934). The Ohio Supreme Court has consistently held that:

It is the unauthorized practice of law for a non-lawyer to draft or write a contract or other legal instrument on behalf of another that is intended to create a legally binding relationship . . . , even if the contract is copied from a form book or was previously prepared by a lawyer.

Ohio State Bar Ass'n v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., 112 Ohio St.3d 107 (2006).

Where Design Services End and Legal Drafting Begins

In construction projects, the distinction between appropriate design services and legal services is clear. The practice of architecture includes "the designing of, or the furnishing of the plans or specifications for, a building for another . . . ." Elephant Lumber Co. v. Johnson, 120 Ohio App. 266 (1964). Thus, under Ohio law, an architect is authorized to provide professional services that include the technical design and the preparation of plans and specifications for construction (or the Construction Documents).

This division is reflected in standard project delivery documents. AIA B101 Section 3.4.1 provides that the architect shall prepare construction documents consisting of drawings and specifications. AIA B101 Section 3.4.3, however, limits the role of architects, providing that the architect shall assist the owner in the development and preparation of bidding documents, forms of agreement between owner and contractor, and conditions of the contractor. These are legal instruments that should be drafted and reviewed by the owner’s construction counsel, with the architect’s role limited to administrative and procedural aspects.

It is critical for owners, architects, construction managers, and owner’s representatives to understand that under Ohio law using an AIA, AGC, DBIA, OFCC, EJCDC, or other industry standard form to prepare the agreement between the owner and contractor is contract drafting “for the benefit of another,” which is the practice of law. Burdzinski, 112 Ohio St.3d 107 (2006).

Importantly, AIA template documents contain a prominent notice cautioning that the document has important legal consequences and encouraging consultation with an attorney regarding its completion or modification. EJCDC templates include a similar warning, highlighting that the documents have important legal consequences, encouraging consultation with an attorney regarding their use or modification. Those warnings are an explicit reminder that template forms still allocate risk, define legal rights and remedies, and can create serious exposure if non-lawyers complete or modify these documents. In addition, there is an inherent conflict of interest when an architect (or construction manager or owner’s representative) drafts or revises contracts for the owner, because if a dispute arises, the same provisions being selected and edited often govern that professional’s own duties, defenses, and exposure (for example, provisions addressing submittal review and approval language, claims and notice procedures, reliance on the Construction Documents, dispute resolution, and other risk-allocation terms). In other words, the professional is drafting contract language that may later be used to defend the professional, not necessarily to protect the owner. Should a dispute arise, this invites a second, avoidable fight: allegations that the professional crossed into the unauthorized practice of law, and allegations that the professional wrote self-protective terms under the guise of helping the owner.

This Applies to Construction Managers and Owner’s Reps Too

The law described above extends to construction managers and owner’s representatives as well. Two common risk areas are change orders, which are simply modifications to the contract, and mechanics’ liens, which involve a highly technical statutory process that can have serious legal ramifications if mishandled. Construction managers and owner’s representatives play an important role on projects, but in these situations, it is prudent to coordinate with the owner’s counsel to avoid crossing into the unauthorized practice of law.

Consequences of Unauthorized Contract Drafting

The penalties for an architect, construction manager, or owner’s representative who drafts or revises a construction contract or procurement document for an owner without attorney review can be significant. The Ohio Supreme Court can issue injunctions and impose monetary fines of up to $10,000 per offense. Ohio Gov. Bar. Rule VII(14)(B). See Ohio State Bar Assn. v. Miller, 138 Ohio St.3d 203 (2014). The drafter also may be unable to collect fees for preparing the document in the event the owner fails or refuses to pay for the services rendered because the court may simply decline to enforce an agreement that is tied to unlawful conduct. See Collacott Realty, Inc. v. Homuth, 1939 Ohio Misc. LEXIS 1181 (a decision of the Cleveland Municipal Court). Most importantly, if a negligence action is brought by the owner based on a faulty contract provision, the drafter’s professional liability insurance carrier will have an excellent argument that coverage is not available for the Claim, leaving both the owner and the project professional exposed. Finally, unauthorized practice of law proceedings are public, and reported Ohio Supreme Court decisions are easily searchable, which can create serious reputational consequences.

Consequences for Public Owners

The potential penalties for public owners that rely on procurements administered by, and contracts drafted by, non-lawyers can be significant. While architects, construction managers, and owner’s representatives are highly skilled within their respective disciplines, they are not engaged in the practice of law and are generally not tracking ongoing statutory changes to public procurement requirements or monitoring mandatory contract provisions.

The practical reality is that public construction statutes and related regulatory requirements evolve regularly. When procurements are structured or administered without careful attention to current statutory mandates, the result may be a process that does not strictly comply with applicable law. Even technical deviations can trigger audit scrutiny, formal findings, project delays, bid protests, or challenges to contract validity.

The same risk exists in contract drafting. Well-intentioned non-legal professionals may inadvertently omit required statutory provisions or include terms that conflict with public law limitations. Such deficiencies can expose the public entity to avoidable financial risk, impair enforceability, and create compliance issues that invite audit findings. In certain circumstances, administrators may also face heightened scrutiny or potential personal exposure for approving contracts that do not conform to statutory requirements.

Importantly, this risk is not eliminated simply because the architect, construction manager, or owner’s representative has in-house counsel. That attorney works for and represents the interests of their employer—not the public owner. The public entity’s legal obligations, statutory constraints, and risk profile are distinct and require independent legal review.

In short, for public owners, the risk associated with proceeding without dedicated legal guidance in procurement and contract drafting is substantial, while the marginal cost savings are often minimal by comparison. Engaging counsel familiar with public construction law is not merely a defensive measure—it is a prudent risk-management practice that protects the entity, its administrators, and the integrity of the procurement process itself.

Key Takeaways

Owners should decline any offer from an architect, construction manager, or owner’s representatives to draft, revise, or prepare construction contracts or procurement documents, even when the starting point is a “standard form.”

Architects, construction managers, and owner’s representatives should not offer these services, should limit their role to technical documents and administrative coordination, and should always coordinate with the owner’s construction counsel.