In 2017, the California Legislature passed SB 496 (Cannella), amending Civil Code Section 2782.8 to protect design professionals—architects, engineers, and others—from unfair indemnity and defense obligations in public contracts. The law clearly states that a design professional’s duty to defend a client cannot exceed their proportionate share of fault, and that this protection cannot be waived or altered by contract.

Despite this, many public agencies and clients continue to use outdated or noncompliant indemnification clauses that require architects to pay for the client’s defense costs upfront, before any determination of fault. These provisions violate both the letter and the intent of Section 2782.8, placing an unreasonable financial burden on firms—especially small, emerging, and minority- or women-owned businesses.

AIA California has developed the “Duty to Defend” letter to help firms educate clients and negotiate fair, legally compliant agreements. This memo explains the law, why certain contract language is unenforceable, and how such provisions can lead to higher costs, reduced competition, and increased project risk.

How to Use This Letter

• Firm Use: Firms are encouraged to submit the memo directly to clients when negotiating contract terms that include defense obligations inconsistent with state law.
• AIA CA Assistance: Firms may also request that AIA California submit the letter on their behalf, reinforcing the industry-wide importance of fair contracting practices and adherence to California law.

The goal is to foster collaborative relationships between clients and design professionals—rooted in fairness, compliance, and shared responsibility.

📄 Download the Duty to Defend Memorandum (.doc)
📬 Request AIA California to Submit on Your Behalf

Talking Points for Contract Negotiations

Use the following key points when discussing indemnification and duty-to-defend language with clients:

1. State Law Limits Defense Obligations
   • Under Civil Code §2782.8, design professionals can only be required to defend a client to the extent of their proportionate share of fault.
   • Any clause requiring defense before fault is determined violates California law.
2. Professional Liability Insurance Does Not Cover Defense of Others
   • Professional liability policies exclude contractual defense obligations on behalf of others (e.g., clients).
   • This means defense costs for a client would have to come directly out of the architect’s pocket, creating undue financial exposure.
3. Fair Contracts Support Competition and Equity
   • Unenforceable indemnity clauses raise costs and exclude smaller, emerging, and diverse firms from competing.
   • Compliance ensures a more inclusive and competitive marketplace for public projects.
4. Shared Responsibility Is Best Practice
   • The intent of SB 496 is that each party bears the cost of its own defense, with costs reconciled after determination of fault.
   • This approach promotes fairness and discourages unnecessary disputes.