It is a good idea to have a clause in your contract that defines the standard of care, for example: “In providing services under this Agreement, the Consultant will endeavor to perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practising under similar circumstances.” It is important to ensure that the other party does not attempt to include a higher standard, which may be interpreted as a warranty.
Some clients may attempt to raise the standard of care beyond what is reasonable. For example, by including contract language that requires you to “perform to the highest standard of practice”, or guaranteeing to perform services in a “non-negligent manner”, the client is attempting to make the consultant responsible for every mistake, however reasonable in the circumstances. This would exceed the best professional standards established by any professional licensing body. Consultants should negotiate to remove such language.
- The standard of care in a professional consulting agreement should be ‘reasonable’, and not so onerous as to constitute an unrealistic warranty of performance.