This is the June 2023 edition of our monthly series of Ethics case studies titled What Do You Think? This series is comprised of case studies from NSPE archives, involving both real and hypothetical matters submitted by engineers, public officials and members of the public.
Your peers and the NSPE Board of Ethical Review have reviewed the facts of the case as shown below. And, here are the results.
Your opinion has been registered for the June 2023 edition of our monthly series of Ethics case studies titled What Do You Think?
Your vote is recorded as:
Want to know how your peers voted? We’ll send you an email with the poll results on June 27.
Your opinion has been registered for the June 2023 edition of our monthly series of Ethics case studies titled What Do You Think?
Your vote is recorded as:
Want to know how your peers voted? We’ll send you an email with the poll results on June 27.
A Review of the Facts
Engineer Mike is a forensic engineer. He is hired as a consultant by Attorney Nancy to provide an engineering and safety analysis report and courtroom testimony in support of a plaintiff in a personal injury case. Following Mike’s review and analysis, Mike determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff because the results of the report would have to suggest that the plaintiff and not the defendant was at fault in the case. Mike’s services are terminated and his fee is paid in full.
Thereafter, Attorney Jay, representing the defendant in the case, learns of the circumstances relating to Mike’s unwillingness to provide a report in support of Nancy’s case and seeks to retain Mike to provide an independent and separate engineering and safety analysis report. Mike agrees to provide the report.
What Do You Think?
Was it ethical for Mike to agree to provide a separate engineering and safety analysis report?
Here is the result of our survey of your peers:
Applicable NSPE Code References:
II.1.c
Engineers shall not reveal facts, data, or information without the prior consent of the client or employer except as authorized or required by law or this Code.II.3.a
Engineers shall be objective and truthful in professional reports, statements, or testimony. They shall include all relevant and pertinent information in such reports, statements, or testimony, which should bear the date indicating when it was current.II.4.b
Engineers shall not accept compensation, financial or otherwise, from more than one party for services on the same project, or for services pertaining to the same project, unless the circumstances are fully disclosed and agreed to by all interested parties.III.4.b
Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained particular specialized knowledge on behalf of a former client or employer.
Discussion
The facts of this case raise a number of issues pertinent to various provisions of the Code of Ethics.
The mere fact that Mike ceased performing services for Nancy would not be an adequate solution to the ethical dilemma at hand. Nor is the fact that Mike has agreed to provide a “separate and independent engineering and safety analysis report.” On the former point, the fact that Mike ceased performing services for Nancy does not mitigate the fact that Mike throughout his first analysis had access to information, documents, etc., that were made available to him by the plaintiff and plaintiff’s attorney in a cooperative and mutually beneficial manner. This Board cannot accept the proposition that following the termination of his relationship with attorney for plaintiff he would “blot all” of that information from his mind and start from “square one” in performing his engineering and safety analysis report.
Nor do we believe that latter point that Mike would be capable of providing a “separate and independent” report for the defendant in this case. (See also Code II.4.b.) It is clear from the facts that the real reason for the defendant’s attorney’s hiring Mike was that he believed Mike would provide a report that would be favorable. Mike had to have been aware of the reasons why his services were being retained by virtue of the sequence of events. Even if Mike was so naive as to believe that Jay was unaware of the circumstances of his termination, we believe that this would not excuse his actions. Code III.4.b. is clear in this regard. At a bare minimum, Mike should have fully discussed the issue with Nancy.
It may be argued that Mike’s loyalties under these facts were not divided because he had terminated his relationship with plaintiff’s attorney. However, we must recognize that while Mike may not currently have a professional relationship with a former client, he still has an ethical obligation to that client to protect certain confidential information and facts, as well as a certain duty of trust and loyalty. How long that duty of trust and loyalty must be maintained we are not prepared to state at this time. However, we are certainly willing to state that such a duty exists for the duration of one legal proceeding.
Finally, with regard to the duty of the engineer to be objective in his professional reports and statements ( Code II.3.a.), we note that it has sometimes been suggested that engineers who act as paid expert witnesses have an inherent conflict between their duty to tell the truth and their obligation to perform their services consistent with the best interests of the client. We note that in this case, Mike developed an analysis report that was inconsistent with the legal interests of the client.
Under the facts, Mike did not act in the role as a “hired gun,” seeking to testify in favor of the client who was paying his fee. We make this point to underscore the importance of forensic engineers “calling them as they see them.” Had Mike ceased his involvement in the case following the termination of his relationship with Nancy, he would have been acting in a wholly ethical manner. His ethical transgressions were a result of his subsequent involvement with Jay.
The Ethical Review Board’s Conclusion
It was unethical for Mike to agree to provide a separate engineering and safety analysis report.
BOARD OF ETHICAL REVIEW
Wendell Beard, P.E. Robert J. Haefeli, P.E. Ernest C. James, P.E. Robert W. Jarvis, P.E. James L. Polk, P.E. Everett S. Thompson, P.E. J. Kent Roberts, P.E., chairman
Note – In regard to the question of application of the Code to corporations vis-a-vis real persons, business form or type should not negate nor influence conformance of individuals to the Code. The Code deals with professional services, which services must be performed by real persons. Real persons in turn establish and implement policies within business structures. The Code is clearly written to apply to the Engineer and it is incumbent on a member of NSPE to endeavor to live up to its provisions. This applies to all pertinent sections of the Code. This opinion is based on data submitted to the Board of Ethical Review and does not necessarily represent all of the pertinent facts when applied to a specific case. This opinion is for educational purposes only and should not be construed as expressing any opinion on the ethics of specific individuals. This opinion may be reprinted without further permission, provided that this statement is included before or after the text of the case.
A man cannot have two masters
Does Mike need to take into account his concern and safety for others that come after Nancy? If he found that Nancy was at fault for her own injury, is it not his responsibility now to speak out for the defendant to prevent this from happening again? Are we not supposed to look out for the safety of the public? Nancy’s lawyer will just dismiss his information…or hopefully drop the case.
Correct. Interesting that the “protect the public” ethic suddenly goes out the window on this one. Not interested in pursuing the truth. Like the professional liability insurance lawyers that work to settle out of court and keep poor designers in business so long as it minimizes financial impact on their business.
Engineers, unlike lawyers and politicians, have a duty to present unvarnished truth, regardless of whom it impacts. I see no issues, other than offending some lawyers, whom I couldn’t care less are offended.
The issue is the payment. You CAN NOT work for both sides. He still could be subpoena, then the lawyers would handle that accordingly.
Regardless of Mike’s ethical obligation and moral character, he can’t offer his technical expertise from both sides of argument. It’s just not right no matter.
It would be interesting if the plaintiff’s attorney learned of Mike’s existence and called him as a witness.
If “Jay” has half a brain, Mike will be called. Seen it happen many times.
Interesting dilemma, thanks! Even if it hadn’t been deemed to be unethical, it “looks and feels” like something to be avoided to me.
I don’t agree with this conclusion. An engineer’s duty is first and foremost to protect the public. A person was injured at the fault of the plaintiff, at least in Mike’s opinion. Without consequences, another person or persons will likely suffer the same result at the hand of the plaintiff. The initial description failed to state if the second involvement was disclosed, so it is assumed it was. That’s a key fact since the code references above state exceptions upon disclosure. I’ve seen many conclusions where an engineer can be held liable in an incident if they are aware prior of an unsafe condition and stayed silent. This conclusion contradicts those. The plaintiff has the right to refute Mike’s testimony if they feel it’s incorrect. If correct, then Mike did his part to protect the public from future injury.
Engineer Mike’s actions were clearly Not Ethical. He accepted compensation from both parties in the litigation, and it is reasonable to conclude that he had information from his work for the Plaintiff that the Defendant may not have obtained through Discovery.
Mike dropped the ball on this, pretty clearly. However, Jay didn’t have to hire Mike to achieve his ends. Mike’s conclusions, however communicated, are discoverable and not privileged communication. Jay just had to depose Mike and/or call him as a hostile witness.
I don’t have a problem with this. Mike did the right thing in telling the plaintiff he could not in good faith support their position, he did not provide a report and his services were terminated. On the contrary, his opinion supported the defense and they hired him. He furnished the report that aligned with his opinion.
At one time I had a similar case. At first I was asked to provide a professional opinion by the plaintiff’s attorney as a safety engineer. I gave a deposition in the case based on the evidence provided. Later the defendant’s attorney contacted me to give testimony at trial. They said “You were honest.” Beside, the plaintiff’s attorney did not give you all of the facts of the case. After learning the missing facts, I had to change my professional opinion and had no problem giving honest testimony at trial.
I agree, it was unethical. He had access to privileged information from the plaintiff to use against it.
Building on David Bonin’s comment, if Jay the defendant’s attorney didn’t try to hire Mike, but simply tried to call him as a witness, would Mike have to comply and testify? Or more generally, if a PE has knowledge about a legal case, under what conditions can the PE be compelled to testify?
Mike is not the only engineer on the planet. He did the right thing by telling the truth to Nancy and Nancy paid him for his opinion. When Jay tried to hire him, he should have just said “Sorry, I have a conflict and I cannot write a report for you.”
Jay, having already heard what Mike’s preliminary opinion was, could then, with confidence, seek another (ethical) engineer to explore the facts and likely reach the same conclusion as Mike.
The Board’s evaluation is completely correct.
If the engineer determined that an unsafe condition caused an injury, i think the engineer would be obliged to tell the Government that issued the permit for the engineering project, whether the plaintiff liked it or not.
Did he tell the truth, the whole truth, and nothing but the truth? If so, I see no problem. If he learned things the plaintiff was withholding from the defense, that was unethical on their part, not the Engineer’s. I disagree completely that it was unethical to give his findings to Jay. Conversely, it would have been unethical not to do so, as he would be hiding the truth and be complicit in a meritless legal action.
I suppose providing a report to the other side would be ethical as long as a non-disclosure agreement was not signed.
I’d also wonder how the other side managed to get ahold of me too!
I don’t have a problem with the position of the Board of Ethical review in this case and believe there is a problem with an Engineer being paid by both parties involved. I do wonder however, if information about Mike’s report (or lack thereof) would be available to Attorney Jay through discovery. Couldn’t Attorney Jay subpoena Mike to testify as to why we declined to produce the report that Attorney Nancy was looking for? What would be the point of the defendant paying Mike to produce a report? To build an even stronger case for the defendant?
In similar situations, I have been hired as a consultant to an attorney and in other cases as an expert witness. There is a difference between the two. I essentially perform the exact same task. Throughly investiage and write a full and complete report.
As a consultant, the attorney does not list you in official court documents as their expert. Your role is to “educate” the attorney so they can best represent their client. In addition to the report, I normally provide the attorney a list of possible questions to ask the opposing sides expert witnesses. I am not involved in any depositions or court appearances. The attorney has no obligation to the court to ever mention my name or business. I am provided all evidence and depositions for my review and comment.
As an expert witness, my services are listed with the court and my name is provided to the opposing attorney. Under this circumstance I am “locked in” with that attorney and can’t be hired by any other party, with regard to this case. It’s like having a NDA. My full report may be provided to the opposing attorney and I am subject to being deposed.
My job is to do a through investigation of the facts and report them to my client. The opposing attorney can do the same, using their expert. My attorney can choose to use the information that I provided or not. I have an ethical obligation to my client and an ethincal obligation to not do anything that prevents their expert witness from doing a through investigation.
The ethic responsibilities here are pretty clear. If you have been retained by one party in a lawsuit, you can’t later go to work for a different party in the same matter.
In the case described, had Jay produced Mike’s report as evidence, you can bet that Nancy would promptly sought to have Mike’s report suppressed and gotten an order from the court ordering its exclusion.
Personally, I’ve had experience with law firms ostensibly “interviewing” potential experts only to find out later that the firm later sought to prohibit any of the unsuccessful firms from working for the other party on the grounds of “conflict” or “disclosure of confidential privileged information” because of the “interview.” Actually a cheap way to attempt to limit the opponent’s choice of expert support.
Several people have commented about the safety of the public. They appear to have missed the point that Mike the engineer was hired by the plaintiff, i.e., the allegedly injured party, and based on his investigation for the plaintiff, concluded that no danger to the public existed since his conclusion was that the plaintiff’s complaint was not justified. He did however continue to have an obligation to protect any confidential information and the “not ethical” conclusion is correct. As others have also noted, his opinion may be discoverable, and he may be called as a witness, but may not act as a paid expert for the “other side.”
I’ve done legal expert work and been self-employed virtually all of my career. The board is correct in both interpretation and ruling. The engineer is a fiduciary of their client for this scope of services. I would get an attorney, of my own, even if I was deposed by opposing counsel much less engaged after termination of services with principal client.
Interesting comments. Considering that there were no facts given with regard to the case ifself, it’s hard to make an argument that a future danger exists to place others at risk and therefore there is an obligation for “Mike” to ignore the rules and support the defendant. This hypothetical case involved injury, therefore this is a matter of finding fault via a legal process, where one side is prohibited from using evidence that has not been properly disclosed by subpoena or the legal discovery process. “Jay” the defendant’s lawyer should realize that this could place his case at risk, as Mike’s report could be disallowed given the circumstances. If there truly was a future danger, Mike should have notified the Plaintiff and they would be obligated to follow up. If they did not, Mike could inform the Judge presiding over the case, and the Judge could properly address the concern. Taking money from the defendant isn’t about protecting others from danger, it’s greed and unethical.
I am not sure I agree with the ruling of “Not Ethical”. If Mike had revealed to Jay the information in the prior report given to Nancy – yes that is completely unethical. But if Jay wants to hire Mike for a separate study – I don’t see an issue. As engineers, we should be allowed to practice design for multiple companies without revealing any information about the designs to competing companies.
With regard to protecting the , the engineer could go to the appropriate government board with a letter that is generic, to wit: To prevent injury When attaching widgets to gazintas, the hand guard needs to be spring loaded to the closed position, and an interlock mechanism used to prevent start up with the hand guard not closed.