This is the March 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 March 2023 edition of our monthly series of Ethics case studies titled What Do You Think?

Your vote is recorded as:

It is ethical
Want to know how your peers voted? We’ll send you an email with the poll results on March 28.

Your opinion has been registered for the March 2023 edition of our monthly series of Ethics case studies titled What Do You Think?

Your vote is recorded as:

It is not ethical
Want to know how your peers voted? We’ll send you an email with the poll results on March 28.

A Review of the Facts

Engineer Russell offers a homeowner inspection service in which he performs an engineering inspection of residences by prospective purchasers. Following the inspection, Russell renders a written report to the prospective purchaser.

Russell performed this service for a client (husband and wife) for a fee and prepared a one-page written report, concluding that the residence under consideration was in generally good condition requiring no major repairs, but noting several minor items needing attention.

Russell submitted his report to the client, showing that a carbon copy was sent to the real estate firm handling the sale of the residence. The client objected that such action prejudiced their interests by lessening their bargaining position with the owners of the residence. They also complained that Russell acted unethically in submitting a copy of the report to any others who had not been a party to the agreement for the inspection services.

Did Russell act unethically in submitting a copy of the home inspection report to the real estate firm representing the owners?

Here is the result of our survey of your peers:

Applicable NSPE Code References:

Code 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.

Code II.3
Engineers shall issue public statements only in an objective and truthful manner.

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.

Code II.4
Engineers shall act for each employer or client as faithful agents or trustees.

Discussion

At first glance, this appears to be a case involving a relatively small economic issue compared to the larger commercial and industrial projects with which engineers are often concerned. But as it involves an ethical principle we have not had occasion to address before, we will consider it on the broader philosophical aspects. Also, we note that this is not a case of an engineer allegedly violating the mandate of Code III.4 not to disclose confidential information concerning the business affairs of a client. That provision of the Code necessarily relates to confidential information given to the engineer by the client in the course of providing services to the client. Here, however, there was no transmission of confidential information by the client to the engineer.

Whether or not the client in this case actually suffered an economic disadvantage by the reduction of its bargaining power in negotiating the price of the residence through the owner having knowledge gained from the inspection report, the same principle should apply in any case where the engineer voluntarily provides a copy of a report commissioned by a client to a party with an actual or potential adverse interest.
It is a common concept among engineers that their role is to be open and aboveboard and to deal in a straightforward way with the facts of a situation. This basic philosophy is found to a substantial degree throughout the Code, e.g., Code II.3 and Code II.3.a. At the same time, Code II.1.c. recognizes the proprietary rights of clients to have the exclusive benefit of facts, data, and information obtained by the engineer on behalf of the client.

We read into this case an assumption that Russell acted without thought or consideration of any ulterior motive; that he, as a matter of course, considered it right and proper to make his findings known to all interested parties in order that the parties handle their negotiations for the property with both sides having the same factual data flowing from his services.
Thus, although we tend to exonerate Russell of substantial or deliberate wrongdoing, he was nevertheless incorrect in not recognizing the confidentiality of his relationship with the client. Even if the damage to the client, if any, was slight, the principle of the right of confidentiality on behalf of the client predominates.

The Ethical Review Board’s Conclusion

It is not ethical

Russell acted unethically in submitting a copy of the home inspection to the real estate firm representing the owners.

BOARD OF ETHICAL REVIEW

Ernest C. James, P.E., Lawrence E. Jones, P.E., Robert H. Perrine, P.E., James L. Polk, P.E., J. Kent Roberts, P.E., Alfred H. Samborn, P.E., F. Wendell Beard, 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.