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Engineering Ethics and Professional Conduct - Cases

Engineer's Dispute With Client Over Design - Case


Facts:
Client hires Engineer A to design a particular project. Engineer A
develops what he believes to be the best design and meets with
the client to discuss the design. After discussing the design plans
and specifications, the client and Engineer A are involved in a
dispute concerning the ultimate success of the project. The client
believes Engineer A's design is too large and complex and seeks a
simpler solution to the project. Engineer A believes a simpler
solution will not achieve the result and could endanger the public.
The client demands that Engineer A deliver over to him the
drawings so that he can present them to Engineer B to assist
Engineer B in completing the project to his liking. The client is
willing to pay for the drawings, plans, specifications, and
preparation but will not pay until Engineer A delivers over the
drawings. Engineer A refuses to deliver the drawings.
Question:
Would it be ethical for Engineer A to deliver over the plans and
specifications to the client?
References:
Code of Ethics- "Engineers shall at all times recognize that
their primary obligation is to protect the safety, health,
property, and welfare of the public. If their professional
judgment is overruled under circumstances where the safety,
health, property, or welfare of the public are endangered,
they shall notify their employer or client and such other
authority as may be appropriate."
Engineers having knowledge of any alleged violation of this
Code shall cooperate with the proper authorities in furnishing
such information or assistance as may be required."
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Engineers shall advise their clients or employers when they


believe a project will not be successful."
Discussion:
The facts of the case presented to the Board, at first glance, appear
to be fairly straightforward and easily addressed by the Code of
Ethics. On its face we are presented with an engineer who has been
retained by a client to design a project. However, both parties
cannot agree as to the ultimate success of the project as developed
by Engineer A. Thus, the client seeks to terminate the services of
Engineer A, but wishes to obtain the drawings, plans, and
specifications from Engineer A for a fee. Our discussion will be
limited to the ethical rather than the contractual considerations of
this case.
Much of the language contained in the Code relates to the
engineer's obligation to protect the public health, property, and
welfare. In the present case it appears that Engineer A had a
strong concern for the protection of the public health and
welfare. Nevertheless, it is the view of this Board that Engineer A
could have delivered over the drawings to the client and his
conduct would have been ethically proper.
While it is true that Engineer A has an ethical obligation under
Section II.1.a., that obligation assumes that Engineer A is in
possession of verifiable facts or evidence which would substantiate
a charge that an actual danger to the public health or safety exists.
In the instant case, Engineer A makes the overly broad assumption
that if he were to deliver over to the client the drawings so that the
client can present them to Engineer B to assist Engineer B in
completing the project to the client's liking, Engineer B would
develop a set of plans which would endanger the public health and
safety. We think that such an assumption is ill-founded and is not
based upon anything more than a supposition by Engineer A.
Therefore, we are of the view that Engineer A should not have
withheld the drawings on the basis of Section II.1.a.
In reviewing the conduct of Engineer A up until his refusal to deliver
over the drawings to the client, we are of the view that Engineer A
went as far as he was ethically required to go in preparing what he
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believed was the best design for the project and in informing the
client of the dangers of proceeding with the client's simplified
solution. Section III.1.b. is very clear in stating an "Engineer shall
advise [his] client . . . when [he] believes a project will not be
successful." We are of the view that, by conferring with the client
and explaining his concerns over a proposed simplified solution,
Engineer A had met his ethical responsibility.
In the event, however, that Engineer A does deliver over to the
client the plans so that the client can present them to Engineer B
for completion of the project to the client's liking, and thereafter
Engineer A discovers that Engineer B developed plans which
constitute a danger to the public, certain actions would then be
required by Engineer A under the Code. Any verifiable conduct on
the part of Engineer B which indicates that Engineer B's plans are
a danger to the public, should be brought to the attention of the
proper authorities, i.e., the responsible professional societies or the
state engineering registration board.

Facts:
Engineer A has a degree in mechanical engineering and is
registered as a professional engineer under the engineering
registration board. He has had 15 years of experience in
mechanical engineering work, including 7 1/2 years of mechanical
and electrical design of all types of buildings. He has designed the
electrical systems for several buildings.
Engineer B, holder of a degree in electrical engineering and
registered as a professional engineer under the state law, filed a
complaint with the state professional engineering society, alleging
that Engineer A had acted unethically in designing electrical
systems in view of his education and registration based on his
proficiency as a mechanical engineer. The complaint does not
question the competency of Engineer A, nor were any plans
submitted by Engineer B to sustain a charge of lack of quality of
the design work of Engineer A, even though such plans were
requested by the state society.
Questions:
1. Was Engineer A unethical in practicing electrical engineering
when his major field was mechanical engineering?
2. Was Engineer B unethical in filing a complaint against Engineer
A without documented evidence (e.g., faulty plans)?
References:
Code C4
"He will have due regard for the safety of life and health of
public and employees who may be affected by the work for
which he is responsible."
Code C23
"He will not directly or indirectly injure the professional
reputation, prospects or practice of another engineer.
However, if he considers that an engineer is guilty of
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unethical, illegal or unfair practice, he will present the


information to the proper authority for action."
Code R13:27
"He will not undertake responsible engineering work for
which he is not qualified by experience and training."
Code R23:45
"He will report unethical practices of another engineer with
substantiating data to his professional or technical society,
and be willing to appear as a witness."
Discussion:
The Canons and Rules are clear that an engineer has a right and
duty to bring charges of unethical conduct when he believes that
a fellow engineer has acted improperly. But merely bringing
charges is not a full discharge of his responsibility. He must,
under Code R23:45, present substantiating data, which he failed
to do in this case, or, at least, explain why he cannot present
such substantiating data and indicate to the best of his
knowledge how and where the full facts may be obtained.
Code R13:27 leaves no doubt of both its negative and positive
admonition. Negatively, it prohibits responsible practice by one
not qualified for the work at hand. Positively, it therefore must be
read to permit any engineering work for which the individual is
qualified. Whether or not an engineer is qualified for particular
work is a question which can be determined only on the basis of
demonstrated technical knowledge as shown by experience and
training. While the type of technical education in an engineering
school is a material factor in this evaluation, it is not controlling
or all-inclusive.
It is known and accepted fact that one's training and experience
continues throughout a professional career and it would be folly
to assume that an engineer could never become qualified beyond
those subjects which he studied in college. It is beyond doubt
that a large number of engineers (perhaps even a majority) move

into new or related fields of professional endeavor as they gain


experience after their college studies.
The trend in engineering registration is to issue a license as a
"professional engineer" without designation of branch, although
the applicant may be examined in a particular branch. Whether
this trend is a wise or proper one is outside of our jurisdiction. It
does emphasize, however, insofar as the public is concerned, the
importance of adhering to Code C4 of the Canons and Code
R13:27. The profession must be alert to possible violations of
these two injunctions and be ready to take prompt and effective
disciplinary action for any breaches. This cannot be accomplished
without complete and detailed information as to alleged
violations. The analysis of the disciplinary body must rest upon
the technical competence and ethical conduct of the engineer as
shown by the evidence of his work.
Conclusion:
Q. 1. Engineer A was not unethical in practicing electrical
engineering when his major field was mechanical engineering,
assuming he was technically qualified by experience to perform
such services.
Q. 2. Engineer B was unethical in filing a complaint against
Engineer A without documented evidence.

Facts:
Engineer A is asked by a firm to prepare specifications for an air
compression system. Engineer A made the firm aware that she is
the President (and major shareholder) of a company that
manufactures and sells air compression systems and that she has
no problem with preparing a set of generic specifications. Engineer
A also provides the firm with four other manufacturers that prepare
air compression systems for bidding purposes, and Engineer A did
not include her company as one of the four specified manufacturers.
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The firm now wants to meet with Engineer A and a salesman from
her company. Engineer A indicated to the firm that it might be a
conflict-of-interest.

Question:
Would it be a conflict of interest for Engineer A to prepare a set of
specifications for an air compression system and then have her
company manufacture the air compression system under the facts?

References:
Code II.4
Engineers shall act for each employer or client as faithful
agents or trustees.
Code II.4.a
Engineers shall disclose all known or potential conflicts of
interest which could influence or appear to influence their
judgment or the quality of their services.

Discussion:
The facts in the present case raise a fundamental issue concerning
the manner in which engineers may properly provide professional
services and specify products from companies which they control, in
light of the language contained in the NSPE Code of Ethics Code
II.4.a., which requires engineers to disclose all known or potential
conflicts of interest that could influence or appear to influence their
judgment or the quality of their services.
BER Case 75-10 involved a set of facts similar to the present case.
There, Engineer A was employed on a full-time basis by a radio
broadcast manufacturer as a sales representative. In addition,
Engineer A performed consulting engineering services to
organizations in the radio broadcast field, including analysis of their
technical problems and, when required, recommendation of certain
radio broadcast equipment as may be needed. Engineer A's
engineering reports to his client were prepared in form for filing with
the appropriate governmental body having jurisdiction over radio
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broadcast facilities. In some cases, Engineer A's engineering reports


recommended the use of broadcast equipment manufactured by his
employer. After reviewing previous Board of Ethical Review cases
relating to conflicts of interest (see BER Cases 72-9 and 74-4), the
Board concluded that Engineer A may ethically provide consulting
services as described only if there is full disclosure of all the facts
and circumstances to his client. In reaching its conclusion, the
Board noted that it would have been preferable if the client could
rely on the technical judgment and recommendations of an engineer
without any financial interests in the equipment of any
manufacturer, but it is understood that under some circumstances,
the client may wish to retain the services of an engineer with an
apparent conflict of interest. In the later instance, the client must
have full knowledge of all the circumstances; otherwise the client
has been defrauded.
Turning to the facts of the present case, although Engineer A was
the President and major shareholder in a company that
manufactured and sold air compression systems, clearly Engineer
took all necessary and reasonable steps to disclose all potential
conflicts of interest in order to avoid any appearance of a conflict.
By immediately disclosing the fact that she had a major interest in
an air compression manufacturing company, by suggesting the
name of four other alternative manufacturers, and by raising the
issue before it surfaces as a result of possible appearances,
Engineer A has acted consistently with the Code. Unlike the
previous provisions of the Code that required the engineer to
"avoid" conflicts of interest, the current code acknowledge that
conflicts do arise and imposes upon the engineer the responsibility
to take all reasonable steps to notify and advise the client - leaving
it up to the client whether to proceed with the services of the
engineer. It is the Board's view that Engineer A's conduct was in
keeping with Code provision that engineers must disclose all known
conflicts of interest which could influence or appear to influence
their judgment or the quality of their services.

Conclusion:

It would not be a conflict of interest, and therefore ethical, for


Engineer A to prepare a set of specifications for an air compression
system and then have her company manufacture the air
compression system under the facts.
BOARD OF ETHICAL REVIEW
Lorry T. Bannes, P.E., James G. Fuller, P.E., Donald L. Hiatte, P.E.,
Joe Paul Jones, P.E., Paul E. Pritzker, P.E., Richard Simberg, P.E., C.
Allen Wortley, P.E., Chairman
NOTE: The NSPE Board of Ethical Review (BER) considers ethical
cases involving either real or hypothetical matters submitted to it
from NSPE members, other engineers, public officials and members
of the public. The BER reviews each case in the context of the NSPE
Code of Ethics and earlier BER opinions. The facts contained in each
case do not necessarily represent all of the pertinent facts
submitted to or reviewed by the BER.
Each opinion is intended as guidance to individual practicing
engineers, students and the public. In regard to the question of
application of the NSPE Code of Ethics to engineering organizations
(e.g., corporations, partnerships, sole-proprietorships, government
agencies, university engineering departments, etc.), the specific
business form or type should not negate nor detract from the
conformance of individuals to the NSPE Code. The NSPE Code deals
with professional services -- which services must be performed by
real persons. Real persons in turn establish and implement policies
within business structures.
This opinion is for educational purposes only. It may be reprinted
without further permission, provided that this statement is included
before or after the text of the case and that appropriate attribution
is provided to the National Society of Professional Engineers' Board
of Ethical Review.
Visit the "Ethics Button" on NSPE's website (www.nspe.org) and
learn how to obtain complete volumes that include all NSPE
Opinions (or call 1-800-417-0348).

Facts:
Engineer A, employed by Firm X, left Firm X and goes to work for
Firm Y, a competitor. A project on which Engineer A was in
responsible charge was virtually completed, but Engineer A did not
sign or seal the construction documents before leaving Firm X's
employment. Engineer B, a principal in Firm X requests Engineer A
to sign and seal the drawing. Engineer A refuses to sign or seal the
construction documents unless Firm X pays Engineer A an additional
fee.

Questions:
1. Was it ethical for Engineer A to refuse to sign or seal the plans?
2. Was it ethical for Engineer B to ask Engineer A to sign and seal
the construction documents?
3. If additional work was required on the part of Engineer A, would
it be ethical for Engineer A to request additional compensation?

References:
Code I.4
Engineers, in the fulfillment of their professional duties, shall
act for each employer or client as faithful agents or trustees
Code III.4
Engineers shall not disclose, without consent, confidential
information concerning the business affairs or technical
processes of any present or former client or employer, or
public body on which they serve.
Code III.8
Engineers shall not attempt to injure, maliciously or falsely,
directly or indirectly, the professional reputation, prospects,
practice or employment of other engineers. Engineers who
believe others are guilty of unethical or illegal practice shall
present such information to the proper authority for action.
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Code III.9
Engineers shall accept personal responsibility for their
professional activities; provided, however, that Engineers may
seek indemnification for services arising out of their practice
for other than gross negligence, where the Engineer's interests
cannot otherwise be protected.

Discussion:
The obligation of the engineer to take responsibility for professional
services is a basic ethical principal contained in the NSPE Code of
Ethics. As a general matter, engineers as professionals have the
obligation to assume responsibility for professional services
performed by them or under their direct personal supervision.
Depending upon the nature of the work and other requirements,
this may include work performed for the benefit of a client, design
work, reports, plans, specifications and work prepared by the
engineer which will be submitted to a public authority for approval.
Engineers who work for one firm and then move on to another firm
are not released from this professional responsibility. The work that
they performed for their previous employer is no less their work
because they no longer have a direct relationship with that firm.
Once a professional renders professional services on behalf of a
client, the professional is duty bound to make certain that the work
is done in a responsible and professional manner and that the
client's interests are protected and preserved.
This circumstance can become particularly sensitive where an
engineer leaves a firm to go to work with a competing firm. This
issue has been discussed by the BER on numerous occasions (see
BER Cases89-7, 92-6, 93-3, 93-7). Nevertheless, the fact that the
two firms are in direct competition should have no bearing upon the
responsibility of the engineer to assume responsibility for the work
and take appropriate steps for the benefit of the client. It would
seem not only the ethical course of action, but also an action which
comports with the interests of all parties, including the interests of
the new firm by which the engineer is now employed.

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It is not entirely clear from the facts the full extent to which the
work had been completed by Engineer A. However, it can be
assumed by the facts and the use of the term "virtually completed"
that the work had been completed in almost all respects and only
minor ministerial detail remained to be performed. On that basis, it
can be assumed that Engineer B would not be requested to perform
an exhaustive or detailed review of the work, since it can be
assumed that Engineer A was already intimately familiar with the
work on the project for which he had been and continues to be
responsible. In addition, it does not appear under the facts that
because Engineer A is not employed by the original firm at the time
he is being asked to sign and seal the drawings that he would be
violating any ethical proscription contained in the NSPE Code of
Ethics (see NSPE Code III.4).
We are concerned by Engineer A's professional attitude concerning
the firm's request that he sign and seal drawings. While we believe
Engineer A may have legitimately been entitled to a small fee for
performing additional professional services performed for his former
employer, and as part of his accountability to his new firm, we are
struck by Engineer A's refusal to sign and seal the drawings unless
paid additional compensation. As we have discussed earlier, since
Engineer A was primarily responsible for the work and had direct
control and personal supervision over the work, Engineer A has a
professional obligation to sign the work regardless of the how the
compensation matter is resolved. It is unclear whether competitive
pressures between the firms may have been a factor in Engineer A's
position, but such factors should not come into play in a matter of
this type by signing and sealing the drawings. (see NSPE Code
III.9).
Assuming as we have in this case that Engineer A was primarily
responsible for the work and had direct control and personal
supervision over the work, Engineer B was clearly justified in asking
Engineer A to sign and seal the documents in question.

Conclusion:

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1. It was unethical for Engineer A to refuse to sign or seal the


construction documents.
2. It was ethical for Engineer B to ask Engineer A to sign and seal
the construction documents.
3. It would be ethical for Engineer A to request additional
compensation.

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