The October Ethical Dilemma: Solicitation of Clients During Termination Period

This is the October 2026 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.

Applicable NSPE Code 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.a: Engineers shall not, without the consent of all interested parties, promote or arrange for new employment or practice in connection with a specific project for which the engineer has gained particular and specialized knowledge.
Code III.6: Engineers shall not attempt to obtain employment or advancement or professional engagements by untruthfully criticizing other engineers, or by other improper or questionable methods.

The case presented before the Board raises a number of significant points that have heretofore not been specifically addressed. In BER Case 77-11, the Board ruled that four engineers who founded a new firm did not violate the Code of Ethics by generally seeking work from former clients of their previous employer, but were in violation of the Code with regard to projects for which they had particular knowledge while working for their former employer.

Although at first glance the facts in Case 77-11 appear to be quite similar to the instant case, they are distinguishable on two very important points: (1) In the instant case Engineer Alan notified “current” and not former clients of Engineer Brent and offered professional services to them. (2) Engineer Alan was still employed by Engineer Brent when Engineer Alan notified the clients and others of the offer of professional services. We are therefore now asked to decide whether one engineer in the employ of another who is aware of a pending termination may ethically contact “current” clients of an employer and offer professional services to the client without informing the employer.

An engineer is expected to act, at all times in professional matters for the employer, as a faithful agent and trustee (Code I.4). That requires the engineer to recognize both a duty of loyalty and good faith. An essential aspect of those is the duty to disclose. Certainly it is not possible for an engineer to meet those obligations to the employer if the engineer is engaging in such promotional activity to the employer’s detriment. We do not mean to suggest that an employee who severs all ties with the employer and then seeks to contact clients of the employer in order to offer engineering services is in violation of the Code. To the contrary, those were the facts of Case 77-11 and that case remains a proper interpretation of the Code. Nor do we wish to suggest any restraint exists upon one’s absolute right to select in all cases, the engineer of one’s choice. As we noted in Case 77-11, “We have often held that (the Code) is not to be interpreted to give an engineer or firm a right to prevent other engineers from attempting to serve former clients of other firms.” Nevertheless, for the above-noted reason, it is concluded that Engineer Alan violated Code I.4 by failing to act as a faithful employee.

Another issue related to the conduct of Engineer Alan is whether Engineer Alan violated Code III.6 by competing with Engineer Brent using “questionable methods.” It seems obvious that by failing to act as a faithful employee and by failing to disclose the actions to Engineer Brent, Engineer Alan engaged in questionable methods of competition. Even if Engineer Alan was not certain that the actions constituted unethical conduct, Engineer Alan knew or should have known that they were problematic and dubious and raised the possibility of an ethical violation. Therefore, we are of the view that Engineer Alan was in violation of Code III.6

A related question under the facts of this case is whether Engineer Alan violated a duty of disclosure to all interested parties by entering into promotional efforts for work as a principal in connection with work for which Engineer Alan had gained a particular and specialized knowledge. The facts do not indicate whether Engineer Alan was attempting to secure work through particular and specialized knowledge gained. Assuming that in fact Engineer Alan had gained such knowledge and then sought such work without full disclosure to the employer, Engineer Brent, it appears that Engineer Alan would have violated Code III.4.a. of the Code. Again, Engineer Alan owes duties of loyalty, good faith, and disclosure to the employer for which the breach constitutes a violation of the Code. As an employee of Engineer Brent, Engineer Alan could not ethically use proprietary information concerning clients, trade secrets, or other valuable information of the employer without full disclosure to the employer.

BOARD OF ETHICAL REVIEW
F. Wendell Beard, P.E., Ernest C. James, P.E., Robert W. Jarvis, P.E., Lawrence E. Jones, P.E., James L. Polk, P.E., J. Kent Roberts, P.E., Alfred H. Samborn, 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.