Applicable NSPE Code References:
Code II.1.cEngineers 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.
Engineers shall act for each employer or client as faithful agents or trustees.
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.
Engineers in private practice shall not review the work of another engineer for the same client, except with the knowledge of such engineer, or unless the connection of such engineer with the work has been terminated.
One of the more challenging areas of engineering ethics issues involves the everyday relations among engineers. At one time, the Code had strict provisions regarding relations among engineers. However, with the passage of time, these strict provisions have been carefully modified to reflect the needs of clients and the evolving nature and realities of engineering practice.
As with any provision of the Code of Ethics, provisions regarding relations among engineers must be carefully balanced with the needs and requirements of the individual client as well as the particular facts and circumstances of the case. It is not always possible to draw fine distinctions in this area; however certain general ethical principles as enunciated in the Code of Ethics provide guidance in the resolution of these issues.
As has been noted on several occasions by the Board, the question of one engineer reviewing the work of another engineer has long been a subject of inquiry by the Board. Code III.7.a. admonishes engineers against reviewing the work of another engineer for the same client except with expressed knowledge of the engineer or unless the original relationship between the first engineer and the client has been terminated.
In BER Case 79-7, an engineer was asked to inspect mechanical and electrical engineering work performed seven years earlier. The Board concluded that the engineer notified the former engineer that the engineer was being retained to perform review and inspection services and that the review would entail a review of the original design. Said the Board: “It may be helpful for future guidance to again point out that the purpose of Code III.7.a. is to provide the engineer whose work is being reviewed by another engineer an opportunity to submit . . . comments or explanations for . . . technical decisions, thereby enabling the reviewing engineer to have the benefit of a fuller understanding of the technical considerations in the original design in framing comments or suggestions for the benefit of the client.” We believe the reasoning cited by the Board in BER Case 79-7 are as cogent today as they were when the Board issued its opinion.
At the same time, Code II.4 places the obligation upon engineers to act in professional matters for clients as “faithful agents or trustees.” An “agent” is generally defined as a “person authorized by another to act for him or one entrusted with another’s business.” A “trustee” is generally defined as one who stands in a fiduciary or confidential relationship to another. However, as noted in Black’s Law Dictionary (Fourth Edition):
“Trustee” is also used in a wide and perhaps inaccurate sense to denote that a person has the duty of carrying out a transaction, in which he and another person are interested, in such manner as will be most for the benefit of the latter, and not in such a way that he himself might be tempted, for the sake of his personal advantage, to neglect the interests of the other…”
Frankly, it is not clear from a plain reading of the Code whether the original drafters intended that the term “trustee” embrace the fiduciary and confidentiality relationship or whether it was the intent of the drafters to express a more general duty of loyalty and fair dealing. However, in view of the fact that drafters of the Code included separate provisions specifically addressing the obligations of engineers to not disclose confidential information (See Code II.1.c. and Code III.4, Code III.4.a., and Code III.4.b.), we interpret the term “trustee” to refer to the more general duty of loyalty and fair dealing.
The facts, in this case, present the Board with two conflicting provisions of the Code of Ethics: (1) the obligation of the engineer to provide appropriate notice to another engineer in connection with his reviewing the work of that engineer, and (2) the general duty of the engineer as “faithful agent and trustee.” In light of the facts and consistent with BER Case 79-7, we are persuaded that Bobby acted unethically in notifying Peter of Bobby’s relationship with the client. Bobby had an obligation not to notify Peter of his relationship with the client once he was told by the client not to disclose this information.
Finally, we are troubled by the fact that Bobby took this project without first exploring the reason why the client wanted Bobby not to disclose his relationship with the client. We believe this issue should first be clarified.
Our conclusion is based upon the rationale cited above in BER Case 79-7 but is also based upon an analysis of the countervailing argument that Bobby had an obligation as a “faithful agent and trustee” to not to tell Peter of his relationship with the client. As we noted earlier, the general duty of loyalty and fair dealing denotes that a person has the duty of carrying out a transaction, in which he and another person are interested, in such manner as will be most for the benefit of the latter, and not in such a way that he himself might be tempted, for the sake of his personal advantage, to neglect the interests of the other. A review of the facts, in this case, makes clear that Bobby did not appear to be motivated by personal advantage in informing Peter of his relationship with the client. We surmise that Bobby’s disclosure of his relationship with the client constitutes neglect of the interests of his client, and we believe that on balance that the benefits to be derived by Bobby’s disclosure for all parties involved did not outweigh detriments that may be suffered by the client.
Finally, in passing, we would note that Bobby’s delay in informing Peter of his relationship with the client and the preliminary results of his review was not a violation of Code III.7.a. We interpret Code III.7.a. to require disclosure within a reasonable period of time following the establishment of the relationship and the review. We find nothing to suggest that Peter’s rights were prejudiced by the short delay. In view of all of the facts and circumstances involved in this case, we believe the one-week delay is not unreasonable and consistent with Code III.7.a.
It should be noted that the Board was split on whether it was ethical for Bobby to proceed with the review and could not reach an agreement.