The December Ethical Dilemma: Proper Credit for Past Projects

This is the December 2020 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 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.5.a: Engineers shall not falsify their qualifications or permit misrepresentation of their or their associates’ qualifications. They shall not misrepresent or exaggerate their responsibility in or for the subject matter of prior assignments. Brochures or other presentations incident to the solicitation of employment shall not misrepresent pertinent facts concerning employers, employees, associates, joint venturers, or past accomplishments.
Code III.3.a: Engineers shall avoid the use of statements containing a material misrepresentation of fact or omitting a material fact.

Over the years, the Board of Ethical Review has considered a variety of issues relating to the departure of engineers from an engineering firm and the ethical responsibilities of both the former employer and the former employee in connection with the transitional phases of this event. For example, the Board has considered the reverse of this case—ethical responsibilities of an engineering firm when it is aware that an employee in the firm will be departing from the firm. Does the firm have an obligation to expeditiously correct firm promotional material so as not to mislead clients that an individual in the firm will continue in his or her present capacity with the firm? Similarly, the Board of Ethical Review has considered the ethical responsibility of engineers who hire engineers from other firms and any ethical responsibilities the principals of such firms have in relation to their professional colleagues with the other firm (see BER Cases 64-8, 69-5, 72-10, 77-11).

It is clear that these situations frequently present delicate and sometimes difficult situations, particularly where long-established business relationships exist between engineering firms, engineers, and their clients. Obviously, no engineer or engineering firm “owns” a relationship with a client, as clients are free to determine for themselves which engineer or engineering firm is appropriate for their present and future needs and requirements.

Under the facts, we are deeply troubled by the manner in which Brad promoted his new engineering firm, because we believe there was a clear effort to engage in misleading and deceptive acts. To imply that certain companies are the “clients” of the new firm and to imply and take credit for projects that were performed in an entirely different context by other engineering firms is wholly improper. We cannot identify any context in which Brad could have accurately used the term “client” to describe the new firm’s relationship with the companies listed on the brochure. A “client” implies some past or present business relationship between an engineer, the engineer’s firm, and a company. To use the term “client” to refer to a relationship that existed between an engineer when he was employed in an entirely different context is misleading, deceptive, and a violation of the NSPE Code of Ethics. We cannot think of any clarification that could have been included in such a brochure that would have made the reference to “client” less misleading or deceptive (see Code II.3.a., Code II.5.a., Code III.3.a.).

Similarly and for the same reasons, the reference to the “projects of the firm” is misleading, deceptive, and a violation of the NSPE Code of Ethics. Had the promotional brochure contained a clarification specifically stating that the projects identified were performed by current employees of the new firm when they were employed by the named firms, and depending upon all of the facts and circumstances, the Board may have reached a different result.

BOARD OF ETHICAL REVIEW
James G. Fuller, P.E., William W. Middleton, P.E., Robert L. Nichols, P.E., William E. Norris, P.E., Paul E. Pritzker, P.E., Jimmy H. Smith, P.E., C. Allen Wortley, P.E. (Observer), Donald L. Hiatte, 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.