Conflict of Interest - Expert Witness for Contractor

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It would not be ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances.

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The issue presented here was in many ways addressed by this Board in Case 76-3. In that case an engineer, under a retainer agreement with a county to provide water sewage design and expertise, and general advisory services, entered into a second retainer agreement with a developer with county approval. Thereafter, the developer filed a petition with the zoning board to rezone a substantial area of the county for commercial purposes. The county department filed several engineering reports adverse to the zoning petition, recommending denial of the rezoning because the proposed construction would overload available water sewage facilities. The development company then called the engineer as an expert witness at the zoning hearing. The engineer testified in support of the zoning petition. There we noted that when the engineer appeared before the body which had jurisdiction over the subject matter on behalf of a party whose position was adverse to that of the government while at the same time being an advisor to the government, he at best gave the appearance of trying to be on both sides of a public policy issue. We added that it would be incorrect to accept the engineer's role as an expert witness in the ordinary sense of that kind of professional service arrangement. The engineer was doing more than offering his expertise in engineering matters as an aid to a fuller understanding by the tribunal; he was in fact a paid advocate of a private interest in open conflict with the engineering opinions of the government. We noted that although the engineer was not required to agree with the government or even support its position at the hearing, if he chose to oppose that position on behalf of an adverse party, he could ethically do so by first resigning from his role as advisor to the county. The facts presented in the instant case are strikingly similar to those presented in Case 76-3 with one exception. Under the facts of this case, Engineer A was paid in full for his serv...

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Engineer A is retained by the U.S. government to study the causes of a dam failure. Later Engineer A is retained by the contractor on this project, who has filed a claim against the U.S. government for additional compensation.

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Is it ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances?
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Roles R
w=0.12 384D
U.S. Government Dam Failure Investigation Client
Retained Engineer A to study the causes of the dam failure; subsequently became the adverse party when Engineer A...
Contractor Adverse Claim Client
Filed a claim against the U.S. government for additional compensation on the dam project; subsequently retained...
Dam Failure Forensic Investigation Engineer
A licensed professional engineering role in which an engineer is retained by a government or institutional client to...
Contractor Adverse Claim Forensic Retaining Client
A contractor stakeholder and client role in which a construction contractor who has filed a claim for additional...
Engineer A Dam Failure Forensic Investigation Engineer
Initially retained by the U.S. government to study the causes of a dam failure; subsequently retained by the...
5 entities
Principles P
w=0.2 384D
Confidentiality Principle
Must be balanced against public safety obligations and legal disclosure requirements.
Objectivity
Principle requiring engineers to render professional opinions and evaluations based on objective technical...
Loyalty
Relational principle requiring engineers to serve employer and client interests faithfully, but only within the...
Confidentiality Principle Invoked Regarding U.S. Government Investigation Findings
The forensic findings, investigative methodology, and technical conclusions developed by Engineer A during the...
Objectivity Principle Invoked for Expert Witness Independence
Engineer A's role as expert witness requires him to state opinions based on firsthand knowledge and facts of record;...
Confidentiality Principle Invoked for Government-Acquired Specialized Knowledge
The specialized, privileged, and confidential knowledge Engineer A acquired while retained by the U.S. government to...
Resignation as Prerequisite for Adverse Advocacy Permissibility Applied to Case 76-3 Precedent
In Case 76-3, the Board held that an engineer simultaneously serving as county advisor could ethically oppose the...
Progressive Ethics Code Restriction Applied to 1981 Code Revision
The 1981 revision of the NSPE Code adding Section III.4.b established a more restrictive standard for...
Switching Sides Prohibition in Adversarial Proceedings
Relational principle prohibiting engineers who have been retained by one party in an adversarial proceeding - and...
Former Client Adversarial Participation Prohibition
Relational principle prohibiting engineers from participating in or representing an adversary interest in connection...
Switching Sides Prohibition Invoked Against Engineer A Dam Failure Forensic Investigation Engineer
Engineer A, having been retained by the U.S. government to forensically investigate the dam failure, subsequently...
Former Client Adversarial Participation Prohibition Invoked Against Engineer A
Engineer A acquired particular specialized knowledge - the technical causes of the dam failure - on behalf of the...
Objectivity Principle Structurally Compromised for Engineer A in Contractor Engagement
Engineer A cannot render an objective forensic opinion on dam failure causation for the contractor because the prior...
Loyalty Obligation of Engineer A to Former Client U.S. Government
Engineer A's acceptance of the contractor's retainer in a claim directly adverse to the U.S. government - the former...
Resignation as Prerequisite for Adverse Advocacy Permissibility Principle
Relational principle establishing that an engineer who simultaneously serves as an advisor to one party in a public...
Specialized Knowledge Adverse Use Prohibition Requiring Former Client Consent
Relational principle, codified in NSPE Code Section III.4.b, establishing that an engineer who has gained particular...
Switching Sides Prohibition Invoked Against Engineer A Dam Failure Forensic Investigation
Engineer A, having been retained by the U.S. government to study the causes of a dam failure and thereby gaining...
Former Client Adversarial Participation Prohibition Invoked Against Engineer A Under Section III.4.b
Engineer A's retention by the contractor to testify as an expert witness against the U.S. government - his former...
Comparative Case Precedent Distinguishing Obligation Applied to Case 76-3 vs Present Case
The Board carefully distinguished the present case from Case 76-3 on two material dimensions: (1) the active vs....
Dual Role Appearance of Impropriety Invoked in Case 76-3 Advisory Context
In Case 76-3, the engineer who appeared before the zoning board on behalf of the developer while simultaneously...
Loyalty Principle Invoked for Former Client Government Protection
Engineer A's duty of loyalty to his former client - the U.S. government - persists in the form of the prohibition on...
21 entities
Obligations O
w=0.15 384D
Switching Sides Prohibition Engineer A Dam Failure Government to Contractor
Engineer A was obligated to refrain from accepting retention by the contractor who filed a claim against the U.S....
Termination Non-Cure Adversarial Conflict Engineer A Dam Failure
Engineer A was obligated to recognize that the conclusion or termination of the government engagement did not cure...
Adversarial Retention Motivation Awareness Engineer A Contractor Dam Failure
Engineer A was obligated to recognize that the contractor's motivation for retaining Engineer A was Engineer A's...
Government Forensic Findings Confidentiality Non-Disclosure Engineer A Contractor
Engineer A was obligated to refrain from disclosing, using, or allowing the confidential forensic findings,...
Forensic Expert Witness Objectivity Structurally Compromised Engineer A Contractor Engagement
Engineer A was obligated to recognize that accepting the contractor's retainer in the same dam failure matter...
Independent Report Pledge Non-Cure Switching Sides Engineer A Dam Failure
Engineer A was obligated to recognize that any pledge to provide a separate and independent forensic analysis for...
Same-Matter Adverse Contractor Retainer Declination Engineer A Dam Failure
Engineer A was obligated to decline the contractor's retainer upon recognizing that the contractor's claim against...
Simultaneous Dual-Role Adverse Advocacy Resignation Prerequisite Case 76-3 County Engineer
The engineer serving simultaneously as county advisor under retainer and as expert witness for the developer at the...
Post-Engagement Termination Same-Matter Adverse Expert Witness Declination Engineer A Dam Failure
Engineer A was obligated to decline the contractor's retainer as expert witness against the U.S. government in the...
Government-Retained Forensic Engineer Adverse Contractor Engagement Prohibition Engineer A Dam Failure Discussion
Engineer A was obligated to refrain from accepting retention by the contractor as expert witness in the contractor's...
Proceeding Duration Loyalty Persistence Engineer A U.S. Government Dam Failure
Engineer A was obligated to maintain a duty of trust and loyalty to the U.S. government - the former client - for at...
Government-Retained Forensic Engineer Adverse Contractor Engagement Prohibition Obligation
Duty of a licensed professional engineer who has been retained by the U.S. government (or any governmental client)...
Government Forensic Investigation Confidential Findings Non-Disclosure to Adverse Contractor Obligation
Duty of a licensed professional engineer who has been retained by the U.S. government to forensically investigate a...
Same-Matter Adverse Contractor Retainer Declination Obligation
Duty of a licensed professional engineer who has completed or terminated a forensic engagement on behalf of one...
Former Client Adversarial Consent Prerequisite Engineer A U.S. Government Dam Failure
Engineer A was obligated to obtain the informed consent of the U.S. government - the former client in whose service...
Simultaneous Dual-Role Adverse Advocacy Resignation Prerequisite Obligation
Duty of a licensed professional engineer who simultaneously serves as a paid advisor to one party in a public...
Section III.4.b Specialized Knowledge Former Client Consent Prerequisite Obligation
Duty of a licensed professional engineer who has gained particular specialized knowledge on behalf of a former...
Expert Witness Firsthand Knowledge Privileged Information Contamination Avoidance Obligation
Duty of a licensed professional engineer who has been retained as an expert witness in adversarial litigation to...
Paid Advocacy Versus Expert Witness Role Distinction Recognition Obligation
Duty of a licensed professional engineer who is retained to testify in a proceeding on behalf of a party whose...
Post-Engagement Termination Same-Matter Adverse Expert Witness Declination Obligation
Duty of a licensed professional engineer whose engagement with one party in adversarial litigation has been fully...
Code Revision Prospective Application Adverse Participation Stricter Standard Obligation
Duty of a licensed professional engineer - and of ethics adjudicators evaluating engineer conduct - to recognize...
Paid Advocacy Versus Expert Witness Role Distinction Recognition Case 76-3 County Engineer
The engineer was obligated to recognize that his testimony at the zoning hearing on behalf of the developer - while...
Section III.4.b Specialized Knowledge Former Client Consent Prerequisite Engineer A Dam Failure
Engineer A was obligated under NSPE Code Section III.4.b to obtain the affirmative consent of all interested parties...
Expert Witness Firsthand Knowledge Privileged Information Contamination Avoidance Engineer A Dam Failure
Engineer A was obligated to recognize that his expert witness testimony for the contractor - necessarily based on...
Code Revision Prospective Application Adverse Participation Stricter Standard Engineer A Dam Failure
Engineer A was obligated to apply the 1981 revised NSPE Code Section III.4.b - not the pre-1981 standard under which...
Switching Sides Forensic Expert Prohibition Engineer A Dam Failure Discussion
Engineer A was obligated to refrain from switching sides by accepting retention by the contractor - the opposing...
26 entities
States S
w=0.1 384D
Opposing Party Retention of Engineer A Motivated by Prior Government Access
The contractor's motivation for retaining Engineer A is transparently linked to Engineer A's prior access to the...
Engineer A Confidential Government Investigation Information Held
Engineer A's possession of confidential technical findings, government strategies, and investigative data obtained...
Engineer A Structural Conflict of Interest - Dual Adverse Retention in Same Matter
Engineer A's irresolvable conflict between obligations to the U.S. government (original client) and the contractor...
Engineer A Initial Government Retention - Dam Failure Investigation
Engineer A's professional relationship with the U.S. government as retained investigator of dam failure causes
Sequential Opposing-Party Retention in Same Investigative Matter State
State in which an engineer, having been retained by one party (e.g., a government agency) to investigate a specific...
Contractor Cross-Side Retention of Engineer A in Same Dam Failure Matter
Engineer A's acceptance of retention by the contractor - the opposing party in the same dam failure matter - after...
Sequential Opposing-Party Retention in Same Dam Failure Investigative Matter
Engineer A's sequential retention - first by the U.S. government to investigate dam failure causes, then by the...
7 entities
Resources Rs
w=0.1 384D
Engineer-Confidentiality-Loyalty-Obligation-Standard-Instance
Engineer A obtained confidential technical findings and government litigation-sensitive information during the dam...
Adversarial-Proceeding-Conflict-of-Interest-Standard-Instance
Directly applicable to Engineer A's situation: having gained confidential technical knowledge about the dam failure...
NSPE-Code-Sequential-Adverse-Representation
Primary normative authority governing whether Engineer A may ethically accept retention by the contractor after...
Sequential-Party-Representation-Ethics-Standard-Instance
Governs the ethical propriety of Engineer A serving first for the U.S. government and then for the contractor in an...
BER-Dam-Failure-Sequential-Retention-Precedent
The BER case system provides analogical precedents for situations where an engineer is retained by one party to...
5 entities
Actions A
w=0.1 384D
Accepts Government Dam Retention
Completes and Terminates Government Retainer
Accepts Contractor Adverse Retention
Forgoes Consent-Seeking from Former Client
4 entities
Events E
w=0.08 384D
1981 Code Revision Enacted
Dam Failure Occurs
Government Retainer Established
Specialized Knowledge Acquired
Government Engagement Concluded
Adverse Retainer Relationship Formed
Code Violation Instantiated
7 entities
Capabilities Ca
w=0.07 384D
Evolving Professional Standard Awareness Engineer A 1981 Code Revision
Engineer A was required to be aware that the NSPE Code of Ethics was revised in July 1981 to add Section III.4.b,...
Proceeding Duration Loyalty Persistence Self-Application Engineer A U.S. Government Dam Failure
Engineer A required the capability to recognize and apply the principle that duties of trust and loyalty to the U.S....
Confidential Information Mental Segregation Impossibility Recognition Engineer A Dam Failure
Engineer A required the capability to recognize that having been exposed to the U.S. government's confidential...
Independent Report Pledge Non-Cure Side-Switching Engineer A Dam Failure
Engineer A required the capability to recognize that any pledge to provide a separate and independent forensic...
Termination Non-Cure Adversarial Conflict Self-Recognition Engineer A Dam Failure
Engineer A required the capability to recognize that the conclusion or termination of the government engagement did...
Forensic Side-Switching Conflict Assessment Engineer A Dam Failure
Engineer A required the capability to assess whether accepting retention by the contractor - the adverse party in...
Adverse Retention Motivation Recognition Engineer A Contractor Dam Failure
Engineer A required the capability to recognize that the contractor's motivation for retaining Engineer A was...
Former Client Duty of Trust and Loyalty Duration Assessment Engineer A U.S. Government Dam Failure
Engineer A required the capability to assess how long duties of trust, loyalty, and confidentiality to the U.S....
Forensic Expert Witness Objectivity Structurally Compromised Recognition Engineer A Contractor Dam Failure
Engineer A required the capability to recognize that accepting the contractor's retainer in the same dam failure...
Non-Absolute Former Client Loyalty Boundary Recognition Engineer A Dam Failure
Engineer A required the capability to recognize that while former client loyalty to the U.S. government was not...
Same-Matter Adversarial Consent Prerequisite Recognition Engineer A Dam Failure
Engineer A was required to recognize that accepting the contractor's retainer in the same dam failure matter...
Paid Advocacy Expert Witness Role Distinction Engineer A Dam Failure Case 76-3
Engineer A was required to recognize that his proposed role as expert witness for the contractor was in substance a...
Section III.4.b Consent Prerequisite Application Engineer A Dam Failure
Engineer A was required to identify that NSPE Code Section III.4.b (1981 revision) prohibited him from representing...
Expert Witness Privileged Information Contamination Risk Engineer A Dam Failure
Engineer A was required to assess that his proposed expert witness testimony for the contractor would necessarily...
Confidential Information Mental Segregation Impossibility Engineer A Dam Failure
Engineer A was required to recognize that it was not realistically possible to mentally segregate the confidential...
Proceeding Duration Former Client Loyalty Persistence Engineer A Dam Failure
Engineer A was required to recognize that his duties of trust and loyalty to the U.S. government persisted for at...
Forensic Expert Witness Objectivity Structurally Compromised Engineer A Contractor
Engineer A was required to recognize that accepting the contractor's retainer in the same dam failure matter...
Simultaneous Dual-Role Adverse Advocacy Resignation Prerequisite Case 76-3 County Engineer
The county engineer in Case 76-3 was required to recognize that testifying in support of the developer's zoning...
Former Client Duty of Trust Loyalty Duration Assessment Engineer A Dam Failure
Engineer A was required to assess how long his duties of trust and loyalty to the U.S. government persisted after...
Same-Matter Adversarial Consent Prerequisite Recognition Engineer A U.S. Government Dam Failure
Engineer A required the capability to recognize that accepting the contractor's retainer in the same dam failure...
BER Multi-Precedent Forensic Side-Switching Conflict Synthesis Engineer A Dam Failure
Engineer A required the capability to retrieve and synthesize multiple BER precedent cases bearing on the forensic...
Divided Loyalty vs Terminated Relationship Ethical Equivalence Recognition Engineer A Dam Failure
Engineer A required the capability to recognize that the termination of the government engagement did not bring the...
Unrelated Matter Adverse Forensic Engagement Permissibility Assessment Engineer A Dam Failure
Engineer A required the capability to correctly assess that the contractor's retainer was not permissible as an...
Multi-Party Forensic Prior Relationship Proactive Disclosure Engineer A Dam Failure
Engineer A required the capability to proactively disclose the prior government forensic engagement to the...
Paid Advocacy Versus Expert Witness Role Distinction Recognition Capability
Capability of a licensed professional engineer to recognize the ethically significant distinction between serving as...
Section III.4.b Specialized Knowledge Consent Prerequisite Application Capability
Capability of a licensed professional engineer to identify, interpret, and correctly apply NSPE Code Section III.4.b...
Code Revision Prospective Application Stricter Standard Self-Application Capability
Capability of a licensed professional engineer - and of ethics adjudicating bodies - to recognize that when a...
Expert Witness Privileged Information Contamination Risk Self-Assessment Capability
Capability of a licensed professional engineer who has been retained as a forensic expert witness to recognize and...
Code Revision Prospective Application Engineer A Dam Failure 1981 Standard
Engineer A and the BER were required to recognize that the 1981 revised Section III.4.b - not the 1976 Code under...
BER Multi-Precedent Forensic Side-Switching Synthesis Dam Failure Case
The BER demonstrated the capability to retrieve and synthesize multiple precedent cases - particularly Case 76-3 and...
30 entities
Constraints Cs
w=0.08 384D
Terminated Engagement Confidentiality Persistence Engineer A Government Dam Failure
Engineer A's duty to protect and refrain from adversarially deploying the confidential forensic findings,...
Independent Report Pledge Non-Cure Engineer A Contractor Dam Failure
Any pledge by Engineer A to provide a separate and independent forensic analysis for the contractor would not cure...
Proceeding Duration Loyalty Floor Engineer A U.S. Government Dam Failure
Engineer A's duty of trust and loyalty to the U.S. government persisted at minimum for the full duration of the dam...
Independent Report Framing Non-Cure of Same-Matter Conflict - Engineer A Contractor Dam Failure
Any characterization by the contractor that Engineer A's proposed forensic engagement would be 'independent and...
Opposing-Party Retention Motivated by Prior Confidential Access Non-Acceptance - Engineer A Contractor Dam Failure
Engineer A must recognize that the contractor's motivation for seeking Engineer A's retention is transparently...
Terminated Engagement Confidential Information Perpetual Non-Adversarial-Use - Engineer A U.S. Government Dam Failure
Engineer A's duty to protect and refrain from adversarially deploying the confidential investigative findings,...
Forensic Expert Paid Advocacy Non-Equivalence to Hired Gun Prohibition - Engineer A Contractor Dam Failure
Even if Engineer A were to accept the contractor's retainer (which is itself ethically prohibited), Engineer A would...
Paid Advocacy Versus Objective Expert Witness Role Distinction County Engineer Case 76-3
The county engineer who testified at the zoning hearing on behalf of the developer - while simultaneously serving as...
Paid Advocacy Versus Objective Expert Witness Role Distinction Constraint
Ethical constraint establishing that a licensed professional engineer who testifies in an adversarial proceeding on...
Adversarial Retention Motivation Awareness Non-Exculpation Engineer A Contractor Dam Failure
Engineer A could not invoke naivety about the contractor's motivations as an exculpatory defense - the sequence of...
Expert Witness Firsthand Knowledge Privileged Information Contamination Avoidance Engineer A Dam Failure
Before accepting the contractor's retainer as expert witness, Engineer A was required to assess whether his...
Post-Code-Revision Stricter Standard Retroactive Precedent Non-Controlling Constraint
Interpretive and ethical constraint establishing that when the NSPE Code of Ethics is revised to add or strengthen a...
Switching Sides Bar Engineer A Government to Contractor Dam Failure
Engineer A was prohibited from accepting retention by the contractor as expert witness in the contractor's claim...
Former Client Consent Prerequisite Engineer A U.S. Government Dam Failure Adversarial Participation
Engineer A was prohibited from participating in or representing an adversarial interest in the dam failure...
Same-Matter Cross-Side Forensic Retention Absolute Bar Engineer A Dam Failure
Engineer A was absolutely prohibited from accepting retention by the contractor - the opposing party in the same dam...
Post-Code-Amendment BER Precedent Supersession Case 76-3 to Engineer A Dam Failure
BER Case 76-3 - decided under the 1976 Code of Ethics which contained no provision equivalent to Section III.4.b -...
Simultaneous Dual-Role Adverse Advocacy Resignation Prerequisite County Engineer Case 76-3
An engineer who simultaneously serves as advisor to one party and is asked to testify adversarially against that...
Confidential Client Information - Engineer A U.S. Government Dam Failure Investigation
Engineer A is constrained from disclosing, using, or allowing the confidential forensic findings, investigative...
Same-Matter Cross-Side Forensic Retention Absolute Bar - Engineer A Dam Failure Government to Contractor
Engineer A is absolutely prohibited from accepting retention by the contractor - the opposing party in the dam...
Switching Sides Adversarial Proceeding Confidential Access Bar - Engineer A Dam Failure
Engineer A, having gained cooperative access to confidential information, investigative findings, and government...
Former Client Adversarial Proceeding Consent Prerequisite - Engineer A U.S. Government Dam Failure
Engineer A may not participate in, or represent an adversarial interest against, the U.S. government in connection...
Proceeding-Duration Former Client Loyalty Minimum Floor - Engineer A U.S. Government Dam Failure
Engineer A's duty of trust and loyalty to the U.S. government - the former client in whose service Engineer A gained...
Forensic Engineer Pre-Acceptance Same-Matter Prior Engagement Conflict Screening - Engineer A Contractor Dam Failure
Before accepting the contractor's retainer, Engineer A was required to conduct a conflict screening to determine...
Post-Termination Adversarial Retention Motivation Awareness Non-Exculpation - Engineer A Contractor Dam Failure
Engineer A cannot invoke naivety about the contractor's motivations as an exculpatory defense for accepting the...
24 entities
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