Obligation-Conflict Resolution - Conflict Of Interest - Duty of Loyalty of Terminated Employed Engineer to Employer - Misleading Brochure

Obligation-Conflict Resolution

Case 83-1 (1983) · Conflict Of Interest - Duty of Loyalty of Terminated Employed Engineer to Employer - Misleading Brochure

Case Precedents

Professional obligations conflict, and the board applies no fixed rule for which one wins. Each resolution is recorded as three edges: competesWith (the tension), prevailsOver (the obligation the board allowed to win in this case), and defeasibleUnder (the situation under which the yielding obligation gives way). The same tension is then traced across comparable cases, where its resolution shifts with context. Hover any obligation or state to see its definition; click to open it in OntServe.

How this case resolved it

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Engineer A Pre-Departure Competitive Solicitation Employer Disclosure BER-82 prevails over Engineer A Employer-Initiated Termination Pre-Departure Client Solicitation Permissibility

the two obligations are in tension (competesWith)

the yielding obligation gives way only under (defeasibleUnder):

Engineer A Active Client Solicitation During Continued Employment
Engineer A Covert Current-Client Solicitation While Employed
Engineer A Pending Termination Notice Active Employment Continuation
Engineer A Specialized Knowledge Solicitation Risk

Engineer A Faithful Agent Duty During Notice Period BER-82 prevails over Engineer A Employer-Initiated Termination Pre-Departure Client Solicitation Permissibility

the two obligations are in tension (competesWith)

the yielding obligation gives way only under (defeasibleUnder):

Engineer A Active Client Solicitation During Continued Employment
Engineer A Covert Current-Client Solicitation While Employed
Engineer A Pending Termination Notice Active Employment Continuation
Engineer A Specialized Knowledge Solicitation Risk

Engineer B Post-Actual-Departure Brochure Cessation Absolute BER-82 prevails over Engineer B Notice-Period Active-Negotiation Key-Employee Departure Disclosure BER-82

the two obligations are in tension (competesWith)

the yielding obligation gives way only under (defeasibleUnder):

Engineer B Post-Departure Brochure Continued Use
Engineer B Post-Termination Brochure Continued Use

Engineer B Post-Actual-Termination Brochure Personnel Listing Prohibition prevails over Engineer B Notice-Period Active-Negotiation Key-Employee Departure Disclosure BER-82

the yielding obligation gives way only under (defeasibleUnder):

Engineer B Post-Departure Brochure Continued Use
Engineer B Post-Termination Brochure Continued Use

Engineer A Questionable Competition Methods Covert Solicitation BER-82 prevails over Engineer A Employer-Initiated Termination Pre-Departure Client Solicitation Permissibility

the yielding obligation gives way only under (defeasibleUnder):

Engineer A Active Client Solicitation During Continued Employment
Engineer A Covert Current-Client Solicitation While Employed
Engineer A Pending Termination Notice Active Employment Continuation
Engineer A Specialized Knowledge Solicitation Risk

Open tensions recorded without a resolution: Engineer A Employer-Initiated Termination Pre-Departure Client Solicitation Permissibility vs Engineer A Faithful Agent Notice-Period Boundary Engineer A Employer-Initiated Termination Pre-Departure Client Solicitation Permissibility vs Engineer A Specialized Knowledge Employer Disclosure Before Competitive Use BER-82 Engineer A Post-Departure Former-Client Solicitation Permissibility Boundary BER-82 vs Engineer A Specialized Knowledge Post-Departure Competition Constraint Engineer B Notice-Period Active-Negotiation Key-Employee Departure Disclosure BER-82 vs Engineer B Pertinent Fact Dual-Element Misrepresentation Test Brochure BER-82

What the board concluded

It was unethical for Engineer A to notify clients of Engineer B that Engineer A was planning to start a firm and would appreciate being considered for work while still in the employ of Engineer B.
It was not unethical for Engineer B to distribute a previously printed brochure listing Engineer A as a key employee provided Engineer B apprised the prospective client during the negotiation of Engineer A's pending termination.
It was unethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination.

How comparable cases resolved the same tension

Engineer A Employer-Initiated Termination Pre-Departure Client Solicitation Permissibility yields to Engineer A Pre-Departure Competitive Solicitation Employer Disclosure BER-82. The yielding obligation ("Engineer A Employer-Initiated Termination Pre-Departure Client Solicitation Permissibility") recurs across cases; the obligation that overrides it and the context under which it yields differ case by case. This is the case-law move: not a single rule, but a family of context-indexed resolutions.

Case	Obligation that prevailed	Yielding obligation	Context (defeasibleUnder)
01-1 Employment—Questioning Ability Of Former Employer	Engineer A Non-Competition Representation Fidelity Violation	Engineer A Departing Engineer Client Solicitation Honesty Obligation	Engineer A Post-Employment Non-Compete Misrepresentation
98-4 Expert Witness Testimony - Serving...	Engineer A Unrelated Matter Adverse Forensic Engagement Permissibility Assertion in ABC Manufacturing Product Liability Matter	Engineer A Former Client Adversarial Proceeding Consent Prerequisite Non-Application Unrelated Matter	Unrelated Matters Factual Separation Across Three Engagements
97-2 Former Employer Establishing A New Firm -...	Engineer A Non-Disclosure of Clover City Solicitation to ABC Prudential Assessment	Engineer A Client-Suggested Departure Faithful Agent Non-Concealment from ABC	City-Initiated Independence Encouragement from Clover City to Engineer A; Engineer A Pre-Departure Non-Disclosure of Clover City Interest to ABC
84-5 Engineer's Recommendation For Full-Time,...	Public Welfare Paramount Obligation Engineer A Cost-Capitulation Violation	Project Success Safety-Inclusive Notification Engineer A Client Refusal	Client Cost-Based Rejection of On-Site Safety Representative
94-8 Competence To Perform Foundation Design	Engineer A Direct Confrontation of Engineer B Recommending Withdrawal Obligation	Engineer A Client and Authority Escalation Upon Engineer B Refusal Obligation	Engineer A Peer Competence Challenge Reporting Obligation Activated