It was ethical for Engineer A to provide services to the parties in the manner described under the facts.

Over the years, the Board of Ethical Review has considered a variety of difficult cases involving conflicts of interest and the scope of an engineer’s ethical obligation to past and present clients. The Board of Ethical Review has also considered several cases involving the question of engineers providing and performing forensic engineering services and the ethical issues that arise in that context (See BER Cases 92-5, 82-6, 76-3). These cases have involved such issues as performing such services on the basis of a contingency fee, licensure requirements when serving as an expert witness, the qualifications of the individual who is being considered to perform the expert services, relationships with attorneys, and examining the conflict of interest questions that may arise. As the Board has noted on at least one previous occasion, one of the most common ethical issues that face engineers in their professional lives is the issue of conflicts of interest. At one point in the past, engineering codes of ethics, including the NSPE Code of Ethics for Engineers, specifically implored engineers to avoid all conflicts of interest. The basis for this position was that the engineer cannot serve two masters and when faced with a conflict of interest, the engineer must in all cases take steps to remove him or herself from such conflicts. Among the concerns expressed by supporters of this position was that engineers who were involved in conflict of interest situations created a poor image for the engineering profession because the issue raised the appearance of impropriety. However, over time, the engineering profession came to the general conclusion that by the very nature of the role of the engineer in society, conflicts of interests were virtually an immutable fact of professional engineering practice and that it was generally impossible for the engineer to, in all cases, remove him or herself from such situations. As a result, codes were changed, and engineers were implored to...

Engineer A was retained by ABC Manufacturing for the purpose of reviewing documents to form an opinion in a patent litigation matter in an area of Engineer A’s expertise. Engineer A performed the requested services and was paid for her work by ABC Manufacturing. Several years later, Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing in a matter not involving any aspect of the earlier patent litigation. Several years later, Engineer A was again retained by ABC Manufacturing in a different patent litigation matter not related to either of the proceeding events. Engineer A again performed the requested services and was paid for her work. However, during cross-examination at trial, opposing counsel questions Engineer A’s previous relationship both in defense of and in litigation with ABC Manufacturing, implying that by providing those services, Engineer A was acting improperly.

Was it ethical for Engineer A to provide services to the parties in the manner described under the facts?