Case 96-1

Code Citations: [I.5] [II.5.a]

Case Citations: NONE

Facts:

Some time later, Engineer B calls to ask Engineer A if Engineer A would look at an engineering problem. Engineer A goes to Engineer B's office expecting to get the particulars of a referral, since some members of the developing network are in the habit of giving one another referrals. Engineer B then accompanies Engineer A to the potential client's office, but because the referral process is new, Engineer A does not discuss arrangements with Engineer B. In the middle of the client's description of the engineering problem, the client asks about the contractual relationship. Engineer B replies that Engineer A will subcontract to Engineer B on the project. Engineer A, on the other hand, advises the client that final arrangements have not been completed.

Questions:

2. Was it ethical for Engineer A to advise the client that final arrangements have not been completed?
 

References:

Code I.5

Engineers, in the fulfillment of their professional duties, shall avoid deceptive acts.

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.

Discussion:

Sometimes the mechanism used for the referral can raise ethical issues (see NSPE Code I.5  and II.5.a). For example, the code specifically refers to the type of mechanism that should be used by an engineering firm when seeking work from clients. In addition, it is important that both the engineer that is doing the referring and the engineer being referred have a full understanding of the nature of the referral and the circumstances and conditions under which a referral is being made. Engineers making the referral should make clear to the engineer being referred the general nature of the work if known, information about the client, and any other information known about the conditions that might exist relating to the referral. The engineer receiving the referral should inquire about the referral and request any detailed information that might exist about the referral. In other words, there should be as much full disclosure between the parties as possible, depending upon all of the facts and circumstances. Such full disclosure will help avoid any miscommunication, misunderstandings, unmet expectations between the parties, and will best serve the interests of the client.

In the case at hand, Engineer B's notification to Client that Engineer A would be subcontracting from Engineer B appears to have been caused by a misunderstanding or miscommunication, or an absence of communication that occurred between Engineer B and Engineer A. It is not clear from the facts what the nature of the referral was. It is possible that Engineer A may have been under the impression that Engineer B would merely be providing Engineer A with an introduction to a client and that Engineer A would simply "take it from there." However, it is evident from the facts that a contractual relationship between Engineer A and Engineer B was discussed. In view of the fact that Engineer A was a new engineer starting out as a consultant, it may be argued that Engineer A should have expected that Engineer B would play a significant role in the work being performed. However, a burden of responsibility falls on Engineer B to more clearly define his role with the client. For that reason, Engineer B was deceptive in using the chapter referral network as a means of enhancing his personal business interests. In addition, it is critical that all of these factors be balanced with the interests of the client.

As we noted earlier, this apparent unmet expectation could have been minimized had Engineer A and Engineer B had a more open discussion concerning the referral, etc. As noted under the facts, the referral program sponsored by the local engineering society chapter was new and dependent upon volunteers, and therefore it is possible that many of the details of the program would be worked out over time. Nevertheless, under a plain reading of the facts, it appears that there was cause for ethical concern over the actions of Engineer B. Engineer A had an ethical obligation under the facts to make certain that there are clear and open lines of communication in the future.

Conclusion:

2. It was ethical for Engineer A to advise the client that final arrangements have not been completed.
 

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.
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