Pitfalls of Parting
One of the most difficult circumstances an engineer may face in his or her professional life involves the severing of relationships between business partners or between an employer and an employee. Navigating the treacherous waters of a professional separation can give rise to a number of ethics challenges involving conflicts of interest, fiduciary duties, and questions of credit and ownership with respect to engineering reports, plans, or other forms of intellectual property. Unfortunately, when disputes over such issues cannot be resolved amicably, an aggrieved party may be tempted to take an ill-advised course of action, and in some cases that party may be called upon to answer a claim of unprofessional conduct.
A letter of complaint is submitted to ASCE’s Committee on Professional Conduct (CPC) by the owner of a midwestern structural design firm (Firm One). It points out that the website of Firm Two, a local competitor, takes credit for the structural design of a large industrial structure. The writer, however, contends that the work was actually performed by Firm One.
The website of Firm Two includes biographies for the firm’s engineering staff, as well as photographs and descriptions of each staff member’s most significant engineering accomplishments. The structure in question is included in the biography of one of the firm’s engineers. According to the complainant, this engineer was previously employed by Firm One and had been involved in the design of the structure during his employment there. However, the letter continues, the engineer had only been a member of the structure’s design team, and he had worked under the direction of senior engineers at Firm One. The letter notes that the website of Firm Two makes no mention of the work having been performed at the engineer’s previous place of employment; nor does it specify the nature of the employee’s involvement, stating only that the engineer had “designed” the structure.
The letter goes on to say that Firm One contacted both the engineer and his current employer, the owner of Firm Two, to request that the project description be amended or removed from the website but that the two had declined to comply. Accordingly, the complainant requests that the CPC open a case against both the engineer and his current employer for violating ASCE’s Code of Ethics.
Upon review of the letter of complaint and the Web links provided therein, the members of the CPC feel that the issues raised warrant investigation. They vote to open a case and then notify the two members of their intent.
Did the two members’ actions in publishing information on their firm’s website about involvement in an innovative design without disclosing that the work was done by one of the members while he was with another firm and working under the supervision of that firm’s engineers violate the Code of Ethics?
The members of the CPC felt that the alleged conduct raised questions with regard to canon 5 of the Code of Ethics: “Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others.” Category (e) in the guidelines to practice for this canon also was seen as relevant: “Engineers shall give proper credit for engineering work to those to whom credit is due, and shall recognize the proprietary interests of others. Whenever possible, they shall name the person or persons who may be responsible for designs, inventions, writings, or other accomplishments.” Furthermore, according to category (f) in the guidelines to practice, engineers may advertise professional services, but they must do so “in a way that does not contain misleading language or is in any other manner derogatory to the dignity of the profession.”
In response to the CPC’s notice of a complaint, the two accused members submitted a single written response. The employee engineer acknowledged that he had undertaken the work while employed at Firm One and expressed willingness to amend the website to reflect that former engagement. Nevertheless, he contended that the description of his involvement was not misleading. He stated that he had been the sole engineer on the project and had completed all of the design calculations for the structure, and he pointed out that it was Firm One’s practice to have the principals of the firm sign and seal the documents. Thus, while acknowledging that he had not been the engineer of record on the project, he felt that it was accurate to say he had “designed” the structure.
For his part, the owner of Firm Two stated that he had been a cofounder and co-owner of Firm One. Because of a series of personal and professional disputes, he had left to establish his own firm. He claimed that there was an unsettled dispute between him and his former partners about his share in Firm One; while he had received an equitable portion of the firm’s cash value, he felt that he had not been fairly compensated for the “goodwill” from projects undertaken by Firm One during his time as an owner. He claimed that the project in question was undertaken partly under his direction, and he asserted that the right to advertise the structure was part of the goodwill still owed to him by Firm One.
The CPC reviewed written materials concerning the structure in dispute and conducted telephone interviews with the members as well as with the complainant and others with knowledge of the case. The members of the CPC were not unsympathetic to the members’ claims that they did not believe they had acted unethically. However, the CPC felt that the statements made on the firm’s website created a false impression that the project had been undertaken by Firm Two and that the employee engineer had been in charge of the project. For these reasons it held that the website language violated canon 5.
At the time this case was decided, the CPC’s enforcement actions were governed by a Board of Direction document entitled “Professional Conduct Precepts.” This document stated, in part, that the CPC “shall exercise every means possible to resolve ethical questions and charges of professional misconduct through mediation and measures other than reference to the Executive Committee. Cases shall be referred to the Executive Committee when it is the conclusion of the Committee on Professional Conduct that Executive Committee consideration of disciplinary action is the only appropriate course.”
The members of the CPC felt that the most appropriate way of resolving this issue would be for Firm Two to remove the misleading language from its website. The committee advised the two members of its finding that the website created a false or misleading impression as to the source of the project. However, the CPC stated that it would be willing to close the case if the firm amended its website either to reflect that the engineer’s work had been done for another firm and under the supervision of others or to remove the project entirely. The two members agreed to remove the project from the website, and the CPC voted to close the case without further action.
In 2010 the CPC recommended that the Board of Direction formally incorporate its document “Professional Conduct Precepts” into the Society’s governing documents. The board approved this recommendation, and the section cited here is currently contained in subsection 184.108.40.206 of the Society’s rules of policy and procedure. —TARA HOKE
Members who have an ethics question or would like to file a complaint with the Committee on Professional Conduct may call ASCE’s hotline at (703) 295-6061 or (800) 548-ASCE (2723), extension 6061. The attorneys staffing this line can provide advice on how to handle an ethics issue or file a complaint. Please note that individual facts and circumstances vary from case to case, that some details may have been altered for purposes of illustration or confidentiality, and that the general summary information contained in these case studies is not to be construed as a precedent binding upon the Society.
Tara Hoke is ASCE’s assistant general counsel and a contributing editor to Civil Engineering.
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