By Tara Hoke
It is an unfortunate fact that some of the most compelling ethics complaints received by ASCE’s Committee on Professional Conduct are outside the committee’s reach because they involve individuals who are not ASCE members. While the CPC is unable to take direct action on such matters, they often serve as the basis for case studies and columns like the following, and they are valuable reminders of the importance of ethical conduct for all engineering professionals, regardless of membership status.
Situation
A real estate developer wishes to build residential housing on a tract of vacant commercial buildings, hoping to capitalize on an economic and population boom in one of the southern United States’ fastest-growing suburbs. He contracts with a land development consulting firm to see him through the process — from the initial feasibility and environmental studies through planning and site design, land entitlements, and construction oversight.
Shortly after the contract is signed, the consulting firm’s lead engineer contacts the developer with an update and an offer. The engineer explains that the local zoning authority will require submission of a variety of different traffic-related studies and designs, work that is beyond the scope of services offered by his employers. The engineer notes that he can offer names of traffic engineering consultants who can work on the project, or the engineer himself can provide those services to the developer through a private practice he operates as a side project. While urging the client to seek help elsewhere if he is uncomfortable with this arrangement, the engineer claims he has his employers’ permission to “fill in the gaps” through his solo practice and suggests that his involvement in all aspects of the rezoning process would offer the client greater efficiency and a better cost.
The client agrees to retain the engineer; yet as work proceeds, a billing manager on the developer’s staff raises concerns about what she feels to be a troubling ambiguity about the different contributions each entity is making. She invites the developer to review invoices from the consulting firm and the solo engineer, several of which seem to represent claims of payment for performance of the same work by the same engineer. Viewed together, the overlapping invoices suggest that the client has been overbilled by many thousands of dollars for the engineer’s professional services.
When the developer confronts the engineer about the apparent duplicate billing, he flatly denies any impropriety. The engineer reiterates his claim that the consulting firm did not undertake the type of studies required for the land entitlements, and he explains that the services billed by the firm were administrative in nature, while the more technical work was done in his personal capacity.
Unsatisfied by this answer, the developer next approaches the consulting firm’s principal. The principal agrees that the firm commonly outsources certain types of work and expresses some awareness that his lead engineer was interested in establishing an outside practice; however, he is shocked to learn that the engineer had solicited work from the firm’s own clients for services related to his duties as a firm employee.
The lead engineer is promptly removed from the development project and shortly thereafter leaves the consulting firm entirely. Meanwhile, the developer and the consulting firm negotiate an agreement on payments to resolve any outstanding questions about the disputed services. The developer also submits a complaint to the CPC, claiming that the firm’s former employee had attempted to defraud him into paying twice for the same engineering services.
Question
If this case had involved an ASCE member, would his actions violate the ASCE Code of Ethics?
Discussion
If this case had been submitted under the previous code, the CPC would have found no shortage of language directly applicable to the engineer’s conduct. Canon 4 of the prior code stated that engineers “shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest.”
Consistent with this mandate, the guidelines to Canon 4 described several types of engagements that raised concerns due to inherent conflicts of interest. Guideline b, for example, directed that “Engineers shall not accept compensation from more than one party for services on the same project, or for services pertaining to the same project, unless the circumstances are fully disclosed to and agreed to, by all interested parties.” Guideline g added, “Engineers shall not accept professional employment outside of their regular work or interest without the knowledge of their employers.” Since the engineer in this case had failed to inform his employers of his external engagement on the developer’s project, the CPC might have easily reached the conclusion that his actions violated Canon 4 of the old code.
Reflecting a more moderate approach to today’s complex professional environment, the current code largely abandons its predecessor’s list of precluded conflicts of interest, and moreover, it drops the overall requirement to avoid conflicts of interest in favor of simple disclosure. Section 4b in today’s code, the closest corollary to the old Canon 4, states merely that engineers must “make clear to clients and employers any real, potential, or perceived conflicts of interest.” While this change acknowledges that engineers can ethically offer professional services despite the presence of a conflict of interest, by no means does this suggest that today’s code would sanction the conduct described in this case.
First, with the firm’s principal only vaguely aware of his employee’s desire to take on outside work, it is unlikely that the CPC would believe the engineer had met his obligation to make clear the potential concerns about outsourcing work to himself on one of the firm’s projects. Second, even if the CPC somehow felt that the engineer’s disclosure was adequate, mere disclosure does not give engineers complete freedom to be influenced by personal objectives in their delivery of professional services. Instead, an engineer’s disclosure of “real, potential, or perceived” conflicts of interests should best be understood as only the first step in a process of ensuring that such conflicts do not undermine the engineer’s adherence to all applicable ethical standards.
In an investigation of the engineer’s actions in this case, the CPC might first seek to determine whether the questioned invoices were indeed fraudulent or rather the result of faulty recordkeeping, unclear communication, or other circumstances. If the former, the CPC would almost certainly conclude that the engineer’s conduct violated Section 1d of the current code, which instructs engineers to “have zero tolerance for bribery, fraud, and corruption.”
In the latter case, the CPC might next question whether the engineer had met Section 4a’s instruction to “act as faithful agents of their clients and employers with integrity and professionalism,” or even Section 3a’s reminder to “uphold the honor, integrity, and dignity of the profession.” Even if the case were construed to give the engineer all possible benefit of the doubt, the engineer nevertheless allowed circumstances to arise in which a client could reasonably question the engineer’s billing practices, causing financial loss to his employer and potentially damaging the firm’s relationship with its client. As such, it is likely that the CPC would conclude the engineer had not met his ethical obligation of faithful service to his client or his employer.
Though avoiding conflicts of interest is no longer an ethical mandate, it is nevertheless sound guidance for engineers to err on the side of caution when considering actions that may put their duty of faithful service in conflict with other professional or personal interests. As is often the case in matters of ethics, a reckless or ill-considered action taken in search of short-term gain can all too often result in lasting harm to the engineer’s reputation or professional practice.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the November/December 2025 issue of Civil Engineering.
