Misrepresentation—Obligation to Report/Impact on Client

Fundamental to the practice of professional engineering is compliance with state engineering licensure laws. Licensed professional engineers must be scrupulous in adhering to the specific requirements of engineering licensure, including adherence to the provisions of state laws and regulations.

As noted by the NSPE Board of Ethical Review in BER Case No. 93-2, there is a great deal of interest within the engineering community regarding the manner in which engineers in this country are licensed from state to state. Part of the discussion has involved a desire to simplify comity procedures that often create difficult hurdles for engineers to become licensed in multiple states. While regulators have justified these procedures as a method to screen out incompetent practitioners and maintain standards of practice, others have argued that the procedures have the effect of protecting and preserving engineering markets for those already licensed within the state. However, in recent years, many states have implemented expedited comity procedures to allow for greater interstate practice.

The NSPE Board of Ethical Review has addressed ethical issues relating to engineering licensure on a number of occasions. For example, in BER Case No. 90-3, the BER considered a case involving a prominent consulting engineer who was licensed in states 1, 2, and 3, and who had on other occasions performed forensic engineering services in connection with accident reconstruction. The engineer was retained by an attorney in state 4 to prepare a report to determine the actual cause of the accident. The engineer was also asked to express a professional opinion during a trial on matters relating to the safety and design of equipment that may have failed, causing the accident. In deciding that it was not unethical for the engineer to offer testimony in the manner described, the BER noted that engineers who engage in the practice of engineering or who hold themselves out as engineers to the public have a legal, as well as an ethical, obligation to make certain that they are professional engineers licensed in accordance with the laws of the state. While the BER indicated that a determination of this issue must find resolution within each state on a case-by-case basis—depending on the nature of the services provided, the language contained in the state engineering licensure law, and other considerations with respect to the narrow issue of an individual serving as a technical expert—the BER pointed out that, as a general proposition, it was generally acknowledged that a non-licensed individual may be qualified as a technical expert by a court without possessing the minimum legal recognition as demonstrated by a professional license.

In BER Case No. 93-2, Engineer A, a professional engineer with expertise in mechanical systems, was a sole practitioner in a small consulting firm in State X and had a business card indicating that he was a professional engineer. Engineer A was not licensed in State X but was licensed in State Y. The bulk of Engineer A’s work involved work to be constructed in State Y. Client B contacted Engineer A to design a project that would be constructed in State X. After the work was completed, Client B learned that Engineer A was not licensed in State X but was licensed in State Y. Client B was then required to have another engineer either redesign the project or carefully review Engineer A’s work before sealing it. As a result, Client B incurred additional expenses and delays in the construction of his project. In deciding that Engineer A’s actions were unethical, the BER noted that Engineer A’s failure to provide timely notice to Client B was a violation of the NSPE Code of Ethics Section III.3.a. Moreover, under the facts, it appeared that a legitimate question existed as to whether Engineer A’s representation of himself as a professional engineer in State X was a violation of the engineering licensure laws in the state. Since Client B incurred additional expenses and delays in the construction of his project, Engineer A’s actions compromised and jeopardized the interests of the client in violation of NSPE Code Section I.4.

Turning to the facts in the present case, the issues here require a balancing of the multiple considerations at stake in this matter regarding Engineer A’s obligation to report violations of the state engineering licensing law as well as Engineer A’s duty of loyalty to both Attorney B and Client C. As with many ethical issues, there must be a consideration of the practical implications of taking immediate action as opposed to delaying action in light of pending events. To paraphrase the Hippocratic Oath, an ethical oath subscribed to by physicians, the duty of every professional is first, to do no harm. In the context of the present case, in view of the fact that there does not appear to be an imminent harm in Engineer A’s failure to take immediate action in reporting Engineer D’s misrepresentation to state authorities, it is the BER’s view that it would be appropriate in serving the best interests of Engineer A’s client to refrain from reporting the misrepresentation to the state authorities since the violation has been resolved. While the BER takes seriously Engineer D’s misrepresentation, a balance must be struck between the multiple considerations.