Registration—Expressing Professional Opinion Without Being Licensed

Engineering licensure is a fundamental issue relating to the ethical obligation to comply with state engineering licensure laws and regulations as well as the demonstration of professional competency. Engineering licensure has been a subject for Board of Ethical Review examination in the past.

In BER Case 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 is 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 completing the work, Client B learned that Engineer A was not licensed in State X but was licensed in State Y. Engineer A had not obtained any authority to perform the services in State X. Client B then had 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 delay in the construction of his project. In deciding that Engineer A unethically implied that he was licensed in State X and also unethically designed a project for construction in State X without first obtaining a temporary permit from the state licensing board and other appropriate permits, the Board noted that there was no indication that Engineer A ever informed Client B that he was not licensed in State X. The Board believed Engineer A’s failure to provide timely notice to Client B violated NSPE Code of Ethics Section III.3.a. Moreover, under the facts, it appeared that a legitimate question may exist as to whether Engineer A’s representation of himself as a professional engineer in State X may have violated the engineering licensure laws in State X. Since Client B incurred additional expenses and delay in the construction of his project, Engineer A’s actions also compromise and jeopardize the client’s interests, thus violating NSPE Code Section II.4.

More recently, in BER Case 11-3, Engineer A was a professional engineer in private practice in State A. Engineer A performed consulting engineering services for assuring code compliance on a project that was originally designed by a consulting engineering firm based in a province in Canada. Although the Canadian firm’s work met all appropriate engineering code requirements in State A, the work performed by the Canadian firm was not signed and sealed by a professional engineer licensed in State A. Engineer A also discovered that the Canadian firm was not registered in State A to perform engineering services during the design and construction of the project, and that the Canadian firm had also been performing consulting engineering services in State A for a number of years without being properly registered. The Canadian firm’s engineers and the firm were all licensed in the Canadian province in which the firm was based. Engineer A advised the State A engineering licensing board in writing of the unlicensed practice by the Canadian firm. Thereafter, the Canadian firm notified Engineer A, advising Engineer A that he had not acted ethically because he did not first discuss the issue with the Canadian firm but instead filed a written complaint against the Canadian firm. Following its review, the Board determined that while Engineer A had an ethical obligation to take action in connection with the Canadian firm’s apparent violation of the state engineering licensure requirements, under the circumstances, Engineer A should have first advised the Canadian firm of the action Engineer A planned to take. Engineer A should have provided an explanation for taking the action (e.g., Engineer A’s obligation to report under the state engineering licensing law or the Code of Ethics) and also encouraged the firm to self-report.

Turning to the facts in the instant case, while the Board recognizes that Engineer A had an obligation to be licensed in State Y, it is the Board’s view that Engineer C’s reporting of Engineer A to the State Y engineering licensure board may have been motivated more out of commercial pressures than out of concern over protecting the public health and safety. As with BER Case 11-3, in the Board’s opinion, a better course of action would have been for Engineer C to have first advised Engineer A of the actions Engineer C planned to take and provided an explanation for taking the action (e.g., Engineer A’s obligation to report under the state engineering licensing law or the Code of Ethics) and also encouraged Engineer A to self-report.

Finally, without expressing an opinion regarding the legality of Engineer A misrepresenting himself as a professional engineer in State Y, we believe that one possible solution under the facts might have been for Engineer A to explore the option of obtaining a temporary permit from the State Y licensing board should that option exist in State Y.