Professional Ethics & Forensic Engineering

By Rick Abbott PE SE

This article is intended for our clients, owners, and contractors to read and understand why professional engineers are required to do certain things regarding sharing of information during and after a forensic engineering inspection.

Introduction

The National Society of Professional Engineers (NSPE) is an organization that helps in the development of engineers. Engineers are required to obtain licenses to practice in individual states of the USA. Each state has a Board of Engineering that controls licensing. The requirements needed to practice Professional Engineering is slightly different in some states, but most follow the general steps listed below:

  1. Engineers are required to prove that they have education from an accredited school of engineering or equal, and have successfully obtained a BS degree in engineering.
  2. Engineers are required to pass the Fundamentals of Engineering exam (FE) administered by the National Council of Examiners for Engineering and Surveying (NCEES).
  3. After passing the FE exam, engineers are required to obtain 4 years of engineering experience working under the direct supervision of a Professional Engineer (PE).
  4. After obtaining the education and experience, an engineer can take the Professional Engineering examination.
  5. After passing the professional exam, an engineer can normally apply to a State Board of Engineering to obtain the designation of Professional Engineer (PE).

The NSPE has a publication entitled, “Code of Ethics for Engineers”. This document is designed to guide the professional engineer in an ethical matter. https://www.nspe.org/

The NSPE Board of Ethical Review (BER) uses the Code of Ethics to produce opinions and decide cases of ethical misconduct.

The NSPE Code of Ethics have been thoroughly tested and refined over the years. In regards to forensic engineering, the following sections of the Code seem to have a more significant application in forensic engineering compared to other areas of practice. The following code sections are discussed under headings of frequently asked questions.

Why Are Hazard Condition Letters Issued?

Section II.1.a - NSPE Code of Ethics:
“1. Engineers shall hold paramount the safety, health, and welfare of the public.
a. If engineers’ judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate.”

This is the first and paramount canon of the Engineering Code of Ethics. Under this section, if there is a life safety concern when investigating a property, the forensic engineer must make sure that the life safety concern is adequately addressed. As a minimum, the owner and anyone one that could be harmed by the unsafe condition must be made aware of the problem. Other steps may be needed depending on the circumstances.

Forensic engineering is unique in that many of the properties under investigation might be at a state of damage. Certainly, not all damaged structures require the issuing of a formal hazardous condition letter, but some do.

Why will the engineer not share his thoughts while he is inspecting my property?

Section II.1.c.-NSPE Code of Ethics:
"Engineers shall not reveal facts, data, or information obtained in a professional capacity without the prior consent of the client or employer except as authorized or required by law or this Code."

Without forming a complete understanding of the issues, it is most often a mistake to voice conclusions that have not been adequately tested or finalized. It is not prudent to reveal facts to soon. A conclusion given in haste could end up being incorrect or stated poorly.

Forensic engineers are obligated to provide the data, analysis, and conclusions to their client. The client is often not the property owner. Once the information is given to the client, that client may choose to share the information to the owner.

It is not the obligation of the engineer to share information with a property owner, unless it is a life safety issue. In fact, it is the obligation of the engineer to refrain from sharing information with anyone other than the client without prior consent. Doing so is an ethical mistake, a violation of the NSPE Code of Ethics, and could be punishable by the BER.

Why can’t I get a copy of the report from the Engineer? I will pay for it.

Section II.4.b
"Engineers shall act in professional matters for each employer or client as faithful agents or trustees.
Engineers shall not accept compensation, financial or otherwise, 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 and agreed to by all interested parties.”

Once an assignment is accepted, and information is shared, a client relationship is formed. Special knowledge is obtained through accepting of an assignment, the inspection, and review of the information. Even if a final opinion is not formed, it is difficult to work for someone else other than the initial client on the same project without violation of this rule.

Without consent of the client, findings, either written or verbal, should not be shared for free or for pay. For this reason, it is Abbott Consulting’s policy not to share project information (verbally or written) with anyone else except the client.

The engineer has bias based on being paid for services. Yes?

Section II.3.a
3. Engineers shall issue public statements only in an objective and truthful manner.
a. Engineers shall be objective and truthful in professional reports, statements, or testimony. They shall include all relevant and pertinent information in such reports, statements, or testimony, which should bear the date indicating when it was current.

The answer to this question is “No, the engineer is not bias based on payment”.

Someone needs to pay for the engineer’s time and material, but it should never influence the outcome of the forensic investigation. Under this section, the engineer must be objective and truthful in all work. The engineer is not obtained to give a pre-determined answer. For this reason, the scope of work must be stated in a clear and concise manner as not to bias the results.

A forensic engineering assignment normally follows a path that is accepted prior to the initiation of the work. The following is a typical path of a forensic investigation.

  1. Define a scope of work in a simple short question. (i.e. Is the roof damaged by hail?)
  2. Gather information stage: an inspection is conducted. Data is researched.
  3. Analysis stage: facts are organized and reviewed. Conclusions are drawn and tested.
  4. Reporting stage: the findings are reported in written and/or verbal format to the client.

Is the engineer out solely for the client’s welfare?

Section III.3.a
3. Engineers shall avoid all conduct or practice that deceives the public.
a. Engineers shall avoid the use of statements containing a material misrepresentation of fact or omitting a material fact.

The answer to this question is: “Yes and no, the engineer has a client relationship that should result in a beneficial relationship, but the engineer is obligated to conduct himself ethically above the relationship and uphold truth, and the welfare of the public.

Everyone has a constitutional right to an attorney whether that party is responsible for damage or not. For example, a contractor that accidentally damages a property would need an attorney in a law suit. It is unethical by any Code of Ethics to free a guilty party of any responsibility when they are clearly, without any doubt, guilty of wrong doing. Ethically, that contractor would be responsible for the damage, but the contractor should still have representation and expert witness testimony that is beneficial to their case. The contractor might owe 10,000 in damages, but not 50,000. They may need to pay restitution and be punished, but within limits. They need representation. They need expert witnesses that supports their case despite being guilty.

It is not the job of an engineer to be a lawyer. An engineer is obligated to include material facts that support their conclusion, opinions, and statements. It is not the engineer’s job to defend the lawyer’s client. It is the engineer’s job to answer questions of science and present them in understandable ways.

Some might suggest that an engineer must always be on the side of right. This is obviously not true. The rules of ethics demand that an engineer must not misrepresent the facts. Based on the facts, the engineer must present answers to specific questions without misrepresentation of fact or omitting material fact. This would be deceptive.

If the original scope of work is “what is damaged and why” the report should answer that question and include all facts that support the engineer’s conclusion. Leaving out evidence that clearly shows another more likely cause, or elevating non-relevant evidence to support a weaker conclusion considering a more probable conclusion exist would be deceptive, extremely dishonest and unethical.

Through conversations, it may become clear that the engineer’s findings do not support the lawyer’s case or the direct the lawyer wants to go. The engineer and lawyer may need to part ways without the issuing of a report. That engineer cannot be hired by the opposing lawyer since a client relationship had been formed. It would be a violation of the NSPE Code of Ethics.

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