Engineer A had an affirmative obligation to step forward and immediately advise Attorney X. Since Attorney X was in the middle of negotiations with the defendant’s attorney, which may or may not have resulted in a settlement of the case, this was critically important information for Attorney X to have in his possession.

Professional engineers are frequently called upon and play a critical role as forensic engineering experts in connection with civil litigation. These professional engineers have an ethical responsibility to perform these services with honesty and integrity and to be truthful and honest in their professional reports. Over the years, the NSPE Board of Ethical Review has reviewed a series of issues relating to the important role that engineering experts perform and their obligation to be honest and truthful. One such case was NSPE Board of Ethical Review Case 95-5. In that case, Engineer A was retained by a municipality to design a dock on a supporting foundation of 90 piles. Following construction, there was a contractor’s extra claim and Engineer A and the municipality were both sued by the contractor. The claim was settled by mediation. Engineer A and the municipality shared the cost of the settlement with the contractor for $300,000. During the mediation, the municipality brought in expert witnesses to support their case. One expert testified that the pile driving records indicated that many of the piles did not, at the time of initial driving, meet driving resistance sufficient to satisfy the load carrying requirements of the design calculations. Engineer A testified that the geotechnical firm’s report expected that the piles would gain sufficient additional strength within 30 days to meet driving-resistance requirements. To test this, the municipality retained Engineer B to supervise the driving of several test piles to see whether the piles would gain sufficient strength to meet the design calculation requirements. An independent geotechnical consultant was retained by Engineer A to observe the test. The geotechnical consultant testified and showed that dynamic test equipment had failed during the test and that the test piles were not driven to the same depth of penetration that apparently was required for the plug to form in the original piles. Driving cond...

Engineer A is a professional engineer. Part of Engineer A’s duties is to perform forensic engineering services for attorneys in connection with pending litigation. Engineer A is retained by Attorney X to perform a forensic engineering investigation and prepare a written report in connection with a mechanical product failure, which resulted in extensive injuries to the Attorney’s client. Engineer A conducts the investigation for Attorney X, prepares the written report along with conclusions regarding the cause of the accident, and submits the written report to Attorney X. Attorney X is in the process of settlement negotiations with the defendant’s attorney in the case. Following Engineer A’s investigation and Engineer A submitting the report to Attorney X, but before the settlement negotiations are concluded, Engineer A discovers that the data upon which Engineer A based his report conclusions was inaccurate and that if the more accurate data had been used in his investigation, Engineer A’s conclusions would be different.

What are Engineer A’s ethical obligations under the circumstances?