It would not be ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances.

The issue presented here was in many ways addressed by this Board in Case 76-3. In that case an engineer, under a retainer agreement with a county to provide water sewage design and expertise, and general advisory services, entered into a second retainer agreement with a developer with county approval. Thereafter, the developer filed a petition with the zoning board to rezone a substantial area of the county for commercial purposes. The county department filed several engineering reports adverse to the zoning petition, recommending denial of the rezoning because the proposed construction would overload available water sewage facilities. The development company then called the engineer as an expert witness at the zoning hearing. The engineer testified in support of the zoning petition. There we noted that when the engineer appeared before the body which had jurisdiction over the subject matter on behalf of a party whose position was adverse to that of the government while at the same time being an advisor to the government, he at best gave the appearance of trying to be on both sides of a public policy issue. We added that it would be incorrect to accept the engineer's role as an expert witness in the ordinary sense of that kind of professional service arrangement. The engineer was doing more than offering his expertise in engineering matters as an aid to a fuller understanding by the tribunal; he was in fact a paid advocate of a private interest in open conflict with the engineering opinions of the government. We noted that although the engineer was not required to agree with the government or even support its position at the hearing, if he chose to oppose that position on behalf of an adverse party, he could ethically do so by first resigning from his role as advisor to the county. The facts presented in the instant case are strikingly similar to those presented in Case 76-3 with one exception. Under the facts of this case, Engineer A was paid in full for his serv...

Engineer A is retained by the U.S. government to study the causes of a dam failure. Later Engineer A is retained by the contractor on this project, who has filed a claim against the U.S. government for additional compensation.

Is it ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances?