Conflict of Interest - Expert Witness for Contractor

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Created
2026-02-13 21:36
Updated
2026-02-13 21:36
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It would not be ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances.

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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...

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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.

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Created
2026-02-13 21:36
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2026-02-13 21:36
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Is it ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances?
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D-tuple Component Breakdown

33

Total Entities

9/9

Components Populated

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Combined Embedding
Roles R
w=0.12 384D
Engineer A Failure Study Consultant
Retained by the U.S. government to study the causes of a dam failure on the project.
Engineer A Contractor Claim Engineer
Later retained by the contractor on the same project in connection with the contractor's claim against the U.S....
U.S. Government Client
Retained Engineer A to study the causes of the dam failure and is the party against whom the contractor has filed a...
Engineer A Expert Witness
The Board finds that Engineer A's retention as an expert witness for the contractor in its claim against the U.S....
Board of Ethical Review Adjudicator
Reviews Engineer A's conduct against the revised Code of Ethics, distinguishes prior Case 76-3 as decided under the...
Contractor Claimant
The contractor filed a claim against the U.S. government for additional compensation and retained Engineer A as an...
6 entities
Principles P
w=0.2 384D
Confidentiality of Former Client Knowledge
The Board reasons that Engineer A's expert opinions for the contractor, based on his firsthand knowledge and...
Adverse Interest Consent in Contractor Claim
The Board finds a violation of Section III.4.b because nothing in the record indicates that Engineer A obtained the...
2 entities
Obligations O
w=0.15 384D
Engineer A Adverse Interest Consent Duty
Engineer A must obtain the consent of all interested parties, including his former client the U.S. government,...
Engineer A Government Confidentiality Duty
Engineer A must protect the confidential facts, data, and information concerning the causes of the dam failure...
2 entities
States S
w=0.1 384D
Successive Adverse Retention Conflict
Confidential Government Knowledge Held
Dam Failure Study Knowledge
Pending Contractor Compensation Claim
Government Retention Ended
Missing Government Consent
Section III.4.b Violation
7 entities
Resources Rs
w=0.1 384D
BER Case 76-3
BER Case 76-3 (topic: engineer serving as expert witness for a party adverse to a government client while retained...
NSPE Code of Ethics 1981 Revision
Code of Ethics (topic: representing an adversary interest in a proceeding involving specialized knowledge gained...
1976 Code of Ethics
1976 Code of Ethics (topic: professional conduct rules in force when Case 76-3 was decided, before the adverse...
3 entities
Actions A
w=0.1 384D
Code Revision Adoption
Government Retainer Acceptance
Compensation Claim Filing
Adverse Expert Retention Acceptance
4 entities
Events E
w=0.08 384D
Dam Failure
Retainer Termination
Revised Code Effectivity
3 entities
Capabilities Ca
w=0.07 384D
Engineer A Expert Testimony
Engineer A, retained as an expert witness by the contractor in its claim against the U.S. government, would be...
Engineer A Project Specialized Knowledge
Engineer A gained particular, specialized knowledge of the dam failure project on behalf of his former client the...
Engineer A Engineering Analysis
Engineer A exercises engineering analysis competence in the study of the causes of the dam failure for the U.S....
Board Precedent Reasoning
The Board compares the instant case to Case 76-3, notes the striking factual similarity, and distinguishes it...
4 entities
Constraints Cs
w=0.08 384D
Engineer A Dam Study Confidentiality
Engineer A must not disclose or use, for the benefit of the contractor's claim against the U.S. government, the...
Engineer A Adverse Retention Without Consent
Engineer A must not accept retention by the contractor whose claim against the U.S. government is adverse to...
2 entities
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