It was unethical for Engineer A to notify clients of Engineer B that Engineer A was planning to start a firm and would appreciate being considered for work while still in the employ of Engineer B. It was not unethical for Engineer B to distribute a previously printed brochure listing Engineer A as a key employee provided Engineer B apprised the prospective client during the negotiation of Engineer A's pending termination. It was unethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination.

The case presented before the Board raises a number of significant points that have heretofore not been specifically addressed. In BER Case 77-11, the Board ruled that four engineers who founded a new firm did not violate the Code of Ethics by generally seeking work from former clients of their previous employer, but were in violation of the Code with regard to projects for which they had particular knowledge while working for their former employer. Although at first glance the facts in Case 77-11 appear to be quite similar to the instant case, they are distinguishable on two very important points: (l) In the instant case Engineer A notified "current" and not former clients of Engineer B and offered professional services to them. (2) Engineer A was still employed by Engineer B when Engineer A notified the clients and others of the offer of professional services. We are therefore now asked to decide whether one engineer in the employ of another who is aware of a pending termination may ethically contact "current" clients of an employer and offer professional services to the client without informing the employer. An engineer is expected to act, at all times in professional matters for the employer, as a faithful agent and trustee (Section I.4.). That requires the engineer to recognize both a duty of loyalty and good faith. An essential aspect of those is the duty to disclose. Certainly it is not possible for an engineer to meet those obligations to the employer if the engineer is engaging in such promotional activity to the employer's detriment. We do not mean to suggest than an employee who severs all ties with the employer and then seeks to contact clients of the employer in order to offer engineering services is in violation of the Code. To the contrary, those were the facts of Case 77-11 and that case remains a proper interpretation of the Code. Nor do we wish to suggest any restraint exists upon one's absolute right to select in all cases, the engineer of one's ...

Engineer A worked for Engineer B. On November 15, 1982 Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work. Engineer A thereupon notified clients of Engineer B that Engineer A was planning to start another engineering firm and would appreciate being considered for future work. Meanwhile, Engineer A continued to work for Engineer B for several additional months after the November termination notice. During that period, Engineer B distributed a previously printed brochure listing Engineer A as one of Engineer B's key employees, and continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A.

Was it ethical for Engineer A to notify clients of Engineer B that Engineer A was planning to start a firm and would appreciate being considered for future work while still in the employ of Engineer B? Was it ethical for Engineer B to distribute a brochure listing Engineer A as a key employee in view of the fact that Engineer B had given Engineer A a notice of termination? Was it ethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination?