It was unethical for Engineer A to agree to provide a separate engineering and safety analysis report.

The facts of this case raise a number of issues pertinent to various provisions of the Code of Ethics. However, before this Board examines those several Code provisions, we think it would be appropriate to examine earlier BER decisions relating to the issues present here. In BER Case 76-3, a decision involving an engineer appearing as an expert witness for a private development company before a county board while serving as a paid consultant to the county, this Board noted that the Code of Ethics requires an engineer to endeavor to avoid a conflict of interest: "When Engineer A was approached, while still on retainer to the county, by the development company, it should have been quite clear to him that a conflict of interest was inevitable." It seemed in that case that a little interrogation of the development company concerning its plans would have revealed the conflict of interest. Under the facts of the case, Engineer A's role as an expert witness in the ordinary sense of that kind of professional arrangement would be unacceptable. Engineer A was doing more than offering his expertise in engineering matters as an aid to a fuller understanding by the county board; he was in fact a paid advocate of a private interest in open conflict with the engineering opinions of the county engineers. In BER Case 76-3, this Board distinguished that case from earlier BER Case 74-2 in which the Board held that a part-time consultant arrangement to municipalities by engineers in private practice did not preclude those same engineers from providing normal engineering service to the same municipalities. We then noted that the key distinction between BER Case 74-2 and BER Case 76-3 was that in BER Case 74-2 the engineer's loyalties were not divided, whereas in BER Case 76-3 Engineer A is seen to be on both sides of the divided issue. More recently in BER Case 82-2, a decision involving an engineer who prepared a home inspection report for a client, a potential home purchaser, and ...

Engineer A is a forensic engineer. He is hired as a consultant by Attorney Z to provide an engineering and safety analysis report and courtroom testimony in support of a plaintiff in a personal injury case. Following Engineer A's review and analysis, Engineer A determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff because the results of the report would have to suggest that the plaintiff and not the defendant was at fault in the case. Engineer A's services are terminated and his fee is paid in full. Thereafter, Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case and seeks to retain Engineer A to provide an independent and separate engineering and safety analysis report. Engineer A agrees to provide the report.

Was it ethical for Engineer A to agree to provide a separate engineering and safety analysis report?