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Conflict of Interest - Expert Witness for Contractor
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Provisions

1

Precedents

13

Questions

15

Conclusions

Phase Lag

Transformation
Phase Lag Delayed consequences reveal obligations not initially apparent
A dormant confidentiality obligation from an earlier government engagement resurfaces and becomes ethically operative only when a subsequent, unrelated-in-time adverse retention (the contractor's claim) triggers the Adverse Interest Consent requirement; the original action (government retainer) and the ethical consequence (disqualification from expert witness role) are separated by a temporal gap during which the obligation lies latent.
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Synthesis Reasoning Flow
Shows how NSPE provisions inform questions and conclusions - the board's reasoning chain

The board's deliberative chain: which code provisions informed which ethical questions, and how those questions were resolved. Toggle "Show Entities" to see which entities each provision applies to.

Nodes:
■ Provision (e.g., I.1.) ◆ Question: Board = board-explicit, Impl = implicit, Tens = principle tension, Theo = theoretical, CF = counterfactual ▬ Conclusion: Board = board-explicit, Resp = question response, Ext = analytical extension, Synth = principle synthesis ▬ Entity (hidden by default)
Edges:
→ informs → answered by → applies to
Provisions (1)
View Extraction

All provisions in play for this case: the union of board-stated references and analysis-found citations (see each provision's provenance badge). The OntServe case page's Cited NSPE Provisions panel shows the subset actually cited by the committed conclusions, so its count can be lower.

III.4.b board + analysis Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained particular specialized knowledge on behalf of a former client or employer.
How this applies in the case (showing 3 of 25)
Obligation
Engineer A Adverse Interest Consent Duty
This provision directly requires consent of all interested parties before representing an adverse interest using specialized knowledge from a former client.
Action
Adverse Expert Retention Acceptance
Accepting a role adverse to a former client on a related matter without consent directly violates this provision
State
Successive Adverse Retention Conflict
This provision directly prohibits representing an adverse interest against a former client as occurred here
Obligation (2)
  • Engineer A Adverse Interest Consent Duty
    This provision directly requires consent of all interested parties before representing an adverse interest using specialized knowledge from a former client.
  • Engineer A Government Confidentiality Duty
    This provision relates to protecting information gained from a former client that underlies the adverse interest restriction.
Action (2)
  • Adverse Expert Retention Acceptance
    Accepting a role adverse to a former client on a related matter without consent directly violates this provision
  • Government Retainer Acceptance
    Accepting a prior government retainer establishes the specialized knowledge and client relationship that later creates the conflict addressed by this provision
State (7)
  • Successive Adverse Retention Conflict
    This provision directly prohibits representing an adverse interest against a former client as occurred here
  • Government Retention Ended
    The provision applies to knowledge gained on behalf of a former employer after the relationship has ended
  • Confidential Government Knowledge Held
    The provision addresses use of specialized knowledge gained on behalf of a former client
  • Section III.4.b Violation
    This is the direct citation of the violated provision
  • Dam Failure Study Knowledge
    This specialized knowledge from the former engagement is the basis for the conflict addressed by the provision
  • Pending Contractor Compensation Claim
    The provision governs participation in the specific proceeding where adverse interests are represented
  • Missing Government Consent
    The provision requires consent of all interested parties which was absent in this case
Constraint (2)
  • Engineer A Adverse Retention Without Consent
    This provision directly prohibits Engineer A from representing an adversary interest without consent from the former client.
  • Engineer A Dam Study Confidentiality
    This provision restricts use of specialized knowledge gained from the former client which underlies the confidentiality constraint.
Principle (2)
  • Confidentiality of Former Client Knowledge
    The provision restricts using specialized knowledge gained from a former client against them without consent
  • Adverse Interest Consent in Contractor Claim
    The provision directly requires consent from the former client before representing an adverse interest which was not obtained here
Role (3)
  • Engineer A Failure Study Consultant
    This role represents the former client relationship that created the specialized knowledge governed by the provision
  • Engineer A Contractor Claim Engineer
    This role represents the adversarial engagement that directly triggers the provisions prohibition
  • Engineer A Expert Witness
    The Board explicitly finds this role violated Section III.4.b by representing an adversary interest without consent
Event (1)
  • Retainer Termination
    This provision addresses conflicts arising when representing adverse interests after ending a prior client relationship
Resource (3)
  • BER Case 76-3
    This provision directly governs the adverse interest scenario decided in BER Case 76-3
  • NSPE Code of Ethics 1981 Revision
    This provision is the specific adverse interest rule found in the 1981 Code revision
  • 1976 Code of Ethics
    This provision did not yet exist in the 1976 Code which governed Case 76-3 at the time
Capability (3)
  • Engineer A Project Specialized Knowledge
    The provision directly addresses use of specialized knowledge gained on behalf of a former client without consent
  • Engineer A Expert Testimony
    Serving as expert witness against the former client represents the adversarial role the provision prohibits without consent
  • Engineer A Engineering Analysis
    The analysis performed for the government forms the specialized knowledge base later used in an adversarial capacity
Cross-Case Connections
View Extraction
Explicit Board-Cited Precedents 1

Cases explicitly cited by the Board in this opinion. These represent direct expert judgment about intertextual relevance.

Principle Established:

An engineer who advises a government body may not simultaneously act as a paid advocate/expert witness for a private party with an adverse position on the same matter without first resigning from the advisory role, though under the 1976 Code there was no explicit bar on representing an adverse interest after the engagement ended.

Citation Context:

The Board cited this prior case as a closely analogous precedent involving an engineer who served as an advisor to a government body while also acting as an expert witness for a private party with an adverse position, establishing the general principle against representing conflicting interests without first withdrawing from the prior engagement. The Board then distinguished it because it was decided under the older 1976 Code, which lacked the specific consent requirement now found in Section III.4.b., so its outcome did not directly control the present case.

Relevant Excerpts
discussion: "The issue presented here was in many ways addressed by this Board in Case 76-3."
discussion: "The facts presented in the instant case are strikingly similar to those presented in Case 76-3 with one exception."
discussion: "Case 76-3 was decided under the 1976 Code of Ethics which made no mention of an engineer's ethical obligation to refrain from representing an adverse interest in a proceeding."
Implicit Similar Cases 10 Similarity Network

Cases sharing ontology classes or structural similarity. These connections arise from constrained extraction against a shared vocabulary.

Component Similarity 69% Facts Similarity 58% Discussion Similarity 69% Provision Overlap 25% Outcome Alignment 100% Tag Overlap 25%
Shared provisions: III.4.b Same outcome unethical View Synthesis
Component Similarity 62% Facts Similarity 45% Discussion Similarity 53% Outcome Alignment 100% Tag Overlap 50%
Same outcome unethical View Synthesis
Component Similarity 59% Facts Similarity 54% Discussion Similarity 43% Outcome Alignment 100% Tag Overlap 20%
Same outcome unethical View Synthesis
Component Similarity 62% Facts Similarity 60% Discussion Similarity 53% Provision Overlap 50% Tag Overlap 33%
Shared provisions: III.4.b View Synthesis
Component Similarity 56% Facts Similarity 49% Discussion Similarity 30% Outcome Alignment 100% Tag Overlap 33%
Same outcome unethical View Synthesis
Component Similarity 56% Facts Similarity 51% Discussion Similarity 46% Outcome Alignment 100% Tag Overlap 25%
Same outcome unethical View Synthesis
Component Similarity 54% Facts Similarity 61% Discussion Similarity 56% Outcome Alignment 100% Tag Overlap 25%
Same outcome unethical View Synthesis
Component Similarity 56% Facts Similarity 51% Discussion Similarity 47% Outcome Alignment 100% Tag Overlap 12%
Same outcome unethical View Synthesis
Component Similarity 56% Facts Similarity 51% Discussion Similarity 50% Outcome Alignment 100% Tag Overlap 12%
Same outcome unethical View Synthesis
Component Similarity 58% Facts Similarity 55% Discussion Similarity 57% Outcome Alignment 100%
Same outcome unethical View Synthesis
Questions & Conclusions (1 board)
View Extraction
Board Board question 1

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

Board conclusion It would not be ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances.
Resolved by: The Board weighed the contractor's interest in obtaining a knowledgeable expert against the government's confidentiality and loyalty interests, and found the latter controlling absent consent. (confidence 0.85)
III.4.b. 2 principles 3 facts Conditions Narrative
Implicit (4)

Would Engineer A's retention as an expert witness for the contractor become ethically permissible if the U.S. government explicitly consented to the arrangement?

AnalyticalRegarding Q101 and Q401: explicit consent from the U.S. government would likely change the ethical calculus entirely. Section III.4.b conditions the propriety of representing an adverse interest on the consent of all interested parties. If the government affirmatively consented to Engineer A's retention by the contractor, the core violation identified by the Board—acceptance of an adverse role without consent—would be cured, and the arrangement would likely be permissible even though Engineer A retains specialized knowledge from the dam failure study.
Resolved by: The Board weighed the value of government consent as curing the consent-based violation against the residual concern over specialized knowledge, concluding consent would likely resolve the core ethical problem. (confidence 0.75)
III.4.b. 2 principles 3 facts Conditions Narrative

Does the termination of Engineer A's retainer with the government fully extinguish his confidentiality obligations regarding knowledge gained during the dam failure study?

AnalyticalThe termination of Engineer A's retainer with the government (Retainer Termination) does not cure the ethical problem, because the Board treats confidentiality and loyalty obligations arising from a former client relationship as surviving the formal end of the engagement. The critical fact is not whether the retainer was active when the contractor sought Engineer A's services, but whether Engineer A possesses specialized knowledge obtained through that relationship that is directly relevant to a claim adverse to the former client's interests. This suggests the Board's holding would likely extend even to situations where significant time has passed since the retainer ended, so long as the knowledge remains materially relevant.
Resolved by: The Board weighed the formal termination of the engagement against the continuing relevance of confidential knowledge, finding the latter controlling over the former. (confidence 0.80)
III.4.b. 1 principle 3 facts Conditions Narrative
AnalyticalRegarding Q102: termination of Engineer A's retainer with the government does not extinguish his confidentiality obligations. The duty of confidentiality attaches to knowledge gained during the professional relationship and survives the end of the retainer itself; only the active advisory relationship ends, not the ethical obligation to protect information and knowledge acquired in confidence during that relationship.
Resolved by: The board weighed Engineer A's interest in being free of past-client restrictions once the retainer ended against the government's interest in continued protection of information disclosed in confidence, favoring the latter. (confidence 0.85)
2 principles 3 facts Conditions Narrative

Is it the specialized knowledge itself, independent of any confidential information, that disqualifies Engineer A from serving as an adverse expert witness?

AnalyticalThe Board's conclusion rests on a per se disqualification rule: once Engineer A gains specialized, non-public knowledge of the dam failure while under retainer to the U.S. Government, the mere structural possibility that this knowledge could benefit the contractor's adverse claim is sufficient to bar the subsequent engagement, regardless of whether Engineer A actually discloses or exploits any confidential information. This means the ethical violation is grounded in the appearance and risk of impropriety created by the successive adverse retention itself, not in any demonstrated misuse of facts, which is a stricter standard than a case-by-case harm analysis would require.
Resolved by: The Board treated the mere possibility of benefit from privileged knowledge as outweighing the need for proof of actual harm, adopting a risk-based rather than harm-based standard. (confidence 0.75)
III.4.b. 2 principles 3 facts Conditions Narrative
AnalyticalRegarding Q103: it is not merely the possession of confidential information that disqualifies Engineer A, but the specialized knowledge itself gained through the privileged government engagement. Even absent proof that Engineer A discloses or uses specific confidential facts, his acceptance of an adverse role creates an appearance of impropriety and a structural conflict of interest, because his expert opinions for the contractor would necessarily be informed by insights developed while serving the government's interests.
Resolved by: The board weighed the absence of proof of actual disclosure against the structural risk that expert opinions would inevitably be shaped by privileged insight, giving greater weight to the structural conflict and appearance of impropriety. (confidence 0.85)
III.4.b. 2 principles 3 facts Conditions Narrative

How does the timing of the 1981 Code revision, which added the adverse interest consent provision after Case 76-3 was decided, affect the applicability of that precedent to Engineer A's situation?

AnalyticalBecause the Board's reasoning is grounded in the Adverse Interest Consent principle codified after Case 76-3, the outcome is contingent on the applicable Code version. Had the 1976 Code of Ethics still governed, lacking any explicit adverse-interest consent requirement, the Board might have had to rely on broader, less specific loyalty and confidentiality principles rather than a direct textual provision, potentially producing a less clear-cut or differently reasoned conclusion, even if the ultimate result was the same.
Resolved by: The Board weighed reliance on an explicit textual consent provision against reliance on more general loyalty and confidentiality principles, favoring the explicit provision as the governing basis given the applicable Code version. (confidence 0.70)
III.4.b. 1 principle 3 facts Conditions Narrative
AnalyticalRegarding Q104 and Q403: because Case 76-3 was decided under the 1976 Code, which lacked the adverse interest consent provision later codified in the 1981 revision, that precedent's reasoning likely relied on general confidentiality and loyalty principles rather than the explicit consent requirement now found in Section III.4.b. If the 1976 Code still governed the present case, the Board might have had to construct its unethical conclusion solely from broader duties of confidentiality and loyalty to a former client, without the benefit of a codified consent mechanism, but the outcome would likely remain the same given the clear successive adverse retention.
Resolved by: The board weighed reliance on a specific codified consent requirement against reliance on general, uncodified confidentiality and loyalty duties, concluding the general duties alone would likely support the same result. (confidence 0.70)
III.4.b. 2 principles 3 facts Conditions Narrative
Principle tension (2)

How should the principle of Confidentiality of Former Client Knowledge be balanced against the Adverse Interest Consent in Contractor Claim when the contractor's claim depends on the same technical facts Engineer A studied for the government?

AnalyticalThe case resolves the tension between Confidentiality of Former Client Knowledge and Adverse Interest Consent in Contractor Claim not through balancing but through subordination: consent is treated as a threshold gatekeeping requirement that must be satisfied before any adverse retention can even be considered, rather than as one factor to be weighed against the potential benefits of the contractor's claim. Because the U.S. government's consent was never sought or given, the Board never reached a substantive balancing test of whether confidential information was actually likely to be used; the absence of consent alone was sufficient to render the retention unethical, showing that in successive-representation conflicts the Code prioritizes procedural safeguards (consent) over case-by-case harm assessment.
Resolved by: Rather than balancing the contractor's potential benefit against the risk of disclosure, the board subordinated that balancing entirely to the prior procedural requirement of consent. (confidence 0.80)
III.4.b. 2 principles 3 facts Conditions Narrative
AnalyticalThe interaction between these two principles also clarifies prioritization across time: termination of the government retainer (Retainer Termination, Government Retention Ended) does not dissolve the confidentiality obligation, meaning Confidentiality of Former Client Knowledge persists as a standing constraint even after the underlying professional relationship ends, while Adverse Interest Consent in Contractor Claim becomes the operative mechanism for resolving any future adverse engagement. The two principles are therefore sequential rather than competing: confidentiality survives indefinitely as a background duty, and consent is the sole permissible mechanism for overriding it when a new, adverse engagement arises.
Resolved by: The board sequenced the two principles rather than weighing them against each other, treating confidentiality as a persisting background duty and consent as the sole mechanism for overriding it later. (confidence 0.75)
III.4.b. 2 principles 3 facts Conditions Narrative

Does the Adverse Interest Consent in Contractor Claim principle require Engineer A to seek consent from the government before accepting the contractor's retention, and does failing to do so automatically violate the Confidentiality of Former Client Knowledge principle even without proof that confidential information was actually used?

AnalyticalThis case teaches that specialized knowledge gained from a former client creates an ethical disqualification independent of proof that confidential information was disclosed or exploited. The principle of Confidentiality of Former Client Knowledge operates prophylactically: the mere fact that Engineer A possesses Dam Failure Study Knowledge obtained while serving the government is enough to trigger the Adverse Interest Consent requirement, regardless of whether the contractor's claim would actually require Engineer A to reveal government confidences. This suggests that in professional engineering ethics, the appearance and structural risk of conflict is itself the harm to be prevented, not merely the actual misuse of information.
Resolved by: The board prioritized the structural risk created by possession of specialized knowledge over any requirement to prove actual disclosure or exploitation of that knowledge. (confidence 0.80)
III.4.b. 2 principles 3 facts Conditions Narrative
Also discussed in: C303
Theoretical (3)

From a deontological perspective, did Engineer A fulfill their duty of confidentiality owed to the U.S. government when accepting a subsequent retention by the contractor?

AnalyticalRegarding Q301 (deontological perspective): Engineer A arguably failed to fulfill the duty of confidentiality and loyalty owed to the U.S. government as a former client. A deontological framework emphasizes that professional duties, once established, persist independent of consequences; accepting an adverse retention without first securing government consent violates this duty regardless of whether Engineer A intended to misuse any information.
Resolved by: The board treated the duty to the former client as a fixed obligation not contingent on outcomes, so no countervailing benefit to the contractor could offset the failure to obtain consent. (confidence 0.80)
III.4.b. 2 principles 3 facts Conditions Narrative

Did the potential benefit to the contractor's compensation claim justify the consequentialist risk of Engineer A disclosing or exploiting confidential government knowledge gained during the dam failure study?

AnalyticalRegarding Q302 (consequentialist perspective): even if Engineer A did not actually disclose confidential information, the potential harm to the government's interests and to public trust in the engineering profession outweighs any benefit to the contractor's claim. The risk of perceived or actual misuse of privileged knowledge undermines confidence in expert testimony and in engineers' handling of successive client relationships, justifying the Board's conclusion on consequentialist as well as deontological grounds.
Resolved by: The board weighed the contractor's potential gain from Engineer A's testimony against the broader risk to public trust and the government's interests, finding the latter more weighty even without proof of harm. (confidence 0.75)
2 principles 3 facts Conditions Narrative

Did Engineer A act with professional integrity when accepting the contractor's retention as an expert witness without first securing the U.S. government's consent to the adverse role?

AnalyticalRegarding Q303 (professional integrity): Engineer A did not act with full professional integrity by accepting the contractor's retention without first seeking the government's consent. Integrity in this context requires proactively addressing foreseeable conflicts of interest rather than merely avoiding demonstrable misconduct; the failure to seek consent itself represents a lapse in professional judgment, independent of whether any confidential information was later used.
Resolved by: The board treated the duty to seek consent as outweighing any claim that integrity was preserved simply by avoiding actual misuse of confidences. (confidence 0.85)
III.4.b. 2 principles 3 facts Conditions Narrative
Counterfactual (3)

If the U.S. government had explicitly consented to Engineer A's later retention by the contractor, would the Board still have concluded that the arrangement was unethical?

Also discussed in: C201

If Engineer A's government retainer to study the dam failure had not yet ended when the contractor sought to retain him, would the Board's conclusion about the conflict still apply in the same way?

AnalyticalRegarding Q402: if Engineer A's government retainer had not yet ended when the contractor sought his services, the conflict would be even more clearly impermissible, since Engineer A would then be simultaneously representing two adverse interests in the same matter, compounding the ethical breach beyond that of a successive representation issue into a direct concurrent conflict of interest.
Resolved by: The board weighed the severity of concurrent representation of two adverse parties as strictly greater than that of successive representation, making the conflict clearer rather than requiring new balancing. (confidence 0.80)
III.4.b. 2 principles 3 facts Conditions Narrative

If the 1976 Code of Ethics (lacking the adverse-interest consent provision) still governed at the time of this case rather than the 1981 revision, would the Board have reached the same unethical conclusion?

Also discussed in: C103 C204
Decisions & Arguments (4)
View Extraction

Should Engineer A accept the government's retainer to study the dam failure?

Options considered:
O1 Engineer A agrees to study the cause of the dam failure for the U.S. government, fulfilling his duty as a faithful agent. Board's choice
O2 Engineer A refuses the engagement, avoiding acquisition of specialized non-public knowledge about the dam failure.
Argument structure (Toulmin):
Grounds

Engineer A was retained by the U.S. government to study the cause of the Teton Dam failure.

Warrant

Engineers must act as faithful agents for their clients and are expected to accept engagements consistent with their expertise.

Rebuttal

Would not apply if Engineer A already knew at the time of acceptance that the knowledge gained would later disqualify him from all related future work, making the acceptance itself imprudent.

Obligation to Serve the Client Faithfully

Should Engineer A accept the contractor's retention as an adverse expert witness without the government's consent?

Options considered:
O1 Engineer A agrees to serve as the contractor's expert witness against the government, relying on his specialized knowledge from the dam study without seeking consent.
O2 Engineer A refuses the contractor's offer, recognizing the adverse interest conflict with his former government client. Board's choice
O3 Engineer A conditions acceptance on the government first granting explicit consent to the adverse arrangement.
Argument structure (Toulmin):
Grounds

Engineer A had studied the dam failure under a government retainer and was later approached by the contractor to serve as an expert witness in a compensation claim arising from the same failure.

Warrant

Engineers must not represent an interest adverse to a former client's interest without the consent of all interested parties, and must avoid conduct creating even the appearance of exploiting privileged knowledge.

Rebuttal

Would not apply if the government explicitly consented to Engineer A's retention by the contractor, which would cure the core violation.

Obligation Not to Represent Adverse Interests Without Consent of All Interested Parties

Must Engineer A seek the government's consent before accepting the contractor's adverse retention?

Options considered:
O1 Engineer A contacts the U.S. government to request explicit consent before agreeing to serve as the contractor's expert witness. Board's choice
O2 Engineer A accepts the contractor's retention without approaching the government for permission.
Argument structure (Toulmin):
Grounds

Engineer A accepted retention as an expert witness for the contractor whose claim was adverse to the government's interests, without seeking or obtaining the government's consent.

Warrant

Section III.4.b conditions the propriety of representing an adverse interest on the consent of all interested parties.

Rebuttal

Would not apply if the government were not properly an interested party to the contractor's claim or if Engineer A's prior knowledge had no material relevance to it.

Adverse Interest Consent in Contractor Claim

Should Engineer A treat his confidentiality obligations to the government as continuing after the retainer's termination when accepting the contractor's adverse retention?

Options considered:
O1 Engineer A declines to use or apply knowledge gained during the government engagement in the contractor's adverse claim, treating the duty as surviving termination. Board's choice
O2 Engineer A proceeds on the view that termination of the retainer released him from any further confidentiality duty to the government.
Argument structure (Toulmin):
Grounds

Engineer A's retainer with the government had ended before he accepted the contractor's retention, but the specialized knowledge he gained during the dam failure study remained materially relevant to the contractor's claim.

Warrant

Engineers must protect information and knowledge acquired in confidence during a professional relationship even after that relationship formally ends.

Rebuttal

Would not apply if the specialized knowledge in question had lost all relevance to the contractor's claim or had become publicly available since the retainer ended.

Confidentiality of Former Client Knowledge
Event Timeline (7)
7 sequenced 4 actions 3 events
Case timeline
A dam on the project failed, prompting the U.S. government to retain Engineer A to study the causes of the failure.
Engineer A accepted a retainer from the U.S. government to study the causes of a dam failure, gaining firsthand and specialized knowledge of the project.
Fulfills (1)
  • Obligation to Serve the Client Faithfully
Causal-normative reasoning(confidence 0.80)
Accepting the government retainer fulfills the obligation to serve the client faithfully and is guided by that same duty of faithful service, yet this faithful acceptance is precisely what causally enables both the retainer's later termination and, more importantly, the acceptance of the adverse expert role, showing how a duty-fulfilling act can still set up a conflict of interest.
Engineer A completed his services and was paid in full by the U.S. government, ending the retainer and leaving the government as a former client rather than a current one.
The contractor on the dam project filed a claim against the U.S. government seeking additional compensation, creating the adversarial proceeding in which Engineer A was later retained.
Causal-normative reasoning(confidence 0.72)
Although the compensation claim filing itself carries no direct normative status, it is the causal trigger for the contractor's retention of Engineer A as an adverse expert, so it sets in motion the very conflict that later produces the violation finding even though A1 itself is not judged.
The NSPE revised the Code of Ethics in July 1981, amending Section 7 into Section III.4.b to prohibit participating in or representing an adverse interest using specialized knowledge gained from a former client without consent of all interested parties.
Causal-normative reasoning(confidence 0.75)
The code revision adoption is guided by the duty to protect client confidential information, and because it causally produces the revised code's effectivity that later serves as the very standard against which Engineer A's conduct is judged, it matters as the normative instrument that makes the downstream ethical violation finding possible.
The July 1981 revision of the Code of Ethics took effect, making Section III.4.b applicable to conduct such as Engineer A's later retention as an adverse expert witness.
Engineer A accepted retention by the contractor as an expert witness in the contractor's claim against the U.S. government, his former client, without obtaining the government's consent. The Board found this action violated Section III.4.b of the revised Code.
Violates (1)
  • Obligation Not to Represent Adverse Interests Without Consent of All Interested Parties
Causal-normative reasoning(confidence 0.85)
Accepting the adverse expert retention violates the obligation not to represent adverse interests without consent of all interested parties, and because this action directly causes the ethical violation finding under Section III.4.b, it stands as the pivotal act where the prior faithful government service and the new adverse retention collide into a clear breach of professional duty.
State changes (2)
  • began: Missing Government Consent
  • began: Successive Adverse Retention Conflict
Narrative (1 main characters)
View Extraction
Opening Context

Written in second person from the engineer's point of view, so you read the case as the professional experienced it. Underlined names link to the character's profile below.

You are Engineer A, a licensed professional engineer with expertise in dam design and failure analysis. The U.S. government retains you to investigate the causes of a dam failure that occurred on a federal project, and in the course of this work you gain access to internal government analyses, correspondence, and technical data related to the contractor's performance and the circumstances of the failure. Your retainer with the government eventually ends. Sometime afterward, the contractor who built the dam and who has since filed a claim against the U.S. government seeking additional compensation for the project approaches you and asks you to serve as their retained expert in the dispute. You did not seek the government's consent before entertaining this new engagement, and the information you hold from your prior work touches directly on the issues the contractor's claim will raise. You must now work through what your obligations are regarding this second retention and the confidential knowledge you carry from the first.

Main characters (1)

Each card shows the roles a person holds and the tensions those roles raise for them. A single person may carry several roles in the case, and a tension between obligations can implicate more than one person at once. Click Show all tensions for the full list.

Engineer A Roles in this case: Failure Study ConsultantContractor Claim EngineerExpert Witness

Guided by: Confidentiality of Former Client Knowledge, Adverse Interest Consent in Contractor Claim

Engineer A's duty to preserve the confidentiality of information obtained while performing the dam failure study for the government client conflicts with the duty to obtain informed consent before accepting a new engagement adverse to that former client. Acting as an expert witness for the contractor's claim against the government may require Engineer A to draw on or disclose confidential findings from the original study, so fulfilling the consent duty in good faith could still compromise the confidentiality duty if the government does not fully understand what information might be used.

Attaches to role: Expert Witness

The constraint limiting disclosure of information gathered during the dam failure study conflicts with the practical need to disclose enough of that information to the government client so it can meaningfully evaluate and consent to Engineer A's adverse engagement for the contractor. A narrow reading of the confidentiality constraint could make it impossible to obtain a genuinely informed consent, while a broader disclosure needed to secure consent risks breaching the confidentiality constraint itself.

Attaches to role: Failure Study Consultant

The constraint against accepting retention in a matter adverse to a former client without that client's consent stands in tension with the practical duty to pursue and secure such consent once the contractor has already approached Engineer A. If the government delays, refuses, or gives only partial consent, Engineer A faces pressure to proceed with the contractor engagement anyway, which would violate the constraint even while attempting to satisfy the underlying consent obligation.

Attaches to role: Contractor Claim Engineer

Other people involved in the case but not central to the opening narrative.

Engineer A's duty to preserve the confidentiality of information obtained while performing the dam failure study for the government client conflicts with the duty to obtain informed consent before accepting a new engagement adverse to that former client. Acting as an expert witness for the contractor's claim against the government may require Engineer A to draw on or disclose confidential findings from the original study, so fulfilling the consent duty in good faith could still compromise the confidentiality duty if the government does not fully understand what information might be used.

The constraint against accepting retention in a matter adverse to a former client without that client's consent stands in tension with the practical duty to pursue and secure such consent once the contractor has already approached Engineer A. If the government delays, refuses, or gives only partial consent, Engineer A faces pressure to proceed with the contractor engagement anyway, which would violate the constraint even while attempting to satisfy the underlying consent obligation.

The constraint limiting disclosure of information gathered during the dam failure study conflicts with the practical need to disclose enough of that information to the government client so it can meaningfully evaluate and consent to Engineer A's adverse engagement for the contractor. A narrow reading of the confidentiality constraint could make it impossible to obtain a genuinely informed consent, while a broader disclosure needed to secure consent risks breaching the confidentiality constraint itself.

Engineer A's duty to preserve the confidentiality of information obtained while performing the dam failure study for the government client conflicts with the duty to obtain informed consent before accepting a new engagement adverse to that former client. Acting as an expert witness for the contractor's claim against the government may require Engineer A to draw on or disclose confidential findings from the original study, so fulfilling the consent duty in good faith could still compromise the confidentiality duty if the government does not fully understand what information might be used.

The constraint against accepting retention in a matter adverse to a former client without that client's consent stands in tension with the practical duty to pursue and secure such consent once the contractor has already approached Engineer A. If the government delays, refuses, or gives only partial consent, Engineer A faces pressure to proceed with the contractor engagement anyway, which would violate the constraint even while attempting to satisfy the underlying consent obligation.

The Board’s deliberation

How the Board of Ethical Review resolved the case, verbatim from its published conclusions.

It would not be ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances.
Opening States (7)
Successive Adverse Retention Conflict Government Retention Ended Confidential Government Knowledge Held Section III.4.b Violation Dam Failure Study Knowledge Pending Contractor Compensation Claim Missing Government Consent
Summary
  • An engineer's duty of confidentiality to a former client cannot be reliably discharged by seeking informed consent when the very act of explaining the new engagement risks disclosing the protected information.
  • Prior professional involvement in an investigation can permanently disqualify an engineer from later serving as an adverse expert witness on closely related matters, even if the new client actively seeks out that engineer.
  • When the duty to obtain consent and the duty to preserve confidentiality are structurally intertwined, attempting to satisfy one by degrees tends to compromise the other, making refusal of the new engagement the only clean resolution.

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