THE MAGAZINE FOR PROFESSIONAL ENGINEERS 11
the event of a dispute between the tenant
and landlord over the leakage issue), it does
not appear, under the facts, that Gineer
owed any ethical obligation to Andlorde.
Therefore, Gineer would be free to pursue
a professional relationship with Contractor.
It would be ethical for Nancy Gineer to
perform the expert witness work for
NSPE Code References
Section II.4: Engineers shall act for each
employer or client as faithful agents or
Section III. 4.b: 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.
For more information, see BER
Case No. 10-11.
would suggest Gineer could not perform the
work in question for Contractor. The only
potential ethical issues for consideration
relate to language in NSPE Code Sections
II. 4 and III. 4.b that require an engineer 1)
to “act for each employer as faithful agents
or trustees” and 2) to obtain the permission
of an “interested party” when representing
adversarial interests in connection with a
Under the facts of the case, since
Gineer was never retained by Andlorde,
it would be difficult to make a plausible
case that Andlorde was in fact an “
interested party” in the strictest sense of
the term, which would require Gineer
to obtain Andlorde’s permission before
performing services for Contractor. While
the building in question was owned by
Andlorde, Gineer’s client had been Tierre.
Andlorde did not share any confidential
information with Gineer.
Moreover, one must assume that as the
contractor for Andlorde, Contractor has
access to the same if not more information
about the building than did Gineer. While
Andlorde may have been, at best, an incidental beneficiary of Gineer’s services (and
arguably a potential adversary of Tierre in
What Do You Think?
Would it be ethical for Nancy Gineer
to perform the expert witness work for
What the Board of
Ethical Review Said
Expert witness testimony by an engineer
often raises important ethical considerations. Questions of confidentiality,
conflicts of interest, scope of practice,
competence, and other ethical considerations frequently come into play when
expert witness testimony is the focus of a
professional practice issue.
The Board can find nothing specific in
the NSPE Code of Ethics or previous NSPE
Board of Ethical Review opinions that
A Leak in Judgment?
An engineer is requested to provide expert testimony regarding a familiar work site.
Ren Tierre has a water leakage problem
in a building owned by L. Andlorde and
hires Nancy Gineer, P.E., to perform a
basement inspection to determine the
cause of the leakage. Andlorde had
earlier hired Jim Contractor to install
a sump pump in connection with a
previous leakage issue. Gineer determines that the leakage is due to run
off from an adjacent parking garage.
She recommends a series of design
and construction solutions to address
the leaks and presents the report to
her client, Tierre. The report briefly
mentions Contractor’s earlier work
to install the sump pump, but is not
critical of that work.
Ultimately, Tierre, with the landlord’s consent, agrees to have Vince
Smith, P.E., develop an engineering
solution. The work is completed
and the leakage issues are successfully addressed. Later, Contractor’s
attorney contacts Gineer in an effort
to retain her as an expert witness in
connection with litigation between
Contractor and Andlorde relating
to the original sump pump work
performed for Andlorde.