By Mona Savino & Thomas Smith, III
Situation
The owner of an engineering consulting firm (consultant A) was hired as a consultant to a county agency to review the construction of a county building. Because cracks in the building's concrete appeared shortly after construction was completed, the county had not paid the contractor for the work performed. The contractor sued the county for payment. As part of the litigation, another consulting firm (consultant B) was asked by the contractor to inspect the cracking and prepare a report explaining why the concrete cracked. Consultant B concluded that the cracks were caused by shrinkage of the concrete. Consultant A had previously rendered his opinion that the cause of the cracking was poor workmanship on the part of the contractor.
Consultant A filed an ethics complaint against consultant B based on the preparation of the latter's report. Consultant A claimed that the second report was prepared without adequate investigation and that consultant B should have informed him that a new report was being prepared. He also contended that the second report damaged his reputation.
Question
Did Consultant B violate ASCE's Code of Ethics by preparing this report? (For the purpose of this discussion, the code sections cited are those that were in force at the time of the complaint.) The code read as follows at the time:
It shall be considered unprofessional and inconsistent with honorable and dignified conduct and contrary to the public interest for any member of the American Society of Civil Engineers:
- Article 4: To attempt to injure, falsely or maliciously, the professional reputation, business, or employment position of another engineer.
- Article 5: To review the work of another engineer for the same client, except with the knowledge of such engineer, unless such engineer's engagement on the work which is subject to review has been terminated.
- Article 9: To act in any manner derogatory to the honor, integrity, or dignity of the engineering profession.
Discussion
ASCE's Committee on Professional Conduct (CPC) determined that consultant B was not in violation of the Code of Ethics. It concluded that because Consultant B's preparation of the report did not "attempt to injure, falsely or maliciously, the professional reputation, business, or employment position" of consultant A, article 4 was not violated. The CPC also concluded that because the work was not done for the same client, article 5 was not violated. Finally, it determined that the preparation of the report did not violate article 9.
This case is of historical interest because of the changes in the code required by the U.S. Department of Justice (DOJ) as part of its enforcement of the Sherman Antitrust Act. In 1972 ASCE entered into a consent decree with the DOJ. Prior to that time, article 3 of ASCE's code stated that "[i]t shall be considered unprofessional and inconsistent with honorable and dignified conduct and contrary to the public interest for any member of the American Society of Civil Engineers to invite or submit priced proposals under conditions that constitute price competition for professional services." The DOJ stated in its complaint against ASCE that the effects of that article were that "[p]rice competition among ASCE members in the sale of their services has been suppressed and eliminated" and that "[c]ustomers requiring the services offered by members of the ASCE have been deprived of the benefits of free and open competition in the sale of such services." The consent decree directed ASCE to eliminate any provisions in its code that prohibited or limited the submission of price quotations for engineering services by its members. Pursuant to the consent decree, ASCE amended its code to delete article 3.
In 1975 two members were found in violation of the article stating that it was a violation of the code for a member "to attempt to supplant another engineer in a particular engagement after definite steps have been taken toward his employment." The DOJ sued ASCE, alleging that this action violated the 1972 consent decree. In 1977 a court ordered ASCE to stop enforcing the supplanting provision; however, ASCE was not ordered to eliminate that provision from its code and did not do so.
In 1979 a U.S. district court held that the supplanting provision of the American Institute of Architects' code of ethics (which was identical to ASCE's supplanting provision) was an unreasonable restraint of trade and thus violated the Sherman Antitrust Act. ASCE's legal counsel recommended that ASCE eliminate the supplanting provision as well as the provision at issue in the above case that dealt with one engineer reviewing the work of another. ASCE followed that advice and removed those provisions.
© ASCE, ASCE News, November, 2005
