By Tara Hoke
Situation
One of the ethical issues that may arise when an employment or business relationship is terminated can be captured in the following three scenarios. In the first, the partners of a small structural and geotechnical engineering firm are unable to reach agreement on business objectives and so decide to part ways and dissolve the partnership. One partner, who is a structural engineer and ASCE member, sends notice of the pending dissolution to several of the firm's clients without the knowledge of the other partners and informs the clients that the only way to ensure the same quality of service is to follow him to his new private practice
In the second scenario, an ASCE member decides to relocate with her family to another part of the country. In view of the importance of her role at her engineering firm, she decides that 90 days' notice will provide her employer with ample time to deal with her departure. The employer accepts the member's decision with regret and reminds her that the firm is currently negotiating to extend a large municipal consulting contract for which she is the client liaison and senior engineer. Concerned that news of her departure may prompt the municipality to look elsewhere for services, the employer insists that the departing engineer tell no one of her move until after the contract has been secured. The employee complies
In the third scenario, an engineering firm feeling the effects of an economic downturn and the attendant decrease in the number of public- and private-sector projects available in its area, lays off two of its staff engineers. Reluctant to reveal its financial difficulties to clients, the firm's principal, who is an ASCE member, drafts a letter to all of the clients who worked with the two engineers. The letter informs them of the departures and implies that the terminations were based on poor performance. The remaining employees are directed not to share the former employees' contact information with any former or present client who requests it.
Question
Does the conduct described in these scenarios in any way violate ASCE's Code of Ethics? What ethical obligations does the code impose on employers and employees in notifying clients of a parting of the ways?
Discussion
In today's competitive and professional environment, which is characterized by considerable employee mobility, it is now the exception rather than the rule for an engineer to remain with a single firm, agency, or employer for his or her entire career. But as common as departures from an employer, a partnership, or a similar professional arrangement may be, such situations continue to present one of the gravest ethical challenges an engineer can face
According to canon 4 of ASCE's Code of Ethics, "Engineers shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest." In cases involving a dissolving professional relationship, this canon is generally cited as imposing an obligation on the departing engineer not to abuse an employment relationship to further his or her private interests. For example, the departing engineer must not use his or her employer's resources or proprietary knowledge to compete unfairly for the employer's existing business
Yet while the most salient ethical concern in such cases has to do with the employee's obligations to his or her firm, it is important not to lose sight of the fact that canon 4 imposes an obligation not just to employers but to clients as well. This obligation to clients is one that should dictate the conduct not only of the departing employee or partner but also of all of the parties involved in the parting of ways.
Clients place a great deal of reliance on the advice of engineering professionals and make crucial decisions on the belief that they have been provided with accurate, timely, and objective information. To fulfill their ethical obligation to serve clients as "faithful agents or trustees," engineering professionals must reward their client's trust by ensuring that the information they provide will enable the clients to make informed and sensible decisions. To "avoid conflicts of interest," the engineer must also ensure that the information is not slanted to promote his or her personal interests
In the context of a dissolving employment relationship or partnership, an engineer's duties under canon 4 require a recognition that, in the absence of a contractual commitment, clients should have the autonomy to seek professional services from the engineer of their choice. To do so, however, they must have knowledge of circumstances that might affect their selection, and they must be apprised of the options available to them.
In each of the three scenarios presented here, the ASCE member attempts to mislead or misinform clients on a matter relevant to their selection of an engineering professional, whether by failing to apprise them of a change in circumstances or by presenting the information in a manner intended to hinder the client's ability to make an informed decision. Thus, in all three scenarios the members may have violated their duty under canon 4 to serve their clients as faithful agents or trustees. (To the extent that the first and third scenarios involve misleading statements about the quality of another engineer's services, the actions might also fall afoul of guideline (g) in the guidelines to practice for canon 5: "Engineers shall not maliciously or falsely, directly or indirectly, injure the professional reputation, prospects, practice or employment of another engineer or indiscriminately criticize another's work."
While the ethical issues surrounding the dissolution of professional relationships are complex, they are by no means confined to the engineering profession. In the legal profession the issue of departing attorneys is so contentious that it has led to the adoption of extensive ethical guidelines and even formal licensing regulations. Engineers facing similar situations may choose to look to the legal profession for guidance
- For example, rule 5.8 of the Virginia State Bar's Rules of Professional Conduct suggests the following model for notification of engineering clients and customers of a significant departure or dissolution
- Notice of a departing employee must be given in a timely manner to all clients for whom the engineer had significant responsibilities. However, neither the departing employee nor the employer should notify clients until the employer and the employee have met and endeavored to agree on the wording of a joint notification about the employee's departure
- In cases involving a dissolving partnership or other entity, notice must be timely, but no partner or principal should unilaterally contact clients without first attempting to agree on a means of providing notice of the pending dissolution
- If the parties are unable to reach agreement on a joint means of notifying clients, the following apply:
- Unilateral contact by a departing employee or the firm must not contain false or misleading statements. The notice to clients should state that the employee is leaving the firm, and it should be made clear that a client's decision to continue or leave is at the client's option.
- Unilateral contact by members of a dissolving firm must not contain false or misleading statements and must give notice to clients that the firm is being dissolved. The client is to be given the option to choose representation by any qualified member of the dissolving firm or another firm.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, January, 2016
