By Tara Hoke
Given this column's focus on extraordinary cases involving unethical or even illegal conduct, it may be surprising to learn that perhaps as many as half of the complaints received by ASCE's Committee on Professional Conduct (CPC) in a given year do not involve extraordinary cases at all but rather have to do with private clients who are dissatisfied with the service they have received from an engineering professional. In many of these cases, the CPC ultimately finds that the issues do not raise ethical questions but rather are contractual or performance matters and thus more appropriate for resolution in a legal forum. Nevertheless, even when the CPC ultimately finds that disciplinary action against a member is not warranted, such cases may offer valuable lessons about the importance of professionalism, integrity, and service to clients.
Situation
A homeowner submits a complaint to the CPC claiming that a member violated ASCE's Code of Ethics in the way in which he rendered home inspection services for her. She explains that she and her husband had begun a short-sale purchase of a hillside property but were concerned about a visible crack in the foundation wall and other evidence that the structure had shifted in the 75 years since its construction. Seeking to determine whether the home was safe and whether the necessary repairs could be carried out within their modest budget, the couple engaged the ASCE member-a geotechnical engineer and foundation expert-to perform an inspection of the premises.
The member informed them that he charged a fee of $600 for home inspections and that if they wanted a written report of his findings, it would cost them an additional $500. The couple agreed to receive a verbal report only and made arrangements for the engineer to inspect the house.
The complainant states, however, that the home inspection was unsatisfactory almost from the moment the engineer arrived on-site. She states that he had a disdainful way of speaking to them, for example, by handing his business card to her husband and admonishing him "not to pick his teeth with it." She claims that the engineer made "confusing jokes" instead of giving a clear professional opinion, one being that the house was one "he would gladly tell his mother-in-law to buy."
She further says that the ASCE member discussed the need to repair the foundation crack and attend to a few additional maintenance items but refused to provide a more detailed list of recommendations unless they paid for a written report. When pressed on the question of whether the house was safe, the engineer replied that the house "had been there for 75 years and wasn't going anywhere."
After the inspection, the complainant's real estate agent contacted the engineer to complain about his jocular treatment of the inspection and the fact that the couple had often been unable to tell whether he was being serious or sarcastic. In response, the engineer agreed to return half of the $600 inspection fee.
The complainant and her husband decided to proceed with the purchase, believing that the overall tenor of the engineer's comments was that the house was sound and that the necessary repairs were minor. However, they soon discovered that the structure was not sound and that the repairs would involve installing caissons to prevent further soil movement from destroying the foundation. Within 18 months of the purchase, the cost of the repairs had erased not only the couple's current savings but also most of their retirement savings.
Question
Did the member's conduct violate ASCE's Code of Ethics?
Discussion
The oldest of all the canons in ASCE's code, canon 4, describes the relationship between the engineer and his or her clients: "Engineers shall act in professional matters for each employer or client as faithful agents or trustees." This canon emphasizes that an engineer's role is principally to render service to others by applying his or her knowledge, experience, and judgment.
This focus on trust permeates ASCE's Code of Ethics. Canon 3 provides the basis upon which clients can be assured that an engineer's assessments will be truthful, objective, and complete, while canon 6 cautions that a failure to adhere to professional standards may undermine the public's view of the integrity of the engineering profession as a whole. Taken together, canons 3, 4, and 6 stand for the proposition that it is an engineer's ethical obligation not only to provide faithful guidance to clients but also to communicate his or her advice in a way that enables the client to make sound decisions.
The CPC contacts the member and informs him that it is reviewing a complaint alleging violations of canons 3, 4, and 6. The member heatedly denies any ethical lapses and provides a different story of his dealings with the homeowners, one that paints an entirely different picture of the transaction.
The member states that he clearly explained to the complainant and her husband that the house showed signs of "tremendous" structural problems. He contends that he told them that the structure's foundation and floor system had failed and would need to be replaced. He estimated that repairs to the structure and the exterior hardscape might cost as much as $200,000, and he warned them that this figure could be significantly higher if the removal of walls and floor surfaces revealed further structural damage. For these reasons, he says that he told the prospective buyers "in no uncertain terms that they should pass on this house."
The member also notes that while he prefers to provide a written report of his observations, he offers verbal reports to clients who are seeking to cut costs. The complainant, he says, was eager to avail herself of this option. He further claims that she and her husband dismissed his recommendations while he was on-site and that the complainant "seemed more interested in how she was going to decorate the house than in listening to what I had to say." Finally, he says that, when he agreed to refund half the fee, he informed the couple that they could call him to discuss anything that was covered during the on-site inspection but that neither of them had done so.
With diametrically opposed accounts of the conversations that occurred, neither of which had been put in written form or witnessed by anyone without a personal stake in the matter, the members of the CPC did not see how they could make an objective decision. They felt that the complainant and her husband had certainly made a number of poor decisions with regard to their purchase, both in forgoing the written report in the first place and in failing to ensure that they understood the engineer's recommendations.
However, the committee members were also of the opinion that, despite the errors of the complainant and her husband, there may have been ethical breaches by the engineer. They were troubled by the very nature of the verbal transaction. Noting that canon 4 enjoins an engineer to act in the best interests of his or her clients, they opined that it was never in a client's best interests to lack a written record of the engineer's observations and conclusions. Moreover, in view of the engineer's expertise and the importance of his findings on the house's condition, they felt that he should have demonstrated better judgment when deciding which level of communication would be sufficient.
The members of the CPC voted to dismiss the complaint without formal action, but they sent a letter to the engineer advising him of their concerns about his inspection practices. They warned that a lack of written documentation was an invitation for precisely the ethical and legal issues raised by this case and that it opened the door to disputes and uncertainty about exactly what had been communicated. Thus, while understanding his desire to offer clients a range of prices, they advised him in the future to prepare some type of written summary for those engaging his services.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, September, 2016
