DP6

DecisionPoint
http://proethica.org/ontology/cases#DecisionPoint

DP6

Should Engineer A have clarified and negotiated the limits of any confidentiality obligation — specifically excluding imminent safety findings from its scope — before accepting the forensic expert engagement, or was it reasonable to accept the engagement under standard terms and address confidentiality conflicts only if and when they arose?

At the moment of accepting the forensic engagement — before any findings were made — Engineer A faced a threshold decision about whether to clarify the scope and limits of any confidentiality obligation as a precondition of engagement. The attorney's subsequent confidentiality instruction was legally ultra vires as applied to Engineer A's licensure-based public safety obligations, but Engineer A's failure to establish this boundary at inception contributed to the ethical conflict that followed. This decision point concerns whether Engineer A bore a pre-compliance duty to negotiate confidentiality scope before accepting the engagement.

Before accepting the forensic engagement, affirmatively establish with the attorney that any confidentiality arrangement cannot extend to suppression of imminent safety findings, documenting this limit in the engagement agreement so that the engineer's licensure-based public safety obligations are explicitly preserved from the outset.

Accept the forensic engagement under standard professional terms without pre-negotiating confidentiality scope, on the basis that the NSPE Code's public safety exception operates regardless of engagement agreement terms and that a competent retaining attorney should understand the limits of engineering expert confidentiality obligations.

Before accepting the engagement, consult independent legal counsel to clarify the extent to which attorney-client privilege or litigation confidentiality rules could be asserted against the engineer's independent professional obligations, and condition acceptance on receiving a written legal opinion confirming that public safety findings cannot be suppressed.

Engineer