DP5

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

DP5

Would the ethical prohibition on Engineer A's adverse participation for the contractor be eroded or extinguished if Engineer A's government engagement had concluded years earlier and the confidential forensic findings had since become publicly available through litigation discovery or published government reports?

Engineer A must evaluate whether the passage of time and the public availability of formerly confidential government forensic findings — through litigation discovery or published reports — would alter the ethical calculus and potentially permit adverse participation for the contractor. Engineer A may reason that once confidential information enters the public domain, the confidentiality rationale for the switching-sides prohibition is extinguished and the prohibition no longer applies.

Recognize that the switching-sides prohibition is not eroded by the passage of time or the public availability of formerly confidential findings, because the prohibition is grounded not only in confidentiality but also in the irremediable structural compromise of Engineer A's objectivity — which persists regardless of whether the underlying findings are now publicly known — and decline the contractor engagement on that independent basis.

Treat the public availability of formerly confidential government forensic findings as extinguishing the confidentiality rationale for the prohibition, and accept the contractor's retainer on the ground that Engineer A's testimony would be based solely on publicly available information rather than privileged government knowledge.

Apply a temporal exception to the switching-sides prohibition, reasoning that after a sufficient number of years the professional relationship with the former client has sufficiently attenuated that the loyalty and confidentiality obligations no longer bar adverse participation in the same matter.

Former Government Forensic Consultant Assessing Temporal and Publicity Exceptions to Switching-Sides Prohibition