Accept Forensic Engagement (Action 1) → Report Successfully Submitted (Event 1)
Adversarial Context Non-Exemption Invoked in Engineer A Forensic Report Correction
Written report submitted to Attorney X in litigation context
Faithful Agent Obligation Within Ethical Limits
The fact that Engineer A's forensic report was prepared in connection with pending litigation and that Attorney X is engaged in active settlement negotiations does not exempt Engineer A from the professional obligation to disclose discovered data inaccuracies — the adversarial nature of the proceeding does not relax the engineer's duty to truthful and accurate professional reporting
The adversarial litigation context creates pressure to preserve the original report's conclusions for strategic reasons, but this pressure does not constitute an ethical justification for allowing a known inaccuracy to remain uncorrected in an operative professional document
Engineer A Forensic Report Error Discoverer
Adversarial Context Non-Exemption from Professional Standards
Attorney X is in the process of settlement negotiations with the defendant's attorney in the case
Adversarial context non-exemption principle establishes that the engineer's duty of accuracy and correction applies with equal force in litigation as in non-adversarial contexts; the attorney controls litigation strategy but the engineer controls professional report integrity
Engineer A discovers that the data upon which Engineer A based his report conclusions was inaccurate and that if the more accurate data had been used in his investigation, Engineer A's conclusions would be different
Part of Engineer A's duties is to perform forensic engineering services for attorneys in connection with pending litigation
Attorney X Attorney Client Retaining Forensic Expert
{'role_type': "Plaintiff's attorney", 'engagement_status': 'Active settlement negotiations', 'report_receipt': "Received Engineer A's written report prior to settlement conclusion"}
Retained Engineer A to conduct a forensic investigation and prepare a written report regarding a mechanical product failure causing injuries to Attorney X's client; currently engaged in settlement negotiations with the defendant's attorney at the time Engineer A discovers the data inaccuracy.
{'type': 'negotiating_with', 'target': "Defendant's Attorney"}
{'type': 'represents', 'target': 'Injured Client (plaintiff)'}
{'type': 'retains', 'target': 'Engineer A Forensic Report Error Discovering Engineer'}
Attorney Client Retaining Forensic Expert
Engineer A is retained by Attorney X to perform a forensic engineering investigation
{'role_type': 'Retaining litigation attorney', 'engagement_status': 'Active settlement negotiations at time of error discovery'}
Attorney representing Engineer A in civil litigation and/or settlement negotiations with the defendant's attorney; recipient of Engineer A's forensic report; engaged in active negotiations that may or may not result in settlement at the time Engineer A discovered data inaccuracies; the party whom Engineer A had an affirmative obligation to immediately notify upon discovering report errors.
{'type': 'adversarial', 'target': 'Defendant Attorney'}
{'type': 'client', 'target': 'Engineer A Dock Foundation Design Engineer'}
Attorney Client Directing Confidentiality
Engineer A had an affirmative obligation to step forward and immediately advise Attorney X.
Since Attorney X was in the middle of negotiations with the defendant's attorney, which may or may not have resulted in a settlement of the case, this was critically important information for Attorney X to have in his possession.
Attorney X Retaining Attorney Expert Witness Oversight Capability
Retaining Attorney Expert Witness Licensure Verification Capability
Attorney X, as the retaining attorney, possessed the capability to engage Engineer A as a forensic expert and to receive notification from Engineer A of discovered data inaccuracies in the submitted report — including the responsibility to make strategic litigation and settlement decisions in response to Engineer A's correction notification.
Attorney X retained Engineer A as a forensic expert in civil litigation involving a mechanical product failure, and was in active settlement negotiations when Engineer A discovered the data inaccuracy.
Attorney X's retention of Engineer A to conduct the forensic investigation and prepare the written report, and Attorney X's role as the recipient of Engineer A's professional obligations regarding report accuracy.
Engineer A is retained by Attorney X to perform a forensic engineering investigation and prepare a written report in connection with a mechanical product failure
Attorney X is in the process of settlement negotiations with the defendant's attorney in the case.
One such case was NSPE Board of Ethical Review Case 95-5
As with BER Case 95-5, under the current facts, once Engineer A discovered that the data upon which Engineer A based his report conclusions was inaccurate...
While the facts in BER Case 95-5 are somewhat different than the present case, the Board of Ethical Review believes that BER Case 95-5 is instructive regarding the expectations when a professional engineer serves as an engineering expert
NSPE Board of Ethical Review in analyzing Engineer A's obligations
Cited as directly instructive precedent establishing the ethical expectations for professional engineers serving as engineering experts, particularly regarding selective use of data and the duty of completeness and impartiality in forensic expert reports; used by the Board to ground its analysis of Engineer A's obligation to disclose discovered inaccuracies to retaining counsel
CausalLink_Conduct Forensic Investigation
CausalLink_Decline to Consult Available W
CausalLink_Disclose Data Inaccuracy to At
CausalLink_Exclude Pile Driving Records f
CausalLink_Omit Dynamic Test Equipment Fa
Client Disservice Through Incomplete Reporting Prohibition Invoked in Engineer A Forensic Error Context
Forensic report relied upon in settlement
Error Acknowledgment and Corrective Disclosure Obligation
If Engineer A were to fail to disclose the discovered data inaccuracy to Attorney X, Engineer A would be committing a disservice to Attorney X — the retaining attorney would proceed with settlement negotiations on the basis of a report the engineer knows to be inaccurate, potentially resulting in a settlement that does not reflect the true technical merits of the case and exposing the attorney to professional risk if the error is later discovered
The prohibition on disserving clients through incomplete or inaccurate reporting applies to post-submission discoveries as well as to initial report preparation — allowing the attorney to proceed on the basis of a known error is a form of disservice that violates the engineer's duty to the retaining party
Client Disservice Through Incomplete Reporting Prohibition
Disclosure of the error serves rather than conflicts with the client's true interests; the attorney is better positioned to manage the litigation with accurate information than with a report the engineer knows to be wrong
The Board explicitly concluded that Engineer A bore an affirmative obligation to immediately disclose the discovered data inaccuracy to Attorney X, particularly given that Attorney X was actively relying on the erroneous forensic report during ongoing settlement negotiations. The Board's language — 'affirmative obligation to step forward and immediately advise' — constitutes a formal determination that failure to do so would constitute an ethical violation of truthfulness, error acknowledgment, and faithful agent duties under the NSPE Code.
Beyond the Board's finding that Engineer A had an affirmative obligation to step forward and immediately advise Attorney X, the scope of that obligation is not exhausted by disclosure to the retaining attorney alone. Because the erroneous report was already circulating as a functional instrument in active settlement negotiations — negotiations that could produce a binding resolution affecting the injured party, the defendant, and potentially the public — Engineer A's truthfulness and public welfare obligations extend, at minimum, to ensuring that the corrected analysis reaches every decision-maker whose reliance on the original report could produce a materially unjust outcome. If Attorney X declines to act on the corrected findings, Engineer A's obligations do not terminate at the boundary of the attorney-client relationship. The adversarial context non-exemption principle confirms that the adversarial structure of litigation does not convert Engineer A into an advocate whose duty of accuracy is owed only to the retaining party. Accordingly, Engineer A must be prepared to escalate disclosure — including, if necessary, to the court or opposing counsel — if Attorney X suppresses or ignores the correction, because allowing an inaccurate forensic report to remain the operative technical basis for a settlement is functionally equivalent to making a material misrepresentation of fact to the legal process itself.
The Board's emphasis on the critical importance of the timing — that Attorney X was in the middle of negotiations — implicitly recognizes that temporal position carries independent ethical weight, but the Board did not fully articulate why. The pre-settlement discovery window is ethically distinct from a post-settlement discovery in the following respect: before settlement is concluded, disclosure of the corrected findings preserves the possibility that the legal process will reach a result grounded in accurate technical facts. After settlement is concluded, that corrective opportunity is foreclosed, and the harm — whether to the injured party who may have accepted an inadequate recovery, or to the defendant who may have paid an inflated settlement — becomes irreversible without further legal proceedings. This asymmetry means that Engineer A's obligation during the pre-settlement window is not merely urgent in a practical sense but is categorically more demanding in an ethical sense: it is the last moment at which Engineer A's professional action can prevent, rather than merely remediate, the harm caused by the inaccurate report. The temporal urgency constraint is therefore not simply a procedural consideration but a substantive ethical amplifier that increases the weight of the disclosure obligation relative to any competing considerations, including the faithful agent obligation toward Attorney X.
The Board's conclusions address Engineer A's disclosure obligation but leave unexamined a logically prior question: whether Engineer A's original investigative methodology was itself deficient in a manner that constitutes a separate and independent ethical violation. If the data inaccuracy resulted from Engineer A's failure to apply appropriate professional diligence during the investigation — for example, by relying on unverified sources, failing to cross-check critical inputs, or omitting standard quality-control procedures — then the ethical analysis cannot be confined to the post-discovery disclosure obligation. The intellectual honesty obligation and the objectivity and truthfulness constraint both apply prospectively to the conduct of the investigation, not merely retrospectively to the correction of its outputs. A finding that Engineer A's methodology was deficient would mean that Engineer A violated the Code at the moment of submitting the original report, not only at the moment of discovering the error and failing to disclose it. The Board's silence on this point may reflect the absence of facts establishing methodological deficiency, but the analytical framework should make explicit that the disclosure obligation and the investigative competence obligation are distinct, that both are enforceable under the Code, and that satisfying the former does not retroactively cure a violation of the latter.
The Board's framework implicitly resolves the tension between the faithful agent obligation and the truthfulness obligation in favor of truthfulness, but it does so without articulating the limiting principle that governs the faithful agent role in forensic expert contexts. That limiting principle is this: the faithful agent obligation is a role-specific duty that operates within the boundaries set by the Code's overarching provisions, and it cannot be invoked to justify any action — or inaction — that would require Engineer A to make, or allow to persist, a material misrepresentation of fact. Attorney X retained Engineer A not as an advocate but as a forensic expert whose value to the litigation derives precisely from the reliability and accuracy of the technical analysis. An engineer who suppresses a known data inaccuracy to preserve a client's negotiating position is not acting as a faithful agent in any professionally cognizable sense; the engineer is acting as an advocate, which is a role the Code does not authorize and which the adversarial context non-exemption principle expressly forecloses. The faithful agent obligation, properly understood, requires Engineer A to serve Attorney X's legitimate professional interests — which include receiving accurate technical information necessary to make informed litigation decisions — not Attorney X's short-term tactical interests in maintaining a favorable but inaccurate evidentiary posture. Disclosure of the corrected findings is therefore not a breach of the faithful agent duty but its fulfillment.
From a consequentialist perspective, the Board's reasoning implicitly rejects the argument that the potential harm to Attorney X's client from a weakened settlement position could outweigh the obligation to disclose the data inaccuracy, but the analytical basis for that rejection deserves explicit articulation. The consequentialist calculus here does not favor suppression for two independent reasons. First, the harm to the injured party from a settlement based on inaccurate technical data is not merely the risk of an inadequate recovery; it is the harm of having the legal process produce an outcome that does not correspond to the actual facts of the case — a systemic harm that undermines the integrity of civil dispute resolution as a social institution. Second, the harm to the defendant from being compelled to negotiate a settlement on the basis of a forensic report that Engineer A knows to be inaccurate is a concrete and identifiable injury that the Code's non-deception constraint is designed to prevent. When both parties to a negotiation are relying on technical findings that the expert knows to be wrong, the settlement process is not functioning as a legitimate mechanism for resolving the dispute; it is functioning as a mechanism for laundering an error into a binding legal outcome. The consequentialist case for disclosure is therefore not merely that honesty produces better outcomes in the aggregate, but that the specific consequences of suppression in this case — harm to the defendant, potential under-recovery by the injured party, and corruption of the legal process — are all independently sufficient to require disclosure.
The Board clarified the interpretive basis for the urgency of disclosure, explicitly identifying the active settlement negotiation context as the factor that made the error correction 'critically important.' This constitutes an interpretive conclusion about why the temporal dimension of the obligation was heightened — the report was being actively relied upon in real-time negotiations, amplifying the ethical duty to disclose immediately.
Engineer A's obligation to disclose the data inaccuracy does not, at the initial stage, extend automatically to the court, the opposing party, or the public. The primary and immediate duty runs to Attorney X as the retaining attorney, who is the appropriate professional intermediary capable of determining how the corrected findings must be handled within the legal process. However, this limitation is conditional: if Attorney X refuses to act on the corrected information or instructs Engineer A to suppress it, Engineer A's obligations escalate beyond the attorney-client channel. At that point, the erroneous report's continued circulation in settlement negotiations constitutes an ongoing misrepresentation of technical fact that Engineer A cannot passively permit. The public welfare paramount principle and the non-deception constraint together foreclose Engineer A's silence as a permissible option regardless of Attorney X's instructions. The harm to third parties — including the injured client who may receive a settlement calibrated to inaccurate causation findings, and the defendant who may settle based on inflated liability — gives the disclosure obligation a systemic dimension that transcends the bilateral attorney-engineer relationship.
If Attorney X, upon being informed of the data inaccuracy, instructs Engineer A to suppress the corrected findings and proceed with the original report during settlement negotiations, that instruction does not constitute a legitimate exercise of the attorney's authority over the forensic engagement. The faithful agent obligation that Engineer A owes to Attorney X is bounded by the NSPE Code's truthfulness and non-deception provisions, and those provisions are not waivable by client instruction. Engineer A's role as a forensic expert is defined by objectivity and technical integrity, not by advocacy for the retaining party's litigation position. Compliance with Attorney X's suppression instruction would transform Engineer A from an objective expert into an instrument of misrepresentation, violating the adversarial context non-exemption principle, the honesty in professional representations principle, and the error acknowledgment obligation simultaneously. Under these circumstances, Engineer A would be ethically required to refuse the instruction, and if Attorney X persisted, Engineer A would need to consider withdrawal from the engagement. Withdrawal does not, however, extinguish Engineer A's underlying obligation to ensure the corrected findings are not suppressed in a manner that corrupts the legal process, particularly if the erroneous report remains in active use.
The timing of Engineer A's discovery — after submission but before settlement conclusion — does carry independent ethical weight beyond what would exist in a post-settlement scenario. The pre-settlement window represents a period during which the erroneous report is actively operative: it is shaping negotiating positions, influencing assessments of liability magnitude, and potentially driving a settlement figure that neither party would have accepted had accurate data been available. This active operativeness creates a heightened urgency because the harm is prospective and preventable. Engineer A's disclosure at this stage can interrupt the causal chain before it produces an unjust outcome. By contrast, post-settlement discovery would involve a harm already crystallized, where disclosure obligations would shift in character — becoming less about prevention and more about remediation, potentially requiring engagement with the court or opposing counsel rather than solely with Attorney X. The temporal distinction therefore carries genuine ethical significance: the pre-settlement context imposes an affirmative obligation of immediate disclosure precisely because the corrective action remains capable of preventing the misrepresentation from producing its full harmful effect. Delay within this window — even brief delay — compounds the ethical violation because each passing moment of negotiation conducted on the basis of the inaccurate report deepens the misrepresentation's influence on the outcome.
The Board's analysis focuses on Engineer A's disclosure obligation upon discovering the error but does not examine whether Engineer A's original investigative methodology was itself deficient. This is a distinct and independently significant ethical question. If the data inaccuracy resulted from Engineer A's failure to apply appropriate investigative rigor — for example, relying on unverified secondary data sources, failing to cross-check critical inputs, or omitting standard validation steps — then the initial submission of the report may itself constitute a violation of the objectivity and truthfulness obligations under the Code, separate from the subsequent disclosure failure. The error acknowledgment obligation under Code provision III.1.a. encompasses not merely the duty to correct discovered errors but also the implicit duty to employ methodologies sufficiently rigorous to minimize the probability of material error in the first instance. A forensic expert who submits conclusions based on data that reasonable professional diligence would have identified as suspect has not merely made an innocent mistake — they have potentially violated the professional report integrity standard at the point of original submission. The Board's silence on this dimension leaves open whether Engineer A's conduct prior to discovery was itself ethically adequate, and that silence should not be read as implicit exoneration of the original methodology.
From a deontological perspective, Engineer A's categorical duty of truthfulness is not contingent on the consequences of disclosure for Attorney X's client. The Kantian framework underlying the Code's truthfulness provisions treats the obligation to correct a known material misrepresentation as a duty that holds regardless of outcome. Engineer A cannot coherently universalize a maxim permitting forensic experts to suppress discovered data inaccuracies when disclosure would harm their client's negotiating position, because such a universalized maxim would destroy the epistemic foundation upon which forensic expert testimony derives its value in legal proceedings. The duty therefore runs unconditionally: Engineer A fulfilled the categorical obligation by immediately advising Attorney X, and that fulfillment is ethically correct independent of whether it weakened the settlement position. The adverse consequence to the client does not retroactively undermine the ethical correctness of the disclosure — it merely illustrates the tension between deontological duty and consequentialist preference that the Code resolves in favor of truthfulness. Critically, the deontological analysis also forecloses the faithful agent duty as a competing categorical obligation capable of overriding truthfulness: the faithful agent role is instrumental and bounded, while the truthfulness duty is foundational and unbounded within the professional ethics framework.
From a consequentialist perspective, the systemic harm to legal process integrity from permitting an inaccurate forensic report to remain operative during settlement negotiations categorically outweighs the particularized harm to Attorney X's client from a weakened negotiating position. The consequentialist calculus must account not only for the immediate parties but for the broader institutional effects: if forensic engineers were permitted — or expected — to remain silent about discovered data inaccuracies when disclosure would disadvantage their retaining client, the reliability of forensic expert testimony as an institution would be systematically degraded. Courts, opposing parties, and the public would lose the ability to trust that submitted forensic reports represent the expert's genuine and current best assessment of the technical facts. This systemic harm aggregates across all future cases in which forensic experts might face similar pressures, producing a far larger expected harm than the loss of negotiating advantage in any single case. Moreover, the consequentialist analysis must recognize that the injured client's interest in a favorable settlement is not a legitimate interest in a settlement inflated by inaccurate technical findings — it is an interest in a settlement that accurately reflects the defendant's actual liability. A settlement based on erroneous causation conclusions does not serve the injured client's genuine interests; it merely produces a number that may be higher or lower than the accurate figure, with no principled relationship to actual harm.
From a virtue ethics perspective, Engineer A's treatment of the corrective disclosure obligation as non-negotiable — even under the pressure of an active settlement context — is precisely the expression of the professional virtues of intellectual honesty and integrity that the forensic engineering role demands. Virtue ethics asks not merely what rule applies but what a person of excellent professional character would do. A forensic engineer of excellent character does not experience the discovery of a material data error as a strategic problem to be managed in light of client interests; they experience it as an immediate professional obligation that admits no deferral. The virtue of intellectual honesty requires Engineer A to hold the accuracy of the technical record as a value that supersedes the convenience of the current litigation posture. The virtue of integrity requires that Engineer A's external conduct — advising Attorney X immediately — be consistent with the internal recognition that the submitted report no longer represents Engineer A's genuine professional conclusions. Silence in the face of a known material inaccuracy would constitute a form of professional self-betrayal that virtue ethics identifies as a corruption of character, not merely a rule violation. The adversarial settlement context, far from providing a virtue-based justification for silence, actually heightens the demand for these virtues precisely because the pressure to remain silent is greatest.
If Engineer A had discovered the data inaccuracy before submitting the report rather than after, the ethical obligation to disclose — in the sense of correcting the report before submission — would have been identical in character but qualitatively less demanding in its corrective mechanics. Pre-submission discovery requires only that Engineer A revise the report to reflect accurate data before it enters the legal process; no external disclosure obligation arises because the misrepresentation has not yet been made. Post-submission discovery, by contrast, creates a qualitatively distinct and more demanding corrective obligation because the inaccurate report has already been introduced into an active legal proceeding and is being relied upon by Attorney X in negotiations. The post-submission context requires not merely internal correction but affirmative external disclosure — Engineer A must actively communicate the error to Attorney X and ensure the corrected conclusions replace the erroneous ones in the negotiating context. This distinction is ethically significant: the post-submission scenario involves an ongoing misrepresentation that Engineer A has a duty to interrupt, whereas the pre-submission scenario involves a potential misrepresentation that Engineer A has a duty to prevent. The urgency is therefore heightened in the post-submission context because each moment of inaction allows the misrepresentation to continue operating on the legal process.
If settlement negotiations had already concluded and a settlement agreement had been signed before Engineer A discovered the data inaccuracy, Engineer A's ethical obligations would differ materially in scope and direction from the pre-settlement disclosure duty. In the post-settlement scenario, disclosure to Attorney X alone would be insufficient because the legal proceeding has produced a binding outcome that may have been materially shaped by the inaccurate report. Engineer A's obligations would extend to considering whether the court, the opposing party, or other relevant authorities need to be informed, particularly if the settlement was judicially approved or if the inaccurate findings influenced a court record. The public welfare paramount principle and the non-deception constraint do not terminate upon settlement conclusion; they persist as long as the erroneous report remains part of a legal record capable of influencing future proceedings, establishing precedent, or being relied upon in related litigation. The post-settlement context also raises the question of whether Engineer A has an obligation to prepare and make available the corrected analysis, independent of whether any party requests it, so that the accurate technical record exists and can be accessed if the matter is reopened or if related claims arise. This represents a broader and more complex disclosure obligation than the pre-settlement duty, which is satisfied by immediate disclosure to Attorney X.
If Engineer A had chosen to remain silent about the data inaccuracy on the grounds that the attorney-client relationship imposed a duty of confidentiality, that confidentiality rationale would not constitute a legitimate ethical defense under the NSPE Code and would represent a fundamental misapplication of the faithful agent principle. The faithful agent obligation requires Engineer A to serve Attorney X's legitimate professional interests — which include receiving accurate technical information necessary to conduct the litigation ethically and effectively — not to protect Attorney X from information that is inconvenient to the current litigation strategy. Confidentiality within the forensic expert engagement applies to the contents of the report and the attorney's litigation strategy; it does not apply to Engineer A's own professional obligation to correct a material error in Engineer A's own work product. To invoke confidentiality as a basis for suppressing a known material inaccuracy in a submitted forensic report would be to weaponize the faithful agent principle against the very truthfulness obligations that give the forensic expert role its professional legitimacy. The Code's truthfulness provisions categorically foreclose this defense: Code provision III.1.a. imposes an unqualified obligation to acknowledge errors, and Code provision III.3.a. prohibits statements containing material misrepresentations or omissions — neither provision contains a confidentiality exception that would permit Engineer A to remain silent about a discovered data inaccuracy.
The case resolves the tension between the Faithful Agent Obligation and the Truthfulness Obligation by establishing a clear hierarchical ordering: Engineer A's duty of loyalty to Attorney X is real and operative, but it is bounded by the non-negotiable floor of truthfulness and error correction. The faithful agent principle does not authorize Engineer A to remain silent about a discovered data inaccuracy simply because disclosure may harm the client's negotiating position. Rather, the faithful agent obligation is properly understood as requiring Engineer A to serve Attorney X's legitimate professional interests — which cannot include reliance on a report Engineer A now knows to be materially inaccurate. This case teaches that the faithful agent principle is not a trump card that overrides truthfulness; instead, it is a principle that operates within the space defined by the Code's honesty provisions. When those provisions are triggered — as they are upon discovery of a material data error — the faithful agent obligation recedes to the extent it conflicts with the duty to disclose. The resolution is not a balancing test in which client loyalty and truthfulness are weighed against each other; it is a categorical subordination of client loyalty to truthfulness in the forensic expert context.
The Adversarial Context Non-Exemption principle and the Public Welfare Paramount principle together resolve the tension raised by the adversarial litigation setting in a decisive and instructive way: the fact that Engineer A is operating as a retained expert within an adversarial proceeding does not transform Engineer A into an advocate whose obligations are defined by the client's litigation strategy. The case establishes that the adversarial structure of settlement negotiations is ethically irrelevant to Engineer A's corrective disclosure obligation. This is significant because it forecloses a potentially tempting rationalization — that the adversarial nature of litigation creates a zone of permissible silence for retained experts who discover inconvenient facts. The principle synthesis here is that the adversarial context, rather than relaxing Engineer A's objectivity duties, actually heightens the importance of those duties, because the legal process depends on forensic experts maintaining integrity precisely when adversarial pressures are greatest. The Client Disservice Through Incomplete Reporting Prohibition reinforces this synthesis: allowing an inaccurate report to remain operative in settlement negotiations does not serve the client's genuine long-term interests, even if it appears to serve the client's short-term negotiating position. A settlement built on inaccurate forensic data is a structurally compromised outcome that disserves all parties, including Attorney X's client.
The interaction between the Error Acknowledgment and Corrective Disclosure Obligation and the Forensic Report Integrity in Active Litigation Context principle reveals that these two principles are not genuinely in tension in this case, despite the superficial appearance of conflict. A concern might be raised that immediate disclosure of the data inaccuracy could disrupt ongoing negotiations before a corrected analysis is prepared, thereby compromising the integrity of the legal process. However, the principle synthesis that emerges from this case is that forensic report integrity is achieved through accuracy and transparency, not through the uninterrupted continuation of negotiations premised on flawed data. The integrity of active litigation is not served by allowing an inaccurate expert report to remain operative; it is served by ensuring that the legal process operates on truthful technical foundations. Accordingly, the temporal urgency constraint — which the Board identifies as critically important given that negotiations were ongoing — does not create a conflict between these principles but instead reinforces their alignment: the sooner the error is disclosed, the sooner the legal process can be corrected, and the more fully forensic report integrity is preserved. This synthesis also answers the counterfactual question about post-settlement discovery: the pre-settlement timing does not merely create urgency, it creates a qualitatively distinct opportunity to prevent the legal process from being concluded on false premises — an opportunity that carries independent ethical weight and that the Code's provisions on truthfulness and error acknowledgment require Engineer A to seize immediately.
Upon discovering that the data underlying the submitted forensic report was inaccurate and that accurate data would yield materially different conclusions, what action must Engineer A take with respect to Attorney X during active settlement negotiations?
Engineer A's affirmative obligation to immediately disclose a discovered material data inaccuracy to Attorney X, notwithstanding active settlement negotiations and the adversarial litigation context
Immediately and affirmatively advise Attorney X of the discovered data inaccuracy and the corrected conclusions, treating disclosure as a non-deferrable professional obligation regardless of the active settlement negotiations
Notify Attorney X of the discovered inaccuracy while simultaneously requesting Attorney X's guidance on timing and framing of any corrective disclosure, deferring to the attorney's judgment about when and how to introduce the corrected findings into the settlement process
Prepare a corrected supplemental report and hold it in readiness for disclosure at the conclusion of the current negotiation round, on the grounds that introducing the correction mid-negotiation would disrupt the legal process before the corrected analysis can be properly reviewed and contextualized by all parties
If Attorney X instructs Engineer A to suppress the corrected findings and continue relying on the original inaccurate report during settlement negotiations, what action must Engineer A take?
The scope and escalation of Engineer A's disclosure obligation when Attorney X, upon being informed of the data inaccuracy, instructs Engineer A to suppress the corrected findings and proceed with the original report during settlement negotiations
Refuse Attorney X's suppression instruction, insist on the corrected findings being introduced into the settlement process, and if Attorney X persists, withdraw from the engagement while preserving the obligation to ensure the corrected analysis is not suppressed in a manner that corrupts the legal process
Comply with Attorney X's instruction to defer introduction of the corrected findings until after the current negotiation round concludes, on the grounds that the attorney bears professional responsibility for litigation strategy decisions and Engineer A's corrective obligation is satisfied by having disclosed the inaccuracy to the retaining attorney
Refuse Attorney X's suppression instruction and, upon Attorney X's persistence, immediately escalate disclosure directly to opposing counsel and the court without first withdrawing from the engagement, on the grounds that the erroneous report's active role in negotiations affecting third parties creates an immediate public welfare obligation that supersedes the attorney-client channel
Does the post-submission, pre-settlement timing of Engineer A's discovery of the data inaccuracy create a qualitatively distinct and more demanding corrective obligation than pre-submission discovery would have imposed, and does the source of the data inaccuracy — whether arising from methodological deficiency or external circumstances — affect the character of Engineer A's ethical obligations?
Whether the post-submission timing of Engineer A's discovery — after report submission but before settlement conclusion — creates a qualitatively distinct and heightened corrective obligation relative to pre-submission discovery, and whether Engineer A's original investigative methodology constitutes a separate and independently cognizable ethical issue
Treat the post-submission discovery as imposing an immediate and affirmative external disclosure obligation to Attorney X — qualitatively more demanding than a pre-submission correction duty — and simultaneously document the source of the data inaccuracy to determine whether the original investigative methodology was itself deficient and whether that deficiency requires separate disclosure
Treat the post-submission discovery as imposing the same corrective obligation that would have applied pre-submission — revise the analysis and provide the corrected report to Attorney X without separately characterizing the disclosure as more urgent or more demanding than a standard report revision, on the grounds that the truthfulness obligation is binary and does not vary in intensity based on the procedural posture of the litigation
Disclose the corrected findings to Attorney X while expressly limiting the disclosure to the post-discovery correction obligation, deferring any examination of whether the original investigative methodology was deficient until after the settlement context is resolved, on the grounds that introducing a methodological critique of Engineer A's own prior work simultaneously with the corrective disclosure would compound the disruption to the legal process and exceed the scope of the immediate ethical obligation
Engineer A Dock Foundation Design Engineer
Upon discovering that the submitted forensic report contains a material data inaccuracy that renders its conclusions invalid — while Attorney X is actively using that report in settlement negotiations — what action must Engineer A take, and does the adversarial litigation context or the potential harm to the client's settlement position alter that obligation?
Engineer A's affirmative obligation to immediately disclose a discovered data inaccuracy to Attorney X during active settlement negotiations, notwithstanding the adversarial litigation context and potential harm to the client's negotiating position
Immediately advise Attorney X of the data inaccuracy and its effect on the report's conclusions, without awaiting preparation of a corrected analysis, so that Attorney X can make informed decisions about the ongoing negotiations
Notify Attorney X of the discovered inaccuracy while simultaneously preparing the corrected analysis, deferring formal disclosure to Attorney X until the replacement report is ready so that the disclosure is accompanied by actionable corrected findings rather than an unresolved gap
Advise Attorney X of the inaccuracy and recommend suspension of settlement negotiations pending issuance of a corrected report, framing the disclosure as a litigation management recommendation within the scope of the forensic engagement rather than as a unilateral corrective action
If Attorney X instructs Engineer A to suppress the corrected findings and continue using the inaccurate report in settlement negotiations, what must Engineer A do, and does Engineer A's disclosure obligation extend beyond Attorney X to the court, the opposing party, or the public?
The scope and escalation of Engineer A's disclosure obligation when Attorney X, upon being informed of the data inaccuracy, instructs Engineer A to suppress the corrected findings and proceed with the original report — and whether Engineer A's obligations extend beyond the attorney-client channel to the court, opposing party, or public
Refuse Attorney X's suppression instruction, insist that the corrected findings replace the original report in the negotiating record, and if Attorney X persists, withdraw from the engagement while preserving the right to escalate disclosure to the court or opposing counsel to prevent the inaccurate report from producing a binding settlement outcome
Refuse Attorney X's suppression instruction and withdraw from the engagement, treating withdrawal as the full discharge of Engineer A's professional obligation on the grounds that Engineer A is no longer a participant in the proceeding and the attorney bears sole responsibility for subsequent use of the original report
Comply with Attorney X's instruction to defer disclosure of the corrected findings until after settlement concludes, on the grounds that the attorney — as the licensed legal professional responsible for the proceeding — is the appropriate decision-maker regarding the timing and manner in which technical findings enter the negotiating record, and that Engineer A's role as faithful agent requires deference to that judgment within the litigation context
When Engineer B omits pile driving records from a forensic report prepared in an adversarial litigation context, offering an explanation that is contradicted by the scope of the engagement and the available evidence, does that omission constitute a violation of the report completeness and methodological fidelity obligations under the NSPE Code, and what action is required to remedy it?
Whether Engineer B's omission of pile driving records from the forensic report — and the contradictory professional explanation offered for that omission — constitutes an independent ethical violation of report completeness and methodological fidelity obligations, distinct from any disclosure obligation arising after submission
Include the pile driving records in the forensic report with a transparent professional assessment of their reliability, clearly identifying any methodological limitations, so that the retaining attorney and all parties relying on the report have access to the complete evidentiary record
Omit the pile driving records from the report body but disclose their existence and Engineer B's professional assessment of their reliability in a separate technical memorandum provided to the retaining attorney, leaving to the attorney the decision about whether and how to introduce them into the proceeding
Omit the pile driving records from the report on the grounds that the engagement scope as defined by the retaining attorney did not require their analysis, and document the scope limitation in the report's methodology section without separately disclosing the existence of the omitted records to the attorney or opposing party
Data Inaccuracy Discovered (Event 3) → Conclusions Rendered Invalid (Event 4)
Disclose Data Inaccuracy to Attorney (Action 4) → Legal Process Integrity Compromised (Event 5) — PREVENTION pathway
Engineer A Adversarial Context Non-Justification Recognition Capability
Adversarial Context Non-Justification Recognition Capability
Engineer A must possess the capability to recognize that the adversarial nature of the litigation and settlement context does not justify allowing inaccurate data and conclusions to stand in the submitted forensic report, and to apply the same completeness and correction standards as would apply in a non-adversarial professional context.
Engineer A's forensic report was submitted during active settlement negotiations between Attorney X and the defendant's attorney, creating potential pressure to allow inaccurate conclusions to stand rather than disrupt the settlement process.
The professional obligation to correct the forensic report despite the active settlement negotiations and the potential disruption to Attorney X's litigation strategy.
Engineer A discovers that the data upon which Engineer A based his report conclusions was inaccurate
Engineer A Adversarial Context Non-Justification Recognition Forensic Correction
Engineer A was required to recognize that the adversarial nature of the civil litigation and active settlement negotiations did not justify deferring or withholding correction of the discovered data inaccuracy in the submitted forensic report — applying the same completeness and objectivity standards as in non-adversarial professional contexts.
Engineer A discovered data inaccuracy during active settlement negotiations, creating pressure to defer disclosure — which the BER determined did not exempt Engineer A from the immediate correction obligation.
The affirmative obligation to immediately advise Attorney X of the data inaccuracy despite the active settlement negotiations, recognizing that facts are not adversarial even when interests are polarizing
Engineer A had an affirmative obligation to step forward and immediately advise Attorney X
Professional engineers are frequently called upon and play a critical role as forensic engineering experts in connection with civil litigation. These professional engineers have an ethical responsibility to perform these services with honesty and integrity
Since Attorney X was in the middle of negotiations with the defendant's attorney, which may or may not have resulted in a settlement of the case, this was critically important information for Attorney X to have in his possession
Engineer A Adversarial Context Report Completeness Non-Selectivity
Engineer A's forensic report was prepared in connection with pending litigation. The adversarial context does not excuse Engineer A from correcting the report upon discovering data inaccuracy.
Adversarial Context Report Completeness and Non-Selectivity Obligation
Engineer A, retained in an adversarial litigation context, must produce reports and technical opinions that are complete and non-selective — including correcting the submitted forensic report upon discovering that the underlying data was inaccurate — recognizing that the adversarial context of the engagement does not diminish the professional obligation to objectivity and completeness, and that allowing an inaccurate report to stand without correction constitutes selective omission of material information regardless of the adversarial setting.
Part of Engineer A's duties is to perform forensic engineering services for attorneys in connection with pending litigation.
Upon discovery of the data inaccuracy, before settlement negotiations conclude
Engineer A discovers that the data upon which Engineer A based his report conclusions was inaccurate and that if the more accurate data had been used in his investigation, Engineer A's conclusions would be different.
Engineer A Adversarial Expert Engagement
From retention by Attorney X through conclusion of settlement negotiations
Engineer A is retained by Attorney X to perform a forensic engineering investigation and prepare a written report in connection with a mechanical product failure, which resulted in extensive injuries to the Attorney's client
Adversarial Proceeding Fact Polarization State
Engineer A operating as forensic expert within adversarial settlement proceeding where report conclusions are being used to advance one party's position
Settlement concluded or Engineer A's engagement formally ended
Attorney X retains Engineer A as forensic expert in pending litigation involving mechanical product failure and personal injury
Engineer A Adversarial Non-Advocate Objectivity Obligation in Forensic Report Correction
Engineer A submitted a forensic report to Attorney X during active settlement negotiations and subsequently discovered that the underlying data was inaccurate. The adversarial context and settlement posture did not diminish Engineer A's obligation to correct the report and advise Attorney X immediately.
Forensic Expert Non-Advocate Objectivity in Adversarial Proceeding Obligation
Engineer A was obligated to maintain objectivity and render technically complete and accurate opinions — including correcting the forensic report upon discovering data inaccuracy — regardless of the adversarial context and active settlement negotiations, recognizing that the engineer's role is that of an objective technical expert rather than an advocate for Attorney X's litigation position.
Upon discovery of data inaccuracy; throughout the period of active settlement negotiations
Professional engineers are frequently called upon and play a critical role as forensic engineering experts in connection with civil litigation. These professional engineers have an ethical responsibility to perform these services with honesty and integrity and to be truthful and honest in their professional reports
Engineer A Adversarial Settlement Context Non-Deferral of Forensic Report Correction
Attorney X was in the middle of negotiations with the defendant's attorney when Engineer A discovered the data inaccuracy; the settlement outcome was uncertain and the corrective information was material to the negotiating position
Adversarial Settlement Context Forensic Report Correction Non-Deferral Constraint
The active status of Attorney X's settlement negotiations with the defendant's attorney did not justify Engineer A deferring, suppressing, or withholding correction of the discovered material data inaccuracy — the adversarial settlement context was not a permissible basis for delaying correction, and the critically important nature of the corrective information for the negotiating attorney made immediate disclosure non-negotiable regardless of the potential impact on the settlement outcome.
During the period of active settlement negotiations following Engineer A's discovery of the data inaccuracy
Engineer A Adversarial Settlement Context Non-Exemption from Forensic Report Correction
Engineer A's forensic report was submitted during active settlement negotiations. The adversarial and settlement context creates implicit pressure not to correct conclusions adverse to the attorney's position, but this pressure does not override the professional correction obligation.
Adversarial Settlement Context Non-Exemption from Forensic Report Correction Obligation
Engineer A must recognize that the active status of Attorney X's settlement negotiations with the defendant's attorney does not exempt Engineer A from the obligation to correct the forensic report upon discovering that the underlying data was inaccurate and that accurate data would yield materially different conclusions, and must refrain from treating the settlement context as a justification for withholding the correction.
Upon discovery of the data inaccuracy, regardless of the stage of settlement negotiations
Engineer A Adversarial Settlement Non-Deferral of Error Correction Constraint Instance
Attorney X is in active settlement negotiations with the defendant's attorney at the time Engineer A discovers the data inaccuracy, creating pressure to defer correction until negotiations conclude
Engineer A is constrained from deferring or suppressing correction of the discovered data inaccuracy on the basis that Attorney X is actively engaged in settlement negotiations with the defendant's attorney — the adversarial settlement context does not justify withholding correction of materially inaccurate forensic conclusions.
NSPE Code of Ethics Sections II.3.a, II.5.a; BER Case 95-5; principle that adversarial context does not exempt engineers from objectivity obligations
Engineer A Competing Duties — Truthfulness vs. Attorney Reliance
From discovery of data inaccuracy through resolution by notification or proceeding conclusion
Public relying on integrity of engineering expert reports
Engineer A's simultaneous duty of truthfulness and accuracy (requiring correction of the erroneous report) and duty of faithful agency to retaining attorney (whose settlement strategy relies on the submitted report)
Engineer A notifies Attorney X and issues corrected conclusions, resolving the tension in favor of truthfulness obligation
Attorney X is in the process of settlement negotiations
if the more accurate data had been used in his investigation, Engineer A's conclusions would be different
Engineer A discovers data inaccuracy in submitted report while Attorney X is in active settlement negotiations relying on that report
Engineer A Confidential Information Held — Forensic Findings
From submission of report through conclusion of settlement or formal correction
Engineer A holds confidential forensic findings, report conclusions, and newly discovered data inaccuracy information within the attorney-client privileged litigation context
Settlement concluded, or Engineer A discloses error to Attorney X and corrected report issued
Engineer A submits forensic report to Attorney X within litigation context; subsequently discovers data error creating additional confidential knowledge
Engineer A Confidentiality Non-Bar to Error Correction Constraint Instance
Engineer A holds confidential forensic findings and report conclusions within the attorney-client relationship; the confidentiality constraint shapes how and to whom the discovered inaccuracy may be disclosed
Engineer A's confidentiality obligations within the attorney-client relationship do not bar Engineer A from advising Attorney X of the discovered data inaccuracy — the confidentiality constraint operates within the professional relationship and does not prevent the engineer from correcting errors to the retaining attorney, though it does constrain disclosure of the inaccuracy to external parties without authorization.
NSPE Code of Ethics Section III.4 (confidentiality); attorney-client privilege principles; NSPE Code Section II.3.a (objectivity)
Throughout the forensic engagement and post-submission correction period
{'license': 'Professional Engineer', 'specialty': 'Dock and foundation design', 'litigation_status': 'Co-defendant with municipality'}
Originally retained by the municipality to design a dock on a supporting foundation of 90 piles; subsequently became a defendant in contractor litigation; retained an independent geotechnical consultant to observe test pile driving; testified during mediation regarding geotechnical firm's report and pile set-up strength expectations; later discovered inaccuracies in data underlying his own forensic report conclusions, triggering an obligation to immediately notify Attorney X.
{'type': 'client', 'target': 'Attorney X'}
{'type': 'client', 'target': 'Municipality Client'}
{'type': 'peer', 'target': 'Engineer B Adversarial Litigation Testing Supervisor'}
{'type': 'retained_consultant', 'target': 'Independent Geotechnical Consultant'}
Engineer A was retained by a municipality to design a dock on a supporting foundation of 90 piles.
Engineer A testified that the geotechnical firm's report expected that the piles would gain sufficient additional strength within 30 days
once Engineer A discovered that the data upon which Engineer A based his report conclusions was inaccurate
Engineer A Error Acknowledgment Capability
Error Acknowledgment Obligation Recognition Capability
Engineer A must possess the capability to recognize that the discovery of data inaccuracy underlying the submitted forensic report creates an affirmative obligation to acknowledge the error to Attorney X — including communicating that the report's conclusions were based on inaccurate data and that corrected data would yield different conclusions.
Engineer A discovered post-submission that the data underlying the forensic report conclusions was inaccurate, triggering an error acknowledgment obligation to the retaining attorney.
The professional obligation to acknowledge to Attorney X that the submitted forensic report contains conclusions based on inaccurate data.
Engineer A Error Acknowledgment Forensic Report Data Inaccuracy
Engineer A submitted a forensic report and subsequently discovered that the underlying data was inaccurate. The professional obligation of error acknowledgment requires Engineer A to acknowledge this to Attorney X.
Engineer A must acknowledge to Attorney X that the forensic report submitted contains conclusions based on inaccurate data, and must communicate the nature of the inaccuracy, the corrected data, and the conclusions that would result from use of accurate data — fulfilling the professional obligation of error acknowledgment established by the ethics code.
Promptly upon discovery of the data inaccuracy
Engineer A Error Acknowledgment Obligation
From discovery of data inaccuracy through formal notification to Attorney X and issuance of corrected conclusions
Engineer A's obligation to acknowledge and correct the discovered data inaccuracy that renders the submitted report's conclusions unsupportable
Engineer A formally notifies Attorney X of the error and provides corrected analysis
Engineer A independently discovers that the data underlying the submitted report was inaccurate and that correct data yields different conclusions
Engineer A Faithful Agent Boundary Error Correction Capability
Forensic Expert Faithful Agent Boundary in Error Correction Capability
Engineer A must possess the capability to recognize that the faithful agent obligation owed to Attorney X does not extend to withholding the discovered data inaccuracy from Attorney X, and to correctly identify that notifying Attorney X of the inaccuracy — while leaving strategic decisions to Attorney X — is the proper fulfillment of the faithful agent role.
Engineer A is retained by Attorney X in a faithful agent capacity as forensic expert, and must navigate the boundary between legitimate faithful agent service and impermissible suppression of discovered errors.
The professional obligation to notify Attorney X of the data inaccuracy while respecting Attorney X's authority to make strategic litigation and settlement decisions in response.
Engineer A is retained by Attorney X to perform a forensic engineering investigation and prepare a written report
Engineer A Faithful Agent Boundary Non-Suppression of Error Correction Constraint Instance
Engineer A is retained by Attorney X as a forensic expert and owes faithful agent duties, but discovers post-submission that the report's conclusions are based on inaccurate data — creating tension between faithful agency and the duty to correct
Forensic Expert Faithful Agent Boundary Non-Suppression of Error Correction Constraint
Engineer A's faithful agent obligation to Attorney X does not extend to withholding or suppressing the discovered data inaccuracy from Attorney X — the faithful agent duty is bounded by the overriding obligation to be objective, truthful, and non-deceptive, requiring Engineer A to advise Attorney X of the error and correct the report.
NSPE Code of Ethics Section II.4 (faithful agent), II.3.a (objectivity), II.5.a (non-deception); BER Case 95-5
From discovery of data inaccuracy through completion of corrective action
Engineer A Faithful Agent Boundary Non-Suppression of Error Correction — Attorney X
Engineer A was retained as a forensic expert by Attorney X; the submitted report was being actively relied upon in settlement negotiations when Engineer A discovered the underlying data was inaccurate
Engineer A's faithful agent obligation to Attorney X did not extend to withholding, suppressing, or delaying correction of the discovered material data inaccuracy in the submitted forensic report — the faithful agent duty was bounded by the overriding obligation to be objective, truthful, and non-deceptive, prohibiting Engineer A from treating the attorney's reliance on the report during settlement negotiations as a basis for remaining silent about the discovered error.
NSPE Code of Ethics Sections II.3, II.4; BER Case 95-5
From the moment of discovery of the data inaccuracy through the conclusion of the litigation
professional engineers have an ethical responsibility to perform these services with honesty and integrity and to be truthful and honest in their professional reports
this was critically important information for Attorney X to have in his possession
Engineer A Faithful Agent Boundary in Forensic Report Error Correction
Engineer A is retained by Attorney X as a forensic expert. The faithful agent duty to Attorney X might appear to counsel silence about the discovered inaccuracy during settlement negotiations, but the ethical boundary of the faithful agent duty requires disclosure.
Forensic Expert Faithful Agent Boundary in Error Correction Obligation
Engineer A must recognize that the faithful agent obligation owed to Attorney X does not extend to withholding the discovered data inaccuracy from Attorney X, and that disclosing the inaccuracy and corrected conclusions — even though adverse to Attorney X's current settlement position — constitutes the highest form of faithful agent service by preventing Attorney X from relying on and acting upon inaccurate professional conclusions.
Engineer A is retained by Attorney X to perform a forensic engineering investigation and prepare a written report in connection with a mechanical product failure, which resulted in extensive injuries to the Attorney's client.
Upon discovery of the data inaccuracy and before settlement negotiations conclude
Engineer A Forensic Engagement with Attorney X
From retention by Attorney X through submission of forensic report and continuing through settlement negotiations
Engineer A's professional relationship with Attorney X as retaining attorney
Not yet terminated — relationship persists through settlement negotiations
Attorney X retains Engineer A to perform forensic engineering investigation and prepare written report
Engineer A Forensic Expert Affirmative Error Correction Disclosure
Post-Submission Report Data Inaccuracy Discovery Capability
Engineer A possessed the capability to recognize, upon discovering that the data underlying the submitted forensic report was inaccurate, the affirmative obligation to immediately advise Attorney X — including recognizing that the active settlement negotiations did not exempt Engineer A from this disclosure obligation.
Engineer A submitted a forensic report to Attorney X during active settlement negotiations and subsequently discovered that the underlying data was inaccurate, triggering an affirmative obligation to immediately notify Attorney X.
Recognition that corrected data would yield different conclusions and that Attorney X required this information during settlement negotiations with the defendant's attorney
once Engineer A discovered that the data upon which Engineer A based his report conclusions was inaccurate and that if the more accurate data had been used in his investigation, Engineer A's conclusions would be different, Engineer A had an affirmative obligation to step forward and immediately advise Attorney X
Engineer A Forensic Expert Faithful Agent Boundary Error Correction
Engineer A was required to recognize that the faithful agent obligation owed to Attorney X did not extend to withholding or delaying notification of the discovered data inaccuracy — that the boundary of faithful agent service required disclosure rather than suppression of the error.
Engineer A owed faithful agent duties to Attorney X as retaining counsel, but those duties did not extend to concealing a discovered data error that materially affected the forensic report's conclusions.
The affirmative obligation to notify Attorney X of the inaccuracy while leaving Attorney X to make strategic decisions about how to proceed with settlement negotiations
Engineer A Forensic Expert Faithful Agent Boundary in Error Correction to Attorney X
Engineer A was retained by Attorney X as a forensic expert. Upon discovering data inaccuracy post-submission, Engineer A faced the question of whether faithful agent duty to Attorney X required withholding the correction during active settlement negotiations. The Board established that faithful agent duty does not extend to suppressing error correction.
Engineer A's faithful agent obligation to Attorney X did not extend to suppressing or withholding correction of the discovered data inaccuracy in the submitted forensic report; correcting the report constituted the highest form of faithful agent service by preventing Attorney X from relying on inaccurate conclusions in settlement negotiations.
Engineer A Forensic Expert Honesty and Integrity Capability
Forensic Expert Witness Honesty and Integrity in Report Preparation Capability
Engineer A possessed the capability to be honest and truthful in the forensic report submitted to Attorney X, and upon discovering that the report's conclusions were based on inaccurate data, to acknowledge this to Attorney X and communicate the corrected findings with integrity regardless of the adversarial context.
Engineer A submitted a forensic report to Attorney X during active settlement negotiations and subsequently discovered that the underlying data was inaccurate.
The professional obligation to notify Attorney X that the submitted report contains conclusions based on inaccurate data and that corrected data would yield different conclusions.
Engineer A Forensic Expert Witness Objectivity Adversarial Context
Forensic Expert Witness Objectivity Maintenance Capability
Engineer A was required to maintain objectivity in the forensic investigation and report — including correcting the report upon discovering data inaccuracy — regardless of the adversarial litigation and settlement context.
Engineer A served as a forensic expert in civil litigation and was obligated to maintain objectivity including through post-submission error correction.
The obligation to correct the forensic report conclusions upon discovering that the underlying data was inaccurate, maintaining the same objectivity standards as in non-adversarial professional contexts
Engineer A Forensic Expert Witness Objectivity Capability
Engineer A possessed the capability to conduct the forensic investigation and render opinions based on technical evidence and professional judgment, and upon discovering data inaccuracy, to maintain objectivity by correcting the record rather than allowing inaccurate conclusions to stand in service of Attorney X's litigation position.
Engineer A was retained as a forensic expert in civil litigation involving a mechanical product failure causing personal injuries, and submitted a report during active settlement negotiations.
Engineer A's recognition that the data underlying the report conclusions was inaccurate and that corrected data would yield different conclusions — requiring correction regardless of the adversarial context.
Engineer A conducts the investigation for Attorney X, prepares the written report along with conclusions regarding the cause of the accident, and submits the written report to Attorney X.
Engineer A Forensic Expert Witness Objectivity in Adversarial Proceeding
Engineer A was retained as a forensic expert by Attorney X. The discovery of data inaccuracy after report submission tests whether Engineer A will maintain objectivity or subordinate professional judgment to the attorney's litigation interests.
Forensic Expert Witness Objectivity in Adversarial Proceeding Obligation
Engineer A, as a retained forensic expert in litigation, must render objective, technically grounded professional opinions based on accurate data — and upon discovering that the data underlying the submitted report was inaccurate, must correct the report to reflect conclusions based on accurate data, functioning as an assistant to the fact-finding process rather than as an advocate for Attorney X's settlement position.
Throughout the forensic engagement, and specifically upon discovery of the data inaccuracy
Engineer A Forensic Report Active Litigation Reliance
From submission of Engineer A's report through the point at which Attorney X is advised of the data inaccuracy
Attorney X was in the middle of negotiations with the defendant's attorney, which may or may not have resulted in a settlement of the case
Forensic Report Active Litigation Reliance State
Engineer A's forensic report being actively relied upon by Attorney X in ongoing settlement negotiations with the defendant's attorney
Engineer A's immediate disclosure to Attorney X of the data inaccuracy and its effect on the report's conclusions
Attorney X's active use of Engineer A's submitted forensic report as the basis for settlement negotiations with the defendant's attorney
{'license': 'Professional Engineer', 'discovery_timing': 'During active settlement negotiations', 'obligation': 'Immediate affirmative notification to retaining attorney'}
Having submitted a forensic report to Attorney X during active settlement negotiations, Engineer A subsequently discovered that the data underlying the report's conclusions was inaccurate and that use of more accurate data would have led to different conclusions, triggering an affirmative obligation to immediately notify Attorney X of the error so that inaccurate conclusions would not be used to the detriment of any party or the integrity of the legal process.
{'type': 'client', 'target': 'Attorney X Litigation Client'}
{'type': 'self', 'target': 'Engineer A Dock Foundation Design Engineer'}
Forensic Report Error Discovering Engineer
once Engineer A discovered that the data upon which Engineer A based his report conclusions was inaccurate and that if the more accurate data had been used in his investigation, Engineer A's conclusions would be different
Engineer A Forensic Report Error Discovering Engineer
{'license': 'Professional Engineer', 'specialty': 'Forensic engineering / mechanical product failure analysis', 'report_status': 'Submitted to retaining attorney prior to error discovery', 'error_nature': 'Inaccurate foundational data leading to potentially incorrect conclusions'}
Performed forensic engineering investigation of a mechanical product failure, prepared and submitted a written report with conclusions to Attorney X, and subsequently discovered that the underlying data was inaccurate and that accurate data would have led to different conclusions — during active settlement negotiations.
{'type': 'retained_by', 'target': 'Attorney X'}
{'type': 'service_provider_to', 'target': 'Attorney X Client (injured party)'}
Engineer A conducts the investigation for Attorney X, prepares the written report along with conclusions regarding the cause of the accident
Engineer A Forensic Report Integrity in Active Litigation Context
Forensic report on mechanical product failure submitted to Attorney X
Settlement negotiations between Attorney X and defendant's attorney
Engineer A's forensic report remained operative during active settlement negotiations, and the discovery of inaccurate underlying data triggered an obligation to disclose to Attorney X and advocate for correction — even though doing so might disadvantage Attorney X's negotiating position — because the engineer's duty to truthful professional reporting is not subordinated by the adversarial interests of the retaining party
The ongoing accuracy obligation attached to the report throughout the period it remained operative in settlement negotiations — submission did not discharge the obligation, which continued until the report was corrected or the proceeding concluded
Forensic Report Integrity in Active Litigation Context
Forensic report integrity obligation superseded client loyalty and adversarial context — the engineer could not allow an inaccurate report to influence settlement negotiations
Engineer A Forensic Report Submitted — Data Error Discovered
From the moment Engineer A discovers the data inaccuracy, continuing through the active settlement negotiations
Post-Submission Report Error Discovery State
Engineer A's forensic report submitted to Attorney X, now known to be based on inaccurate data with materially different correct conclusions
Engineer A notifying Attorney X of the error and issuing corrected conclusions, or conclusion of settlement proceedings
Engineer A discovers that the data underlying the submitted report's conclusions was inaccurate and that accurate data would yield different conclusions
Engineer A Honesty in Professional Representations Forensic Report Correction
Engineer A submitted a forensic report with conclusions based on data that was subsequently discovered to be inaccurate. The report as submitted is materially incomplete and potentially misleading because it does not reflect conclusions based on accurate data.
Objective and Complete Reporting Obligation
Engineer A must be objective and truthful in the forensic report submitted to Attorney X, and upon discovering that the report's conclusions were based on inaccurate data, must correct the report to include accurate data and the conclusions that flow from it — recognizing that the original report, as submitted, contains a material inaccuracy that renders it incomplete and potentially misleading.
Engineer A Mechanical Product Failure Forensic Competence
Mechanical Product Failure Forensic Investigation Competence
Engineer A possessed domain-specific technical competence to conduct forensic engineering investigations of mechanical product failures, prepare written reports with conclusions regarding accident causation, and identify when data underlying prior conclusions was inaccurate and how corrected data would alter those conclusions.
Engineer A was retained to investigate a mechanical product failure that resulted in extensive injuries to Attorney X's client, and conducted the investigation and prepared a written report with conclusions.
Engineer A's conduct of the forensic investigation, preparation of the written report with conclusions regarding the cause of the accident, and subsequent discovery that the underlying data was inaccurate.
Engineer A Mechanical Product Failure Forensic Investigation
Engineer A possessed forensic engineering competence to investigate mechanical product and foundation failures — including dock pile foundation design and adequacy assessment — sufficient to prepare a written forensic report with conclusions submitted to retaining counsel in civil litigation.
Engineer A was retained to conduct a forensic investigation of the dock pile foundation failure that was the subject of civil litigation between the contractor, Engineer A, and the municipality.
Engineer A conducted a forensic investigation of the dock pile foundation, prepared a written report with conclusions submitted to Attorney X, and subsequently discovered that the underlying data was inaccurate
Engineer A was retained by a municipality to design a dock on a supporting foundation of 90 piles
Engineer A Non-Deception Constraint in Forensic Report Submission
Engineer A has submitted a forensic report that is being relied upon in settlement negotiations and has discovered the underlying data is inaccurate, making continued silence a form of deception by omission
Engineer A is constrained by the NSPE Code's non-deception provision from allowing Attorney X to continue relying on and using a forensic report that Engineer A knows to be based on inaccurate data — permitting continued reliance on the known-inaccurate report would constitute a deceptive act by omission.
NSPE Code of Ethics Section II.5.a (avoid deceptive acts); Non-Deception (Constraint) established by ethics code provisions
From the moment of discovery of data inaccuracy onward
Engineer A Objectivity and Truthfulness Constraint in Forensic Expert Role
Engineer A is operating within an adversarial litigation context where the report is being used to advance Attorney X's settlement position, creating structural pressure to subordinate objectivity to client interest
Adversarial Expert Selective Data Omission State
Engineer A, operating as a forensic expert in an adversarial proceeding, is constrained from allowing the adversarial context to justify continued reliance on a report known to contain inaccurate data — the objectivity and truthfulness obligation requires correction regardless of the adversarial posture of the proceeding.
NSPE Code of Ethics Section II.3.a; BER Case 95-5; Engineer Expert Non-Advocate Independence Constraint
Throughout the forensic engagement and post-submission period
Engineer A Post-Submission Data Inaccuracy Correction Constraint Instance
Engineer A submitted a forensic report to Attorney X in connection with a mechanical product failure litigation; after submission but before settlement is concluded, Engineer A discovers the underlying data was inaccurate and accurate data would produce different conclusions
Post-Submission Forensic Report Data Inaccuracy Correction Constraint
Engineer A, having submitted a forensic report to Attorney X with conclusions based on data subsequently discovered to be inaccurate — and where accurate data would produce materially different conclusions — is constrained from remaining silent about the discovered inaccuracy and must immediately advise Attorney X and take corrective action, regardless of the active settlement negotiations.
NSPE Code of Ethics Sections II.3.a (objectivity and truthfulness), II.5.a (non-deception), III.1.a (professional responsibility acknowledgment); BER Case 95-5
From the moment Engineer A discovers the data inaccuracy through completion of corrected report submission
Engineer A Post-Submission Data Inaccuracy Discovery Capability
Engineer A possessed the capability to recognize, following submission of the forensic report to Attorney X, that the data underlying the report's conclusions was inaccurate and that corrected data would yield different conclusions — triggering the professional obligation to notify Attorney X.
Engineer A submitted a forensic report to Attorney X during active settlement negotiations, then subsequently discovered that the underlying data was inaccurate and that corrected data would alter the conclusions.
Engineer A's discovery that the data upon which the report conclusions were based was inaccurate, and recognition that corrected data would produce different conclusions.
Engineer A Post-Submission Data Inaccuracy Immediate Correction Constraint — Attorney X Settlement Context
Engineer A submitted a forensic report to Attorney X in connection with civil litigation; during active settlement negotiations, Engineer A discovered that the data underlying the report's conclusions was inaccurate and that accurate data would produce materially different conclusions
Engineer A, having submitted a forensic report to Attorney X and subsequently discovering that the data underlying the report's conclusions was inaccurate such that accurate data would produce materially different conclusions, was constrained to immediately advise Attorney X of the discovered inaccuracy — this obligation was not defeatable by the active status of settlement negotiations between Attorney X and the defendant's attorney, and the critically important nature of the corrective information for Attorney X's negotiating position made immediate disclosure non-negotiable.
Upon discovery of the data inaccuracy, regardless of the procedural posture of the litigation or settlement negotiations
Engineer A Post-Submission Error Correction Obligation to Attorney X
Active settlement negotiations with defendant's attorney
Potential disadvantage to Attorney X's negotiating position
After submitting a forensic report to Attorney X during active settlement negotiations, Engineer A discovered that the data underlying the report conclusions was inaccurate — triggering an affirmative obligation to immediately advise Attorney X so that the attorney could make informed decisions about ongoing negotiations with the defendant's attorney
The post-submission error correction obligation was heightened by the active litigation context — since Attorney X was in the middle of negotiations that may or may not have resulted in settlement, the corrected information was critically important for the attorney to possess before those negotiations concluded
Post-Submission Error Correction and Disclosure Obligation
once Engineer A discovered that the data upon which Engineer A based his report conclusions was inaccurate and that if the more accurate data had been used in his investigation, Engineer A's conclusions would be different, Engineer A had an affirmative obligation to step forward and immediately advise Attorney X.
The obligation to correct and disclose superseded any concern about disadvantaging the client's negotiating position — the engineer's duty of truthfulness is not subordinated by the adversarial interests of the retaining party
Engineer A Post-Submission Forensic Report Correction Obligation to Attorney X Settlement Context
Engineer A was retained by Attorney X to conduct a forensic investigation of a mechanical product failure. Engineer A submitted a report with conclusions. Subsequently, Engineer A discovered that the data underlying the report conclusions was inaccurate and that accurate data would yield different conclusions. Attorney X was in the middle of settlement negotiations with the defendant's attorney at the time of discovery.
Post-Submission Forensic Report Data Inaccuracy Correction Obligation
Engineer A, having submitted a forensic report to Attorney X during active settlement negotiations and subsequently discovering that the underlying data was inaccurate and that accurate data would yield different conclusions, was obligated to immediately and affirmatively advise Attorney X of the discovered inaccuracy and corrected conclusions, notwithstanding the active settlement negotiations.
Upon discovery that the underlying data was inaccurate and that accurate data would yield materially different conclusions
Engineer A Post-Submission Forensic Report Data Inaccuracy Correction Obligation
Engineer A submitted a forensic report regarding a mechanical product failure to Attorney X, who is engaged in settlement negotiations. Engineer A subsequently discovered that the underlying data was inaccurate and that accurate data would change the conclusions.
Engineer A, having submitted a forensic report to Attorney X during active settlement negotiations and subsequently discovering that the data underlying the report's conclusions was inaccurate and that accurate data would yield different conclusions, is obligated to promptly disclose the discovered data inaccuracy and the corrected conclusions to Attorney X, notwithstanding the active settlement negotiations and any adverse impact on Attorney X's litigation position.
Immediately upon Engineer A's discovery that the underlying data was inaccurate and that accurate data would yield different conclusions, and before settlement negotiations conclude or any further reliance on the original report occurs
Engineer A Post-Submission Report Error Discovery
From the time Engineer A discovered the data inaccuracy through the time Engineer A advises Attorney X
Engineer A's discovery that the data underlying Engineer A's forensic report conclusions was inaccurate and that accurate data would produce materially different conclusions
Engineer A's affirmative disclosure to Attorney X of the data inaccuracy and its effect on conclusions
Engineer A's discovery that the data upon which Engineer A based his report conclusions was inaccurate and that use of more accurate data would yield different conclusions, while Attorney X was in the middle of settlement negotiations
Engineer A Selective Information Omission Recognition Capability
Selective Information Omission Recognition Capability
Engineer A must possess the capability to recognize that allowing the submitted forensic report to stand with conclusions based on inaccurate data — without correction — would constitute a material omission that creates a misleading picture of the technical findings, and to identify the professional obligation to correct the record by notifying Attorney X of the inaccuracy.
Engineer A's submitted forensic report contained conclusions based on inaccurate data, and allowing those conclusions to stand without correction would create a materially misleading professional record.
The professional obligation to notify Attorney X that the report's conclusions were based on inaccurate data rather than allowing the inaccurate conclusions to stand uncorrected.
Engineer A Settlement Context Forensic Report Correction Non-Deferral
Settlement Context Forensic Report Correction Non-Deferral Capability
Engineer A was required to possess the capability to recognize that the active status of settlement negotiations between Attorney X and the defendant's attorney did not justify deferring notification of the discovered data inaccuracy in the submitted forensic report.
Attorney X was actively negotiating settlement with the defendant's attorney when Engineer A discovered the data inaccuracy, creating pressure to defer disclosure — which Engineer A was obligated to resist.
The obligation to immediately advise Attorney X despite the potentially disruptive effect on settlement strategy, recognizing that the settlement context created no exception to the correction obligation
Engineer A Settlement Context Non-Deferral Capability
Engineer A must possess the capability to recognize that the active status of Attorney X's settlement negotiations does not justify deferring notification of the discovered data inaccuracy, and to promptly notify Attorney X despite the potentially disruptive effect on settlement strategy.
Attorney X was in active settlement negotiations with the defendant's attorney when Engineer A discovered the data inaccuracy in the submitted forensic report.
The professional obligation to notify Attorney X of the data inaccuracy immediately upon discovery, without waiting for settlement negotiations to conclude.
Engineer A Temporal Urgency of Error Correction Disclosure Constraint Instance
Settlement negotiations are actively ongoing at the time Engineer A discovers the data inaccuracy, creating a time-sensitive window in which correction must occur before settlement decisions are finalized on the basis of inaccurate conclusions
Engineer A is constrained by temporal urgency to disclose the discovered data inaccuracy to Attorney X promptly — the active status of settlement negotiations means that delay in correction increases the risk that settlement decisions will be made on the basis of materially inaccurate forensic conclusions, making prompt disclosure a time-sensitive professional obligation.
NSPE Code of Ethics Section II.3.a; Temporal Disclosure Urgency Constraint; principle that risk disclosures must be made promptly upon identification
Immediately upon Engineer A's discovery of the data inaccuracy, while settlement negotiations remain active
Following Engineer A's investigation and Engineer A submitting the report to Attorney X, but before the settlement negotiations are concluded, Engineer A discovers that the data upon which Engineer A based his report conclusions was inaccurate
Engineer A conducts forensic investigation before Engineer A submits written report to Attorney X
Engineer A discovers data inaccuracy during settlement negotiations between Attorney X and defendant's attorney
Engineer A submits written report before settlement negotiations conclude
Engineer A submits written report to Attorney X before Engineer A discovers data inaccuracy
Engineer A's obligation to notify Attorney X starts moment of data inaccuracy discovery
Engineer B Adversarial Context Report Completeness Pile Driving Records Omission Violation
Engineer B was retained by the municipality to supervise test pile driving and prepare a forensic report in adversarial litigation. Engineer B's report stated that 19 of 90 piles did not meet safety factor requirements but omitted pile driving records showing essential refusal and wave equation calculations showing strength multiples over requirements. The Board found this constituted an egregious denial of professional duties.
Engineer B was obligated to include all material technical findings in the forensic report — including pile driving records showing that the 19 piles had been driven to essential refusal and wave equation calculations showing strength multiples over design requirements — and was prohibited from selectively omitting those findings to defend the retaining municipality client.
Engineer B did not state anywhere in the report that these 19 piles, according to the pile driving records, had been driven to essential refusal and that, applying accepted wave equation calculations, the piles would have indicated a strength several multiples over the calculated load requirements
During preparation and submission of the forensic report in connection with mediation proceedings
the Board concluded that Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data. This was an egregious denial of the duties and responsibilities of a professional engineer in any setting, whether legal, quasilegal, or nonlegal
Engineer B Adversarial Expert Engagement Without Peer Coordination
Throughout Engineer B's investigation and report preparation period
At no time during the development of Engineer B's report did Engineer B talk to any representative of Engineer A, even though Engineer A's on-site representatives were available to testify as to the accuracy of the pile driving records.
Adversarial Expert Engagement Without Peer Coordination State
Engineer B's conduct of the forensic pile evaluation without any communication with Engineer A or Engineer A's representatives, despite their availability
Not resolved during report preparation; Engineer A queried Engineer B only after the report was issued
Engineer B's retention by the municipality to evaluate pile adequacy in an adversarial proceeding involving Engineer A, without any coordination with or notification to Engineer A
Engineer B Adversarial Litigation Testing Supervisor
{'license': 'Professional Engineer', 'specialty': 'Geotechnical / pile foundation testing', 'retaining_party': 'Municipality', 'ethical_finding': 'Egregious denial of professional duties through selective use of data'}
Retained by the municipality to supervise the driving of several test piles to determine whether piles would gain sufficient strength to meet design calculation requirements; prepared a concluding report finding 19 of 90 piles deficient; omitted from the report that those 19 piles had been driven to essential refusal and that wave equation calculations would show strength multiples over requirements; failed to disclose dynamic test equipment failure; never consulted Engineer A's representatives despite their availability; provided contradictory post-hoc explanations for omissions; found by the Board to have engaged in selective use of data to defend the client municipality.
{'type': 'adversarial_peer', 'target': 'Independent Geotechnical Consultant'}
{'type': 'peer', 'target': 'Engineer A Dock Foundation Design Engineer'}
Adversarial Litigation Testing Supervisor Engineer
the municipality retained Engineer B to supervise the driving of several test piles
At no time during the development of Engineer B's report did Engineer B talk to any representative of Engineer A
Engineer B did not report that the dynamic test equipment had failed.
Engineer B did not state anywhere in the report that these 19 piles...had been driven to essential refusal
Engineer B's concluding report stated that approximately 19 of the 90 piles did not meet the safety factor
This was an egregious denial of the duties and responsibilities of a professional engineer
the Board concluded that Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data
Engineer B Adversarial Non-Advocate Objectivity Obligation Violated in Pile Adequacy Assessment
Engineer B was retained by the municipality in adversarial litigation and assumed the role of advocate rather than objective expert, selectively using data to defend the municipality and omitting material technical findings that were favorable to the opposing party. The Board characterized this as an egregious denial of professional duties.
Engineer B was obligated to render objective, technically grounded professional opinions based on independent analysis of all available facts — including pile driving records and wave equation calculations — functioning as an assistant to the mediating body rather than as an advocate for the retaining municipality, and to resist the structural expectation that the engineer would adopt the partisan advocacy role.
Throughout the forensic engagement including test pile supervision and report preparation
Engineer B Adversarial Non-Advocate Obligation Violated
Test pile driving report for municipality litigation
Engineer B assumed a responsibility to defend the client municipality through selective use of data — omitting pile driving records showing piles were driven to essential refusal, omitting wave equation calculations showing strength multiples over requirements, and failing to report equipment failure — thereby abandoning the non-advocate role required of forensic engineering experts
The adversarial legal context did not permit Engineer B to selectively present data favorable to the municipality while omitting material findings that would have supported Engineer A's position — the non-advocate obligation applied with full force in the mediation context
Engineer Non-Advocate Status in Adversarial Proceedings
Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data. This was an egregious denial of the duties and responsibilities of a professional engineer in any setting, whether legal, quasilegal, or nonlegal
The Board found Engineer B's conduct to be an egregious violation — the adversarial context created no exemption from the obligation to present complete and objective technical findings
Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data. This was an egregious denial of the duties and responsibilities of a professional engineer in any setting, whether legal, quasilegal, or nonlegal, said the Board.
Engineer B did not state anywhere in the report that these 19 piles, according to the pile driving records, had been driven to essential refusal and that, applying accepted wave equation calculations, the piles would have indicated a strength several multiples over the calculated load requirements.
Engineer B Adversarial Objectivity Obligation Violated
Municipality's litigation position regarding pile adequacy
Test pile driving report conclusions about 19 piles
Faithful agent obligation to municipality client
Engineer B, retained by the municipality in adversarial litigation, selectively omitted material technical findings — including pile driving records showing essential refusal, wave equation calculations, and equipment failure — that would have favored Engineer A's position, violating the obligation to maintain the same standard of objectivity and completeness as in non-adversarial contexts
The objectivity obligation required Engineer B to include all material technical findings regardless of which party they favored — the municipality's litigation interests did not justify selective omission of findings that would have supported Engineer A
Adversarial Engagement Objectivity Obligation
Objectivity obligation superseded faithful agent obligation — Engineer B could not serve as a faithful agent by producing a selectively incomplete report that misrepresented the technical reality
Engineer B Adversarial Proceeding Fact Polarization
Throughout the adversarial proceeding in which Engineer B was retained as the municipality's expert
Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data.
The adversarial litigation context in which Engineer B was retained by the municipality, creating structural pressure to subordinate technical completeness to the municipality's partisan advantage
Conclusion of the adversarial proceeding or Engineer B's withdrawal
This was an egregious denial of the duties and responsibilities of a professional engineer in any setting, whether legal, quasilegal, or nonlegal
Engineer B's retention by the municipality in an adversarial proceeding against Engineer A and the contractor, creating a context in which technical facts were selectively preferred or suppressed according to the municipality's interests
Engineer B Available Evidence Consultation Before Adverse Opinion Pile Driving Records Violation
Engineer B formed and published adverse opinions about the adequacy of 19 piles without consulting Engineer A's on-site representatives (who were available), without reviewing pile driving records, and without inquiring from contractors, workers, or others on the job. Engineer B later admitted the records were not reviewed because it was 'not in our scope of work' and then changed the explanation to disbelief of the records.
Available Evidence Consultation Before Adverse Technical Opinion Obligation
Engineer B was obligated to consult all reasonably available evidence — including pile driving records, Engineer A's on-site representatives, contractors, and workers — before publishing adverse conclusions about the adequacy of the 19 piles, and violated this obligation by failing to consult any of these available sources.
At no time during the development of Engineer B's report did Engineer B talk to any representative of Engineer A, even though Engineer A's on-site representatives were available to testify as to the accuracy of the pile driving records
During preparation of the forensic report; before publishing adverse conclusions about pile adequacy
No effort was made by Engineer B to inquire from contractors, workers, or others on the job to verify or refute his theories about why the 19 piles met driving refusal prior to predicted depth
Engineer B Available Evidence Consultation Constraint — Pile Driving Records and On-Site Representatives
Engineer B concluded that 19 piles did not meet safety factor requirements without consulting pile driving records showing refusal or speaking with Engineer A's on-site representatives, contractors, or workers who were available and could have testified to the accuracy of the driving records
Adverse Opinion Available Evidence Consultation Constraint
Engineer B was prohibited from issuing adverse technical opinions about the adequacy of the 19 piles without first consulting all reasonably available evidence sources — including pile driving records, Engineer A's on-site representatives, contractors, and workers — establishing that the failure to consult available witnesses and documentation before rendering adverse conclusions about pile adequacy constituted a violation of the objectivity and completeness obligations of the NSPE Code.
NSPE Code of Ethics Section II.3; BER Case 95-5
During the development of the forensic pile foundation report, prior to finalizing adverse conclusions about the 19 piles
Engineer B Available Evidence Consultation Obligation Violated
Adverse opinion that 19 piles did not meet safety factor requirements
Conclusions about why piles met driving refusal prior to predicted depth
Engineer B rendered adverse opinions about the adequacy of 19 piles without consulting Engineer A's on-site representatives (who were available), without reviewing pile driving records, and without inquiring from contractors or workers — despite all of these evidence sources being accessible and directly relevant to the adverse conclusions
The obligation to consult available evidence before rendering adverse opinions required Engineer B to contact Engineer A's representatives, review primary pile driving records, and inquire from workers — the scope-of-work limitation did not excuse this failure when the evidence was readily accessible
Available Evidence Consultation Obligation Before Adverse Technical Opinion
The available evidence consultation obligation was not discharged by scope limitations — Engineer B's post-hoc admission that records were not reviewed 'because it was not in our scope of work' was found to be an inadequate justification
No effort was made by Engineer B to inquire from contractors, workers, or others on the job to verify or refute his theories about why the 19 piles met driving refusal prior to predicted depth.
Previously, Engineer B had said, 'We didn't look at the pile driving records because it was not in our scope of work.'
Engineer B Available Evidence Consultation Pile Driving Records Witnesses
Adverse Technical Opinion Evidence Consultation Capability
Engineer B lacked or failed to exercise the capability to consult all reasonably available evidence — including pile driving records, Engineer A's on-site representatives, contractors, and workers — before forming and issuing adverse opinions about the adequacy of the 19 piles.
Engineer B formed adverse technical opinions about pile adequacy without consulting available witnesses or reviewing pile driving records, violating the obligation to base professional opinions on established facts and completed professional analysis.
Engineer B never consulted Engineer A's on-site representatives, contractors, or workers, and intentionally disregarded pile driving records when forming the adverse opinion that 19 piles did not meet safety factor requirements
Engineer B Available Witness Non-Consultation
Throughout the period of Engineer B's investigation and report preparation
Available Witness Non-Consultation State
Engineer B's failure to consult Engineer A's on-site representatives, contractors, or workers before finalizing the forensic report
Not resolved; report was submitted without consultation
Engineer B proceeding to finalize and submit a report containing theories about why 19 piles met driving refusal prior to predicted depth without consulting available on-site representatives who could have verified or refuted those theories
Engineer B Client Disservice Through Incomplete Reporting
Municipality's litigation and mediation strategy
Settlement of contractor's extra claim for $300,000
Short-term client preference for report supporting litigation position
Engineer B's omission of pile driving records showing essential refusal and wave equation calculations showing strength multiples over requirements not only violated duties to the profession, but also constituted a disservice to the municipality client — because the incomplete report deprived the municipality of the opportunity to present a rational basis for discounting the 19-pile adequacy concern and may have contributed to an unfavorable settlement outcome
The selective omission of material technical findings that would have supported a more favorable interpretation of pile adequacy disserved the municipality's own interests by presenting an incomplete technical picture that may have undermined the municipality's negotiating position
The complete reporting obligation served the client's genuine long-term interests better than selective reporting — a complete report would have given the municipality stronger technical grounds to contest the contractor's claim
Engineer A and the municipality shared the cost of the settlement with the contractor for $300,000.
Engineer B Client Disservice Through Selective Pile Driving Records Omission
Engineer B's omission of pile driving records showing essential refusal and wave equation calculations showing strength multiples over requirements — while purporting to defend the municipality — actually disserved the municipality by providing an incomplete technical basis that could be challenged and undermined the municipality's litigation position.
Client Disservice Through Selective Reporting Non-Commission Obligation
Engineer B was obligated to refrain from producing a forensic report that selectively omitted pile driving records and wave equation calculations in a manner that disserved the municipality client's actual interests — recognizing that selective omission of material facts deprived the municipality of a rational basis for evaluating the opposing party's position and may have misdirected the municipality's legal conclusions.
Engineer B Client Disservice Through Selective Pile Driving Records Omission Constraint
Engineer B's report concluded 19 piles were inadequate while omitting pile driving records showing refusal and wave equation calculations showing strength several multiples over design requirements — findings that, if included, would have materially altered or undermined the adverse conclusion
Adversarial Context Client Disservice Through Selective Reporting Constraint
Engineer B was prohibited from producing a forensic report that selectively omitted pile driving records showing refusal and wave equation calculations showing adequate pile strength — this selective omission disserved the municipality's genuine interests by potentially misdirecting the client toward an unsupported legal position while exposing the municipality to professional and legal scrutiny for relying on an incomplete expert report.
During the development and submission of the forensic pile foundation report
Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data
Engineer B Comparative Test Condition Replication Constraint — Vibratory Hammer and Pre-Record Drops
Engineer B supervised test pile driving intended to replicate original conditions to assess whether piles would gain sufficient strength; a vibratory hammer was used instead of the original impact hammer, piles were not driven to the same depth, and the hammer was dropped several times before blow count records commenced — conditions that Engineer A's geotechnical consultant testified would have broken the pile bond and undervalued skin friction
Comparative Test Condition Replication Constraint
Engineer B was required to use materially equivalent equipment, methods, and procedural conditions as those used in the original pile driving when supervising the comparative test pile driving — prohibiting the use of a vibratory hammer instead of the original impact hammer, different penetration depth requirements, and pre-record hammer drops that would break the pile bond and undervalue skin friction values — as these material differences invalidated the comparability of the test results and undermined the reliability of the conclusions about pile adequacy.
Driving conditions were not duplicated in driving the test piles in that a vibratory hammer was used for the test piles and not used in the original driving
During the supervision and reporting of the comparative test pile driving program
In the opinion of Engineer A's geotechnical consultant, this would have broken the pile bond and undervalued the skin friction value reported by Engineer B's tests
after the 30-day set up, the driving hammer was dropped several times to start the hammer before the record of blow counts commenced
the test piles were not driven to the same depth of penetration that apparently was required for the plug to form in the original piles
Engineer B Comparative Testing Methodological Fidelity Vibratory Hammer
Comparative Testing Methodological Fidelity Capability
Engineer B lacked or failed to exercise the capability to identify and replicate all material methodological parameters of the original pile driving — including using the same hammer type, achieving the same penetration depth, and avoiding pre-record hammer drops that break pile bond — resulting in a test program that did not validly replicate original conditions.
Engineer B was retained to supervise test pile driving to determine whether piles would gain sufficient strength, but the test program deviated from original conditions in multiple material respects.
Engineer B supervised test pile driving using a vibratory hammer rather than the original hammer type, failed to achieve the same penetration depth required for plug formation, and allowed hammer drops before blow count recording commenced — all of which invalidated the comparative validity of the test results
after the 30-day set up, the driving hammer was dropped several times to start the hammer before the record of blow counts commenced. In the opinion of Engineer A's geotechnical consultant, this would have broken the pile bond and undervalued the skin friction value reported by Engineer B's tests
Engineer B Comparative Testing Methodological Fidelity Vibratory Hammer Equipment Failure Violation
Engineer B supervised test pile driving using a vibratory hammer not used in original driving, allowed pre-record hammer drops that broke pile bond and undervalued skin friction, and failed to report that dynamic test equipment had failed during the test. The test piles were also not driven to the same depth of penetration required for the plug to form in the original piles.
Comparative Testing Methodological Fidelity Obligation
Engineer B was obligated to use methods, equipment, and procedures that faithfully replicated the original pile driving conditions — including the same hammer type and penetration depth requirements — and to disclose in the report all material deviations from original conditions, including use of a vibratory hammer not used in original driving, pre-record hammer drops that broke pile bond, and failure of dynamic test equipment.
During supervision of test pile driving and preparation of the resulting forensic report
Additionally, Engineer B did not report that the dynamic test equipment had failed
the geotechnical consultant testified and showed that dynamic test equipment had failed during the test and that the test piles were not driven to the same depth of penetration that apparently was required for the plug to form in the original piles
Engineer B Compromised Test Condition Replication
During the test pile driving supervised by Engineer B and through the preparation of Engineer B's report relying on those test results
Driving conditions were not duplicated in driving the test piles in that a vibratory hammer was used for the test piles and not used in the original driving.
Compromised Test Condition Replication State
Engineer B's supervision of test pile driving under conditions materially different from the original pile driving conditions
Not resolved; Engineer B's report treated the test results as applicable to the original piles without disclosing the condition differences
Additionally, Engineer B did not report that the dynamic test equipment had failed.
Also, after the 30-day set up, the driving hammer was dropped several times to start the hammer before the record of blow counts commenced.
In the opinion of Engineer A's geotechnical consultant, this would have broken the pile bond and undervalued the skin friction value reported by Engineer B's tests.
Test pile driving conducted using a vibratory hammer (not used in original driving), with dynamic test equipment failure, and with the driving hammer dropped several times before blow count records commenced — conditions materially different from the original pile driving
Engineer B Contradictory Professional Explanation Scope vs Disbelief
Contradictory Professional Explanation Non-Issuance Capability
Engineer B lacked or failed to exercise the capability to maintain consistency in professional explanations for the omission of pile driving records — first claiming the records were outside the scope of work, then claiming they were disbelieved — creating a contradictory pattern that violated professional obligations of honesty and non-deception.
When queried by Engineer A after the report was issued, Engineer B provided contradictory explanations for why pile driving records were omitted from the forensic report.
Engineer B first stated 'We didn't look at the pile driving records because it was not in our scope of work,' then subsequently stated 'We just did not believe the driving records' — two contradictory explanations for the same omission
Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented to allow air to escape from below a closure plate that was included in the pile to separate the concrete fill in the pile from the clay. The driving records look suspicious.'
Engineer B Contradictory Professional Explanation Scope vs Disbelief Violation
When queried by Engineer A after the report was issued, Engineer B provided two contradictory explanations for not reviewing pile driving records: first that it was not in the scope of work, and then that the records were not believed because they 'look suspicious.' These explanations are mutually incompatible — scope limitation implies the records were not consulted at all, while disbelief implies they were consulted and rejected.
Contradictory Professional Explanation Non-Issuance Obligation
Engineer B was obligated to refrain from providing contradictory explanations for the omission of pile driving records from the forensic report — first stating the records were not reviewed because it was 'not in our scope of work,' then substituting the incompatible explanation that the records were not believed — recognizing that contradictory post-hoc justifications violate professional honesty obligations.
When queried by Engineer A after the report was issued by Engineer B, Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented to allow air to escape from below a closure plate that was included in the pile to separate the concrete fill in the pile from the clay. The driving records look suspicious.'
When queried by Engineer A after the forensic report was issued
Engineer B Contradictory Professional Justification Non-Issuance Constraint — Scope vs. Disbelief
When Engineer A queried Engineer B about the omission of pile driving records, Engineer B first stated the records were not in the scope of work, then stated the records were not believed because they looked suspicious — two mutually inconsistent explanations for the same omission
Contradictory Professional Justification Non-Issuance Constraint
Engineer B was prohibited from offering mutually inconsistent explanations for the omission of pile driving records from the forensic report — first claiming the records were outside the scope of work, then claiming the records were not believed — establishing that the engineer must provide a single, consistent, and honest account of the basis for professional decisions, and that offering contradictory justifications constitutes an artfully misleading statement violating the NSPE Code's truthfulness and non-deception provisions.
NSPE Code of Ethics Sections II.3, II.5; BER Case 95-5
When queried by Engineer A after the report was issued by Engineer B, Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented to allow air to escape from below a closure plate'
Engineer B Contradictory Scope Justification for Omitting Driving Records
From the time Engineer B was queried by Engineer A after report issuance through the conclusion of the proceeding
Engineer B's inconsistent explanations for omitting pile driving records from the forensic report
When queried by Engineer A after the report was issued by Engineer B, Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented to allow air to escape from below a closure plate... The driving records look suspicious.'
Engineer A's post-report query to Engineer B about the omission of pile driving records, which elicited two mutually inconsistent justifications
Engineer B Dynamic Pile Test Equipment Failure Non-Disclosure
Dynamic Pile Test Equipment Failure Disclosure Capability
Engineer B lacked or failed to exercise the capability to recognize that dynamic test equipment failure during the test program constituted material information requiring disclosure in the concluding report — omitting this information prevented readers from independently evaluating the reliability and validity of the test results.
Dynamic test equipment failed during Engineer B's supervised test pile driving program, but this failure was not disclosed in Engineer B's concluding report.
Engineer B's concluding report did not disclose that dynamic test equipment had failed during the test, despite this being material to the validity of the test results
Engineer B did not report that the dynamic test equipment had failed
The geotechnical consultant testified and showed that dynamic test equipment had failed during the test
Engineer B Dynamic Test Equipment Failure Disclosure Constraint — Forensic Pile Report
Dynamic test equipment failed during the test pile driving supervised by Engineer B; Engineer A's geotechnical consultant testified and showed that the equipment had failed; Engineer B did not report the equipment failure in the concluding report
Forensic Testing Methodological Consistency and Equipment Failure Disclosure Obligation
Engineer B was required to disclose in the forensic pile foundation report that dynamic test equipment had failed during the comparative test pile driving program — this material methodological limitation directly affected the reliability of the test results and the conclusions drawn from them, and its omission rendered the report incomplete and misleading.
In the forensic pile foundation report submitted following the comparative test pile driving program
Engineer B Forensic Expert Honesty Integrity Selective Data Defense Violation
Engineer B lacked or failed to exercise the capability to maintain objectivity as a forensic expert — instead assuming a responsibility to defend the client municipality through selective use of data, constituting an egregious denial of professional duties in any legal, quasi-legal, or non-legal setting.
Engineer B was retained by the municipality as a forensic expert but produced a report that assumed a responsibility to defend the client rather than render objective professional opinions.
Engineer B's report selectively omitted pile driving records, wave equation calculations, equipment failure disclosure, and available witness testimony — all of which would have supported Engineer A's position — while presenting only data supporting the municipality's litigation position
Engineer B Forensic Expert Honesty and Integrity Selective Data Defense Violation
Engineer B was retained by the municipality in adversarial litigation. The Board found that Engineer B assumed a responsibility to defend the municipality through selective use of data, omitting pile driving records showing essential refusal and wave equation calculations showing strength multiples over requirements, and failing to report equipment failure. This was characterized as an egregious denial of professional duties.
Engineer B was obligated to perform forensic engineering services with honesty and integrity and to refrain from assuming a responsibility to defend the retaining municipality client through selective use of data — conduct the Board characterized as an egregious denial of professional duties in any setting, whether legal, quasi-legal, or non-legal.
Engineer B Methodological Consistency and Equipment Failure Disclosure Obligation Violated
Concluding report on adequacy of 19 piles
Test pile driving program to evaluate whether piles gained sufficient strength
Client interest in clean test results supporting litigation position
Engineer B supervised test pile driving using a vibratory hammer not used in original driving, allowed pre-record hammer drops that broke pile bond and undervalued skin friction, and failed to report that dynamic test equipment had failed — none of these material methodological departures were disclosed in the concluding report
The obligation to ensure methodological consistency and disclose departures required Engineer B to report the equipment failure, the vibratory hammer substitution, and the pre-record hammer drops — all of which materially affected the validity of the skin friction measurements and the conclusions drawn from them
Methodological Consistency Obligation in Comparative Testing
The methodological consistency obligation required disclosure of all material departures regardless of their impact on the client's litigation position
Also, after the 30-day set up, the driving hammer was dropped several times to start the hammer before the record of blow counts commenced. In the opinion of Engineer A's geotechnical consultant, this would have broken the pile bond and undervalued the skin friction value reported by Engineer B's tests.
Engineer B Non-Advocate Objectivity Constraint — Municipal Client Retention
Engineer B was retained by the municipality in adversarial litigation; the Board concluded Engineer B assumed a responsibility to defend the client municipality through selective use of data, constituting an egregious denial of professional duties
Engineer Expert Non-Advocate Independence Constraint
Engineer B, retained by the municipality as a forensic expert, was prohibited from adopting the role of an advocate for the municipality — the engineer's duty was to render objective, technically grounded professional opinions based on independent analysis of all available facts, including pile driving records and wave equation calculations, and Engineer B must not have compromised professional independence by aligning technical opinions with the municipality's adversarial interest in defeating the contractor's claim.
NSPE Code of Ethics Sections II.3, III.7; BER Case 95-5
Throughout the forensic engagement, from initial retention through report submission
Engineer B Pile Foundation Adequacy Wave Equation Analysis Omission
Pile Foundation Adequacy Evaluation Competence
Engineer B possessed technical competence in pile foundation adequacy evaluation but failed to apply wave equation analysis to pile driving records — which would have shown that the 19 piles driven to essential refusal had strength several multiples over calculated load requirements — instead relying solely on skin friction area calculations.
Engineer B was retained as a forensic expert to assess pile adequacy but produced conclusions based on incomplete analytical methods, omitting wave equation analysis of available pile driving records.
Engineer B's report assessed pile adequacy using only skin friction resistance values applied to pile penetration square footage, without applying wave equation calculations to pile driving records showing essential refusal
This opinion was based on the fact that the 19 piles did not reach sufficient depth to develop the full strength when applying skin friction resistance value to the square footage of pile penetration
Engineer B Scope-of-Work Non-Excuse Pile Driving Records Omission
Scope-of-Work Non-Excuse Material Omission Recognition Capability
Engineer B lacked or failed to exercise the capability to recognize that a contractual scope-of-work limitation did not constitute a valid professional justification for omitting pile driving records from the forensic report — invoking scope-of-work as an excuse for failing to review material evidence constituted an ethical violation.
Engineer B invoked scope-of-work limitations as an initial justification for omitting pile driving records showing piles driven to essential refusal — a justification the BER found ethically impermissible.
Engineer B initially claimed pile driving records were outside the scope of work to justify their omission, when in fact scope-of-work limitations cannot excuse omission of material evidence from a forensic report
Engineer B Scope-of-Work Non-Excuse for Material Evidence Omission
Non-disclosure of dynamic test equipment failure
Omission of pile driving records from forensic report
Contractual scope of work with municipality
Engineer B invoked scope-of-work limitations as a justification for not reviewing pile driving records and not reporting equipment failure, while simultaneously rendering adverse conclusions about pile adequacy that the omitted evidence would have materially refuted — the scope limitation did not constitute a complete ethical defense for the material omissions
The scope limitation defined the boundaries of required investigation but did not authorize Engineer B to omit from the report findings already within the engineer's knowledge or to avoid consulting readily available material evidence before rendering adverse conclusions
Scope-of-Work Limitation as Incomplete Ethical Defense
The Board's characterization of Engineer B's conduct as an 'egregious denial of duties' indicates that the scope limitation was not a valid defense — the materiality of the omitted evidence overrode the scope limitation as an ethical justification
Engineer B did not state anywhere in the report that these 19 piles, according to the pile driving records, had been driven to essential refusal
Engineer B Scope-of-Work Non-Excuse for Pile Driving Records Omission Constraint
Engineer B claimed the pile driving records were outside the scope of work as one justification for their omission from the forensic report, despite the records being directly material to the conclusions about pile adequacy
Scope-of-Work Non-Exculpation for Material Evidence Omission Constraint
Engineer B was prohibited from invoking a contractual scope-of-work limitation as justification for omitting pile driving records from the forensic report — the pile driving records showing that the 19 piles had been driven to essential refusal were material evidence bearing directly on the conclusions of the report, and the contractual scope did not excuse their omission when Engineer B was aware of their existence and materiality.
Engineer B Scope-of-Work Non-Excuse for Pile Driving Records Omission Violation
Engineer B initially justified the omission of pile driving records from the forensic report by stating it was 'not in our scope of work.' The pile driving records were readily available and directly relevant to Engineer B's conclusions about whether 19 piles met safety factor requirements. The scope-of-work limitation did not relieve Engineer B of the obligation to include this material evidence.
Scope-of-Work Non-Excuse for Material Evidence Omission Obligation
Engineer B was prohibited from invoking scope-of-work limitations as justification for omitting pile driving records from the forensic report, as those records were readily available and directly relevant to the conclusions being drawn about the adequacy of the 19 piles.
During preparation of the forensic report and when queried about the omission
Engineer B Selective Data Defense Assumption Prohibition — Pile Foundation Forensic Report
Engineer B was retained by the municipality to evaluate 19 piles in the dock foundation litigation; Engineer B's report concluded the piles did not meet safety factor requirements while omitting pile driving records showing refusal and wave equation calculations showing adequate strength
Adversarial Expert Report Material Finding Disclosure Constraint
Engineer B was prohibited from assuming a responsibility to defend the retaining client municipality through selective use of data in the forensic pile foundation report — including omitting pile driving records showing that the 19 piles had been driven to essential refusal, failing to apply accepted wave equation calculations that would have shown pile strength several multiples over design requirements, failing to disclose dynamic test equipment failure, and failing to consult Engineer A's on-site representatives — this selective data use constituted an egregious denial of professional duties in any setting, whether legal, quasi-legal, or non-legal.
Throughout the development and submission of the forensic pile foundation report
Engineer B Selective Data Omission Forensic Report Pile Driving Records
Engineer B lacked or failed to exercise the capability to recognize that omitting pile driving records showing piles driven to essential refusal — and omitting wave equation calculations showing strength multiples over design requirements — constituted selective data use that assumed a responsibility to defend the client rather than render objective professional opinions.
Engineer B was retained by the municipality to supervise test pile driving and assess pile adequacy, but produced a report that selectively omitted material evidence favorable to Engineer A's position.
Engineer B's concluding report omitted pile driving records, wave equation calculations, and equipment failure disclosure — all of which were material to the adequacy assessment of the 19 piles
Engineer B Selective Data Omission in Pile Report
From the time Engineer B prepared and submitted the report through the conclusion of the adversarial proceeding
Public relying on accurate forensic testimony
Client-Aligned Advocacy Displacing Objective Reporting State
Engineer B's forensic report on 19 piles in the dock foundation litigation
Not resolved within the described facts; proceeding ongoing
Engineer B's preparation and submission of a forensic report that omitted pile driving records showing refusal, wave equation calculations indicating adequate strength, and the failure of dynamic test equipment — while concluding that 19 piles did not meet safety factor requirements
Engineer B Selective Information Omission in Pile Report
From submission of Engineer B's report through the conclusion of the adversarial proceeding
Selective Information Omission in Professional Report State
Engineer B's forensic report omitting pile driving records showing refusal, wave equation calculations, and dynamic test equipment failure
Engineer B's submission of a forensic report that omitted material technical information — pile driving records indicating refusal at depth, accepted wave equation calculations showing strength multiples over requirements, and the failure of dynamic test equipment — that would have materially altered the report's conclusions
Engineer B issues report before Engineer A queries Engineer B about omissions
Error Acknowledgment and Corrective Disclosure Obligation Invoked by Engineer A
Settlement negotiations in which the report is operative
Engineer A, having submitted a forensic report to Attorney X and subsequently discovering that the underlying data was inaccurate and that accurate data would yield different conclusions, is obligated to affirmatively acknowledge the error to Attorney X and take steps toward correction — including notifying Attorney X that the report conclusions are unreliable and that a corrected analysis is necessary — rather than suppressing or minimizing the discovered inaccuracy
The obligation to acknowledge errors and pursue corrective disclosure applies with full force in the litigation forensic context — the engineer must notify the retaining attorney immediately, clearly communicate the directional impact of the error on conclusions, and advocate for correction before the inaccurate report influences the settlement outcome
The error acknowledgment obligation is not overridden by the adversarial context or the engineer's relational duty to the retaining attorney; the attorney must be informed so that the attorney can make an informed decision about how to proceed with corrected information
Exclude Pile Driving Records from Report
Exclude Pile Driving Records from Report (Action 5) → Precedent Case Ethical Violation Established (Event 6)
Faithful Agent Obligation Invoked by Engineer A Toward Attorney X
Forensic engineering engagement with Attorney X
Engineer A's role as a retained forensic expert for Attorney X creates a faithful agent obligation to serve Attorney X's interests — but this obligation is bounded by the ethical requirement to disclose discovered data inaccuracies, meaning that faithful agency in this context requires informing Attorney X of the error rather than concealing it to preserve the litigation position
Faithful agency to the retaining attorney is best served by immediate disclosure of discovered errors — the attorney's true interest is in accurate professional advice, not in a report the engineer knows to be inaccurate; concealment would ultimately disserve the attorney's interests
Faithful agency and truthfulness are aligned in this context — both require disclosure to Attorney X; the faithful agent obligation does not extend to concealing known errors that could expose the attorney and client to adverse consequences if the inaccuracy is later discovered
Forensic Engineering Expert Completeness Standard — BER Case 95-5
NSPE Board of Ethical Review professional consensus
Professional Norms Governing Completeness and Impartiality in Forensic Engineering Expert Reports
Forensic Engineering Expert Completeness Standard
No effort was made by Engineer B to inquire from contractors, workers, or others on the job to verify or refute his theories
Applied to Engineer B's conduct in BER Case 95-5 as the benchmark against which selective data use, failure to consult available witnesses, and omission of material technical findings (pile driving records, dynamic test equipment failure, wave equation analysis) were judged to constitute an egregious breach of professional duty; also applied analogically to the current case to establish Engineer A's obligations
Forensic Expert Honesty and Integrity in Civil Litigation Constraint — General Application BER 95-5
The Board's discussion establishes the general principle that forensic engineering experts have an ethical responsibility to perform services with honesty and integrity, citing BER Case 95-5 as instructive regarding expectations when a professional engineer serves as an engineering expert
Professional engineers serving as forensic experts in civil litigation
Professional engineers serving as forensic experts in civil litigation are constrained by an ethical responsibility to perform forensic engineering services with honesty and integrity and to be truthful and honest in professional reports — this constraint applies in any setting, whether legal, quasi-legal, or non-legal, and prohibits selective use of data, failure to consult available evidence, omission of material findings, and assumption of a client-defense advocacy role.
Professional engineers are frequently called upon and play a critical role as forensic engineering experts in connection with civil litigation
Throughout all forensic engineering engagements in connection with civil litigation
These professional engineers have an ethical responsibility to perform these services with honesty and integrity and to be truthful and honest in their professional reports
the Board of Ethical Review believes that BER Case 95-5 is instructive regarding the expectations when a professional engineer serves as an engineering expert
Forensic Report Active in Settlement Negotiations
From submission of the written report through conclusion of settlement negotiations
Engineer A's submitted forensic report being relied upon by Attorney X during active settlement negotiations
Settlement concluded or report formally corrected or withdrawn
Following Engineer A's investigation and Engineer A submitting the report to Attorney X, but before the settlement negotiations are concluded
Engineer A submits written report to Attorney X; Attorney X enters settlement negotiations relying on report conclusions
Forensic Report Integrity in Active Litigation Context Invoked by Engineer A
Active settlement negotiations between Attorney X and defendant's attorney
Engineer A's forensic report, submitted to Attorney X during active settlement negotiations, must be corrected when Engineer A discovers the underlying data was inaccurate — the report's operative status in ongoing settlement proceedings heightens rather than diminishes the obligation to disclose and correct the error
The combination of the report's operative status in settlement negotiations and the engineer's discovery of data inaccuracy creates an immediate and non-deferrable obligation to notify Attorney X — the engineer cannot allow the inaccurate report to serve as the factual basis for a settlement without disclosure of the discovered error
The engineer's professional obligation to report integrity supersedes the relational interest in preserving the retaining party's litigation position; the attorney must be informed and given the opportunity to decide how to proceed with corrected information
Engineer A conducts the investigation for Attorney X, prepares the written report along with conclusions regarding the cause of the accident, and submits the written report to Attorney X
Honesty and Integrity Obligation of Forensic Engineering Experts
Forensic engineering expert services in civil litigation
Attorney-client relationship obligations
The case establishes that professional engineers serving as forensic experts in civil litigation bear an ethical responsibility to perform their services with honesty and integrity and to be truthful and honest in their professional reports — a responsibility that applies equally to Engineer B's selective data use and Engineer A's obligation to correct discovered inaccuracies
In the forensic engineering context, honesty requires both completeness in initial reporting and prompt correction of discovered inaccuracies — the obligation is not discharged by submission of a report but continues as long as the report remains operative
These professional engineers have an ethical responsibility to perform these services with honesty and integrity and to be truthful and honest in their professional reports.
Honesty obligation supersedes client loyalty and adversarial context pressures — the engineer's duty to truthful reporting is not subordinated by the retaining party's litigation interests
Honesty in Professional Representations Invoked by Engineer A in Forensic Report Correction
Forensic report conclusions submitted to Attorney X
Engineer A's professional representations in the forensic report — including the conclusions regarding the cause of the accident — were made on the basis of data Engineer A subsequently discovered to be inaccurate; honesty in professional representations requires Engineer A to correct those representations rather than allowing them to stand as accurate professional conclusions
Honesty in professional representations is a continuing obligation that extends to the correction of representations discovered to be inaccurate after submission — the engineer cannot maintain the original conclusions as honest professional representations once the engineer knows the underlying data was wrong
Engineer A prepares the written report along with conclusions regarding the cause of the accident, and submits the written report to Attorney X
Honesty requires correction; the engineer must notify Attorney X that the original conclusions cannot be maintained as accurate professional representations under the corrected data
Independent Geotechnical Consultant Observer
{'license': 'Professional Engineer (Geotechnical)', 'retaining_party': 'Engineer A', 'role_type': 'Independent observer and expert witness'}
Retained by Engineer A to independently observe the test pile driving supervised by Engineer B; testified and demonstrated that dynamic test equipment had failed during the test, that test piles were not driven to the same depth of penetration as original piles, that a vibratory hammer was used inconsistently with original driving conditions, and that pre-record hammer drops would have broken pile bond and undervalued skin friction values reported by Engineer B.
{'type': 'adversarial_peer', 'target': 'Engineer B Adversarial Litigation Testing Supervisor'}
{'type': 'retained_by', 'target': 'Engineer A Dock Foundation Design Engineer'}
Independent Geotechnical Litigation Observer
An independent geotechnical consultant was retained by Engineer A to observe the test.
this would have broken the pile bond and undervalued the skin friction value reported by Engineer B's tests
Independent Geotechnical Consultant Observer Completeness Testimony
Independent Geotechnical Observation Completeness Capability
The independent geotechnical consultant retained by Engineer A demonstrated the capability to provide complete and objective testimony about all material observations — including dynamic test equipment failure, methodological deviations (vibratory hammer substitution, insufficient penetration depth, pre-record hammer drops) — regardless of which party retained them.
The independent geotechnical consultant was retained by Engineer A to observe the test pile driving supervised by Engineer B, and provided complete testimony about all material methodological deviations and equipment failures observed.
The geotechnical consultant testified and showed that dynamic test equipment had failed during the test, that test piles were not driven to the same depth of penetration, and that pre-record hammer drops would have broken pile bond and undervalued skin friction values
The geotechnical consultant testified and showed that dynamic test equipment had failed during the test and that the test piles were not driven to the same depth of penetration that apparently was required for the plug to form in the original piles
Intellectual Honesty Obligation Invoked by Engineer A in Forensic Report Correction
Engineer A's discovery that the forensic report conclusions would differ under accurate data creates an intellectual honesty obligation to acknowledge the error and its implications, rather than rationalizing the original conclusions or minimizing the significance of the data inaccuracy
Intellectual honesty in the forensic engineering context requires the engineer to confront the full implications of discovered data inaccuracies — including that conclusions would be different — rather than seeking to preserve the original report through rationalization
Intellectual honesty requires full acknowledgment of the error and its directional impact on conclusions; this obligation is not diminished by the inconvenience the correction may cause to the retaining party's litigation position
Legal and professional engineering community
Legal Deposition and Litigation Conduct Standard for Forensic Engineers
Engineer A in navigating obligations during active settlement negotiations
Provides normative context for Engineer A's obligations regarding factual transparency and the distinction between reporting facts and characterizing professional judgments in the context of pending litigation and settlement negotiations
{'role_type': 'Public municipal client and litigation party', 'settlement_contribution': '$300,000 shared with Engineer A'}
Municipal government that originally retained Engineer A to design the dock foundation; co-defendant with Engineer A in contractor litigation; shared $300,000 settlement cost; retained Engineer B to supervise test pile driving to support its litigation position; brought in expert witnesses during mediation.
{'type': 'defendant', 'target': 'Contractor Claimant'}
{'type': 'retaining_party', 'target': 'Engineer B Adversarial Litigation Testing Supervisor'}
Engineer A was retained by a municipality to design a dock
Engineer A and the municipality were both sued by the contractor.
National Society of Professional Engineers
Implicitly invoked as the normative foundation for the Board's conclusions about Engineer A's affirmative obligation to disclose discovered inaccuracies and Engineer B's duty of honesty, integrity, and completeness in forensic expert practice
Engineer A in determining professional obligations upon discovering data inaccuracy
Primary normative authority governing Engineer A's obligation to disclose discovered data inaccuracies to Attorney X and correct the forensic report, grounded in duties of honesty, objectivity, and public safety
Objectivity Obligation of Engineer B in Pile Adequacy Assessment
Concluding report on test pile driving program
Technical assessment of adequacy of 19 piles
Engineer B's obligation to render an objective technical assessment of pile adequacy required inclusion of all material technical findings — pile driving records, wave equation calculations, and equipment failure — regardless of which party those findings favored, rather than selectively presenting only findings consistent with the municipality's litigation position
Objectivity in the forensic engineering context requires that the engineer's conclusions be based on the full evidentiary record, not a selectively filtered subset — the adversarial context heightens rather than diminishes the objectivity obligation because the stakes of biased technical testimony are higher in litigation
Objectivity obligation was absolute in this context — no balancing factor justified the selective omission of material technical findings
Omit Dynamic Test Equipment Failure (Action 6) + Decline to Consult Available Witnesses (Action 7) → Precedent Case Ethical Violation Established (Event 6)
Precedent Case Ethical Violation Established
NSPE and professional engineering community
Professional Report Integrity Standard — Forensic Engineering Context
Engineer A in evaluating obligations regarding the submitted forensic report
Establishes the obligation of Engineer A to maintain the accuracy and integrity of the forensic report submitted to Attorney X, including the duty to correct the record when inaccurate data is discovered before legal proceedings conclude
NSPE and professional engineering community through collective norm development
Professional Responsibility Acknowledgment Standard — Forensic Report Correction
Professional Responsibility Acknowledgment Standard
Engineer A upon discovering inaccurate data underlying forensic report conclusions
Governs Engineer A's duty to acknowledge the data inaccuracy discovered post-report submission, notify Attorney X, and take corrective action by revising conclusions, even during active settlement negotiations
Professional Responsibility Acknowledgment Standard — Forensic Expert Context
Professional Responsibility Acknowledgment Standard as Applied to Forensic Engineering Experts
NSPE Board of Ethical Review in analyzing Engineer A's post-discovery obligations
Applied to Engineer A's obligation to immediately advise Attorney X upon discovering that the data underlying his report conclusions was inaccurate and that more accurate data would have led to different conclusions, establishing the affirmative duty to correct and disclose even during active settlement negotiations
Public Welfare Paramount in Forensic Engineering Expert Role
Forensic expert role in civil litigation and mediation
Technical integrity of pile adequacy determination
The Board's characterization of Engineer B's selective data use as an 'egregious denial of duties' in 'any setting, whether legal, quasilegal, or nonlegal' reflects the fundamental principle that the public welfare obligation — including the integrity of the justice system and the reliability of technical expert testimony — supersedes the engineer's loyalty to the retaining party in forensic engagements
The public welfare principle in the forensic engineering context encompasses the integrity of the justice system — courts and mediators rely on engineering experts to provide objective technical truth, and selective data use corrupts that reliance relationship in a manner that harms public confidence in both the engineering profession and the legal system
Public welfare obligation — including justice system integrity — superseded client loyalty; the adversarial context created no exemption
Professional engineers are frequently called upon and play a critical role as forensic engineering experts in connection with civil litigation.
What are Engineer A’s ethical obligations under the circumstances?
Does Engineer A's obligation to disclose the data inaccuracy extend beyond Attorney X to the court, the opposing party, or the public, particularly given that the erroneous report may have already influenced settlement negotiations in ways that could harm third parties?
What are Engineer A's obligations if Attorney X, upon being informed of the data inaccuracy, instructs Engineer A to suppress the corrected findings and proceed with the original report during settlement negotiations?
Does the timing of Engineer A's discovery — after submission but before settlement conclusion — create a heightened urgency that would not exist if the error were discovered after final settlement, and does that temporal distinction carry independent ethical weight?
To what extent does Engineer A bear responsibility for the initial use of inaccurate data — that is, should the Board have examined whether Engineer A's original investigative methodology was itself deficient, and whether that deficiency constitutes a separate ethical violation independent of the disclosure obligation?
Does the Faithful Agent Obligation toward Attorney X conflict with the Truthfulness Obligation and Public Welfare Paramount principle when Attorney X's litigation interests are best served by the original — now known to be inaccurate — report remaining in circulation during settlement negotiations?
Does the Adversarial Context Non-Exemption principle — which holds that the adversarial nature of litigation does not relieve Engineer A of objectivity duties — conflict with the Client Disservice Through Incomplete Reporting Prohibition when full corrective disclosure materially harms the client's negotiating position and potentially reduces the injured party's settlement recovery?
Does the Honesty in Professional Representations principle conflict with the Faithful Agent Obligation when the scope of Engineer A's engagement is defined by Attorney X's litigation strategy, raising the question of whether Engineer A's duty of honesty runs primarily to the retaining attorney, to the legal process, or to the public at large?
Does the Error Acknowledgment and Corrective Disclosure Obligation conflict with the Forensic Report Integrity in Active Litigation Context principle in cases where immediate disclosure of the inaccuracy could itself compromise the integrity of ongoing legal proceedings — for example, by triggering premature termination of negotiations before the corrected analysis can be properly prepared and reviewed?
From a deontological perspective, did Engineer A fulfill their categorical duty of truthfulness by immediately disclosing the data inaccuracy to Attorney X, regardless of whether that disclosure might harm the client's settlement position?
From a consequentialist perspective, does the potential harm to Attorney X's client from a weakened settlement position outweigh the systemic harm to legal process integrity that would result from Engineer A allowing an inaccurate forensic report to remain uncorrected during active negotiations?
From a virtue ethics perspective, did Engineer A demonstrate the professional virtues of intellectual honesty and integrity by treating the obligation to correct the erroneous report as non-negotiable, even when the adversarial settlement context created pressure to remain silent?
From a deontological perspective, does Engineer A's role as a faithful agent to Attorney X create a competing duty that could ever legitimately delay or suppress the obligation to disclose a discovered data inaccuracy, or does the duty of truthfulness categorically override the faithful agent duty in forensic expert contexts?
If Engineer A had discovered the data inaccuracy before submitting the report rather than after, would the ethical obligation to disclose have been identical in character and urgency, or does the post-submission timing create a qualitatively distinct and more demanding corrective obligation?
If Engineer A had disclosed the data inaccuracy immediately and the corrected conclusions had materially weakened Attorney X's settlement position, resulting in a less favorable outcome for the injured client, would that adverse consequence retroactively undermine the ethical correctness of Engineer A's disclosure decision?
If settlement negotiations had already concluded and a settlement agreement had been signed before Engineer A discovered the data inaccuracy, would Engineer A's ethical obligations to disclose the error extend beyond Attorney X to include the court, the opposing party, or the public, and would those obligations differ in scope from the pre-settlement disclosure duty?
If Engineer A had chosen to remain silent about the data inaccuracy on the grounds that the attorney-client relationship imposed a duty of confidentiality, would that confidentiality rationale constitute a legitimate ethical defense under the NSPE Code, or would it represent a misapplication of the faithful agent principle that the Code's truthfulness provisions categorically foreclose?
Technical Facts Non-Adversarial Character in Pile Adequacy Mediation
Pile driving records and wave equation calculations in mediation context
Municipality's adversarial litigation interests
The pile driving records, wave equation calculations, and equipment failure data did not acquire an adversarial character by virtue of being generated and evaluated within the mediation proceeding — Engineer B was required to treat these technical findings as objective data regardless of the legal context, refusing to allow the municipality's adversarial interests to transform the role of forensic expert into advocate for a preferred factual narrative
The technical facts about pile adequacy — whether piles were driven to essential refusal, whether wave equation calculations showed adequate strength, whether equipment failed — were objective engineering data that did not change character based on which party they favored in the litigation
Technical Facts Non-Adversarial Character Principle
Technical facts retained their objective character regardless of adversarial context — Engineer B's obligation was to report them accurately and completely
Truthfulness Obligation Invoked by Engineer A Upon Discovery of Data Inaccuracy
Engineer A, upon discovering that the data underlying the forensic report conclusions was inaccurate and that accurate data would yield different conclusions, faces an obligation of truthfulness that requires disclosure of this discovery to Attorney X rather than allowing the inaccurate report to stand during active settlement negotiations
In the forensic engineering context, truthfulness is not satisfied by submitting an accurate report at the time of submission — it continues as an obligation that requires correction when the engineer subsequently discovers that the factual basis of the report was inaccurate, regardless of the litigation consequences
Truthfulness obligation requires immediate disclosure to Attorney X; the attorney then controls litigation strategy, but the engineer cannot allow the inaccurate report to remain uncorrected in the engineer's own professional capacity
Wave Equation Pile Analysis — BER Case 95-5 Application
Geotechnical engineering professional consensus
Accepted Wave Equation Calculations for Pile Driving Resistance
applying accepted wave equation calculations, the piles would have indicated a strength several multiples over the calculated load requirements
Engineer A's geotechnical consultant and referenced by the NSPE Board of Ethical Review
Referenced as the accepted technical methodology that Engineer B failed to apply when evaluating the 19 piles; had Engineer B applied wave equation calculations to the pile driving records showing driving to essential refusal, the piles would have indicated strength several multiples over the calculated load requirements, materially changing the expert conclusions
dock construction before contractor's extra claim and lawsuit
dynamic test equipment failure during test pile driving supervised by Engineer B
hammer dropped several times to start before record of blow counts commenced
initial pile driving before 30-day set-up period
mediation before settlement of contractor claim for $300,000
settlement negotiations overlaps Engineer A's obligation to notify Attorney X
test pile driving before 30-day set confirmation of strength gain