In BER Case 86-4, the Board considered a case involving the modification of signed and sealed plans by other than the responsible engineer.
However, BER Case 86-4 was rendered before a significant change was made to Section III.9. of the Code.
the Board cited Section III.9. of the Code and expressed concern that the engineer in that case failed to acknowledge responsibility for the full design by notations on the drawings.
NSPE Board of Ethical Review as analogical precedent and historical baseline
Cited as prior precedent in which the Board applied Section III.9 to find an engineer unethical for failing to acknowledge full design responsibility after modifying signed and sealed plans; noted as pre-dating the subsequent revision to Section III.9 and therefore limited in its current applicability
BER Case 86-4 Post-Amendment Non-Controlling Authority — Section III.9 Indemnification
The Board cites BER Case 86-4 as background but explicitly notes it was decided before the Section III.9 amendment and therefore does not control the current analysis of Engineer A's indemnification clause.
NSPE Board of Ethical Review and engineers applying BER Case 86-4
Post-Code-Amendment BER Precedent Supersession Constraint
BER Case 86-4, decided before the material amendment to Section III.9 adding the indemnification exception, cannot be applied as controlling authority to cases arising after the amendment; the analysis of Engineer A's indemnification clause must be grounded in the amended Section III.9 rather than the pre-amendment standard applied in BER Case 86-4.
NSPE Code of Ethics Section III.9 (post-amendment); BER Case 86-4 (pre-amendment precedent); NSPE Board of Ethical Review interpretive practice
BER Case 86-4 was rendered before a significant change was made to Section III.9. of the Code.
From the date of the Section III.9 amendment onward
Soon after BER Case 86-4 was issued, the Board of Ethical Review proposed an addition to Code Section III.9. which was adopted by the NSPE Board of Directors.
BER Case 86-4 before modification to Section III.9 of the Code of Ethics
Broad Negligence Indemnification Provision - Engineer A Standard Agreement
Early 1980s through present (ongoing across all pollution-related service agreements)
All clients executing pollution-related service agreements with Engineer A
Engineer A, a civil engineer, requires a broad indemnification provision in all of his agreements where he provides pollution-related services
Broad Negligence Indemnification Provision Active State
Engineer A's standard service agreements for pollution-related services
the client is required to 'indemnify and hold harmless Engineer A for any damages or legal costs (including attorneys fees) arising from Engineer A's negligence in the performance of pollution-related services'
Engineer A's insertion of indemnification clause into standard agreements during the early 1980s liability crisis
CausalLink_Insert Broad Indemnification C
CausalLink_Maintain Indemnification Claus
CausalLink_Propose Code Section III.9. Am
CausalLink_Reinterpret Section III.9. For
Changed Circumstances - Insurance Now Available Despite Indemnification Clause Persisting
From the point of insurance market re-entry through present (ongoing)
Engineer A had inserted the indemnification provision during the early 1980's at the time of the 'liability crisis' because of the unavailability of pollution-related insurance coverage
Changed Circumstances Rendering Contractual Justification Obsolete State
Engineer A's continued use of broad indemnification provision after pollution insurance became available
In recent years, the insurance industry has re-entered the pollution insurance market and now provides limited pollution coverage for an additional premium
Insurance industry re-entry into pollution coverage market, dissolving the original necessity justification for the broad indemnification clause
Changed Circumstances Contractual Re-Evaluation Obligation Triggered by Insurance Market Re-Entry
Legacy pollution services indemnification provision adopted in early 1980s
Administrative burden of contract revision
Preference for maximum financial self-protection
The re-entry of the insurance industry into the pollution coverage market materially changes the circumstances that originally justified Engineer A's indemnification clause, triggering an obligation to reassess and revise the provision rather than perpetuating it as a standard contractual term
The original justification — unavailability of pollution insurance — was a genuine exceptional circumstance that made some form of self-protection understandable; however, once insurance became available again, the ethical basis for the indemnification clause lapsed, and Engineer A is obligated to revise his standard agreements accordingly
Changed Circumstances Contractual Re-Evaluation Obligation
Engineer A had inserted the indemnification provision during the early 1980's at the time of the 'liability crisis' because of the unavailability of pollution-related insurance coverage.
The changed market conditions remove the only plausible justification for the clause; the principle requires affirmative re-evaluation and revision, not passive continuation of a legacy arrangement that no longer reflects current professional standards or available alternatives
In recent years, the insurance industry has re-entered the pollution insurance market and now provides limited pollution coverage for an additional premium.
Changed Circumstances Contractual Re-Evaluation — Indemnification Clause Post-Liability-Crisis
NSPE Code Section III.9 indemnification exception
Pollution services indemnification agreement
Negligence Liability Non-Transfer to Client Principle
Professional Liability Insurance Procurement Obligation When Reasonably Available
Engineer A's obligation to reassess and eliminate the client indemnification clause for ordinary negligence now that professional liability insurance for pollution-related services has become reasonably available — the exceptional market condition (insurance unavailability during the 'liability crisis') that originally justified the clause no longer obtains.
The indemnification clause was ethically permissible only as a response to an exceptional circumstance; once that circumstance resolves, continued use of the clause is no longer justified and must be discontinued.
Engineer A Pollution Services Indemnification-Requiring Engineer
It has been approximately seven years since the modification was made to Section III.9. of the Code of Ethics. Since that time, it appears that the professional liability insurance market has changed significantly.
Changed circumstances eliminate the justification for the exception; the engineer must revert to the baseline obligation of personal professional accountability and obtain available insurance rather than continuing to require client indemnification.
It has been approximately seven years since the modification was made to Section III.9. of the Code of Ethics. Since that time, it appears that the professional liability insurance market has changed significantly
This language was added to the NSPE Code of Ethics in response to the needs expressed by many practitioners at the height of the 'liability crisis' during which many engineer were forced to practice with little or no professional liability insurance
consistent with the intent of Section III.9 and the intent of the changes made to Section III.9. during the height of the 'liability crisis', we believe there is a need to further amplify the extent to which engineers should appropriately avail themselves of the scope of Section III.9
Client Interest Primacy Invoked Against Engineer A Self-Protective Indemnification
All pollution-related services client agreements
Engineer's legitimate interest in financial self-protection
Engineer A's indemnification clause serves his own financial self-protection at the direct expense of client interests, requiring clients to absorb liability for the engineer's own negligence — a structural arrangement that subordinates client welfare to engineer advantage in violation of the faithful agent duty
As a faithful agent, Engineer A is required to structure his professional engagements to serve client interests; requiring clients to indemnify him for his own negligence is a paradigmatic case of personal advantage taking precedence over client protection, which is ethically impermissible regardless of the contractual form it takes
Client Interest Primacy Over Engineer Personal Advantage in Faithful Agent Role
the client is required to 'indemnify and hold harmless Engineer A for any damages or legal costs (including attorneys fees) arising from Engineer A's negligence in the performance of pollution-related services.'
The faithful agent principle does not permit engineers to use their superior bargaining position in contract formation to shift their own negligence liability to clients; client interest primacy requires that the engineer bear the consequences of his own professional failures
Client Interest Primacy — Indemnification Clause as Self-Protection at Client Expense
Client under Pollution Services Agreement
Engineer A's routine use of client indemnification clauses for ordinary negligence — when professional liability insurance is available — subordinates the client's interest in being protected from engineer negligence to the engineer's interest in self-protection, violating the faithful agent obligation to act in the manner most beneficial to the client.
Requiring a client to bear the engineer's negligence risk when market alternatives exist is an exercise of contractual leverage that prioritizes the engineer's financial self-protection over the client's legitimate interest in recourse for professional errors.
Section III.9. should be read in the context of indemnification to mean that an engineer has an obligation to accept responsibility for professional activities and, where appropriate, obtain professional liability or other protection for the benefit of the engineer's client to the extent that such professional liability or other protection are available either on the market or in other spheres.
The client's interest in protection from engineer negligence must be served either through the engineer's personal liability or through professional liability insurance; the engineer cannot use the indemnification exception as a routine self-protection device when insurance is available.
Section III.9. should be read in the context of indemnification to mean that an engineer has an obligation to accept responsibility for professional activities and, where appropriate, obtain professional liability or other protection for the benefit of the engineer's client
we are of the view that where such protection are reasonably available and affordable to the engineer to guard the interests of both the client and the engineer, barring special or additional circumstances, the engineer has an ethical obligation to obtain such protection and not seek indemnification from the client for ordinary negligence
{'contractual_obligation': 'Indemnify and hold harmless Engineer A for negligence-related damages and attorney fees', 'specificity': "Generic/unnamed — applies to all clients under Engineer A's standard agreement"}
Unnamed client(s) who retain Engineer A for pollution-related services and are contractually required to indemnify and hold harmless Engineer A for any damages or legal costs arising from Engineer A's own negligence.
{'type': 'service_recipient_from', 'target': 'Engineer A Pollution Services Indemnification-Requiring Engineer'}
It would not be ethical for Engineer A to continue to require a broad indemnification provision in all of his agreements where he provides pollution-related services.
Beyond the Board's finding that continued use of the broad indemnification clause is unethical, the temporal dimension of Engineer A's obligation deserves sharper articulation: the ethical impermissibility did not arise at the moment the insurance market fully recovered, but rather at the point when pollution liability coverage became reasonably available and affordable to Engineer A specifically. The Board's reasoning implies a sliding-scale obligation — the clause was ethically permissible when no alternative existed, became ethically questionable as the market began re-entering, and became ethically impermissible once coverage was genuinely accessible at a reasonable premium. This graduated analysis means Engineer A cannot be faulted retroactively for the entire post-recovery period without first establishing when, as a practical matter, coverage became obtainable for an engineer in Engineer A's specific practice context. The Board's ruling does not impose a retroactive ethical violation for the period of genuine unavailability, but it does impose an affirmative duty to have monitored the market and acted once the 'cannot otherwise be protected' condition of Section III.9 was no longer satisfied.
The Board's conclusion implicitly establishes an affirmative, ongoing monitoring obligation for Engineer A and similarly situated practitioners: the ethical permissibility of a self-protective contractual clause is not fixed at the moment of drafting but must be re-evaluated as material conditions change. This obligation has two components. First, Engineer A must periodically assess whether the professional liability insurance market continues to offer pollution coverage at a cost that is not prohibitive relative to the fees generated by pollution-related services. Second, Engineer A must revise or remove the indemnification clause in future agreements — and arguably must notify existing clients in ongoing relationships — once the market conditions that originally justified the clause no longer obtain. The Board's reasoning, grounded in the principle that engineers must act as faithful agents of their clients and must not transfer their own negligence liability to clients when alternatives exist, implies that passive inaction in contract management is itself an ethical failure. NSPE and state engineering societies bear a corresponding institutional responsibility to issue periodic guidance reminding practitioners that clauses justified by crisis conditions require re-examination as those conditions evolve.
The Board's conclusion leaves unresolved a genuine and practically significant exception: the subset of engineers for whom pollution liability insurance remains cost-prohibitive even after market re-entry. The Board's reasoning, read carefully, does not categorically prohibit all indemnification clauses in all circumstances; rather, it prohibits their continued use when the original justifying condition — inability to otherwise protect oneself — has lapsed. For practitioners who can demonstrate, with documented market evidence, that available pollution coverage is priced at a level that renders their pollution-related practice economically nonviable, the ethical calculus may differ. However, this exception carries a heavy procedural burden: the engineer must affirmatively verify and document the affordability constraint, must disclose the indemnification clause's purpose and basis to the client with sufficient transparency for the client to make an informed contracting decision, and must narrow the clause to the minimum scope necessary to address the specific uninsurable risk rather than adopting a blanket provision covering all negligence. The Board's ruling thus implicitly creates a two-track ethical framework — a general prohibition for engineers with access to affordable coverage, and a narrowly conditioned exception for those who can substantiate genuine market inaccessibility — while making clear that Engineer A, who has not demonstrated such inaccessibility, falls squarely within the general prohibition.
Regarding Q101, the Board's ruling does not impose a precise retroactive timestamp at which Engineer A's continued use of the broad indemnification clause became ethically impermissible. However, the ruling's logic implies that the ethical obligation to re-evaluate the clause arose as soon as the pollution insurance market materially recovered and coverage became obtainable at a commercially reasonable premium — not at the moment of perfect market equilibrium. Because the Board frames Section III.9's exception as contingent on the engineer being unable to 'otherwise protect' themselves, the exception's justification lapsed at the point when insurance procurement became a realistic alternative, even if imperfect or more expensive than pre-crisis coverage. The ruling is prospective in its formal command but carries an implicit retrospective judgment: Engineer A should have removed or narrowed the clause upon market re-entry, meaning any agreements executed after that recovery point were already ethically compromised. The Board does not, however, impose liability for agreements executed during the genuine crisis period, confirming that the ethical violation is tied to the persistence of the clause after changed circumstances, not to its original insertion.
Regarding Q102, the Board's explicit conclusion addresses future agreements but is silent on whether Engineer A bears an affirmative duty to notify existing clients that the broad indemnification clause in currently operative agreements is no longer ethically justified. Extending the Board's reasoning, the principle of Client Interest Primacy and the faithful agent obligation embedded in Section III.9 together suggest that Engineer A should proactively disclose to existing clients that the original justification for the clause — insurance unavailability — has lapsed, and should offer to renegotiate or remove the provision from ongoing agreements. Silence in the face of a known material change in circumstances that disadvantages the client is itself a form of subordinating client interests to self-protection. While the Board does not mandate a specific notification procedure, the ethical logic of the ruling implies that passively allowing an unjustified indemnification clause to remain operative in existing agreements is as ethically problematic as inserting it into new ones. Engineers in Engineer A's position should therefore treat the obligation as applying to both future and existing contractual relationships.
Regarding Q103, the Board's ruling implicitly preserves an affordability exception for the subset of practitioners for whom pollution liability insurance remains cost-prohibitive even after market re-entry, because the ethical prohibition is grounded in the lapse of the 'cannot otherwise protect' condition under Section III.9 — and that condition has not lapsed for engineers who genuinely cannot afford available coverage. However, this exception is narrow and procedurally demanding. Engineers claiming it must be able to demonstrate, with documented evidence, that they actively sought pollution liability coverage from multiple carriers, received premium quotes, and determined that the cost was objectively prohibitive relative to the revenue generated by pollution-related services — not merely inconvenient or higher than pre-crisis rates. The exception cannot be self-certified without verification effort. Engineers relying on it should document their market canvassing, retain premium quotations, and be prepared to show that the indemnification clause was the only commercially viable means of protecting themselves from catastrophic uninsured liability. Without such procedural diligence, the affordability exception collapses into a self-serving assertion indistinguishable from Engineer A's unjustified continuation of the clause.
Regarding Q104, the Board's ruling implies but does not explicitly articulate an ongoing affirmative duty for engineers to periodically reassess the professional liability insurance market and revise indemnification clauses accordingly. The ethical logic of the ruling — that changed circumstances deactivate the Section III.9 exception — necessarily entails that engineers cannot satisfy their ethical obligations through a one-time assessment at contract formation. Because professional liability insurance markets are cyclical, as the Board itself acknowledges, an engineer who evaluates market conditions only at the moment of initial contract drafting may find that conditions have materially changed by the time the agreement is renewed or extended. A reasonable interpretation of the Board's reasoning supports a duty of periodic market monitoring, perhaps aligned with contract renewal cycles or significant changes in the engineer's practice scope. Institutionally, NSPE could support this obligation by issuing periodic ethics reminders or market condition updates through its publications, reducing the information asymmetry that allows engineers to inadvertently — or conveniently — remain unaware that the justification for their indemnification clauses has lapsed.
Regarding Q201, the tension between the Learned Profession Personal Liability Acceptance principle and the Professional Liability Insurance Procurement Obligation is real but resolvable within the Board's framework. The Board does not require engineers to be financially ruined by uninsured negligence claims; rather, it requires them to use available market mechanisms — specifically insurance — to protect themselves before resorting to contractual risk transfer onto clients. The resolution hierarchy implied by Section III.9 is: (1) procure insurance where available and affordable; (2) use indemnification clauses only where insurance is genuinely unavailable or cost-prohibitive. The tension becomes irresolvable only in the narrow circumstance where neither option is viable — insurance is unavailable and indemnification clauses are prohibited — but the Board's ruling does not reach that scenario because it explicitly preserves the indemnification option for engineers who truly cannot obtain coverage. The principle of personal liability acceptance is therefore not absolute; it is mediated by the practical availability of insurance as the preferred risk management mechanism. Engineers are not ethically required to absorb catastrophic uninsured liability, but they are required to exhaust available insurance options before shifting risk to clients.
Regarding Q202, the apparent conflict between Client Interest Primacy and Contractual Risk Transfer Ethical Residual Awareness — where eliminating indemnification clauses without insurance coverage could leave clients with uncollectable judgments — is addressed by the Board's implicit sequencing: the ethical path is not simply to eliminate indemnification clauses in a vacuum, but to replace them with insurance coverage that provides clients with a solvent, collectible source of recovery. When Engineer A procures pollution liability insurance and removes the indemnification clause, clients are not left worse off; they gain a more reliable recovery mechanism through the insurer than they would have through an indemnification clause that could be rendered worthless by Engineer A's insolvency. The Board's conclusion therefore does not harm clients — it improves their position by directing risk to a capitalized insurer rather than leaving it nominally with Engineer A under an indemnification clause that may be practically uncollectable. The conflict dissolves when insurance procurement is understood as the affirmative substitute for, rather than merely the alternative to, the indemnification clause.
Regarding Q203, the tension between treating the Code as a living document and the risk of retroactive ethical liability for engineers who relied in good faith on BER Case 86-4 is genuine and represents a structural challenge in professional ethics governance. The Board's reinterpretation of Section III.9 in light of changed market conditions is methodologically sound — ethics codes must adapt to the circumstances they govern — but it creates a fairness concern for engineers who continued using indemnification clauses in reasonable reliance on the prior ruling. The appropriate resolution is to treat the Board's current ruling as prospective: engineers who relied on BER Case 86-4 during the period when insurance was genuinely unavailable acted ethically, and the new ruling's ethical obligation attaches from the point of market recovery, not from the date of BER Case 86-4's issuance. This approach preserves the Code's adaptability without punishing good-faith reliance on prior authoritative interpretations. However, it also underscores the need for NSPE to communicate reinterpretations promptly and clearly, so that engineers are not left in a state of unknowing non-compliance between the moment market conditions change and the moment a new Board ruling is issued.
Regarding Q301 and Q302 from a deontological perspective, Engineer A failed on both counts. Under the duty-based framework, members of a learned profession accept, as a condition of their exclusive practice authority, personal responsibility for the consequences of their negligence. This duty is not contingent on the availability of insurance; it is intrinsic to the professional relationship. Engineer A's use of a broad indemnification clause contractually transferred the financial consequences of Engineer A's own negligence to the client, which is categorically incompatible with the faithful agent duty that defines the engineer-client relationship. From a Kantian standpoint, the maxim 'I will shift the financial consequences of my negligence onto my clients whenever it is contractually possible to do so' cannot be universalized without destroying the trust that makes professional relationships possible. Engineer A therefore violated a categorical duty to the client, independent of whether insurance was available. The insurance availability question is relevant only to the practical severity of the violation — it explains why the Board tolerated the clause during the crisis — but it does not alter the underlying deontological judgment that the clause was always in tension with the faithful agent duty.
Regarding Q303 from a consequentialist perspective, the continued use of the broad indemnification provision after insurance market recovery produced a net harm distribution that is ethically unjustifiable. Clients entering pollution services agreements with Engineer A after market recovery were exposed to financial risks — bearing the cost of Engineer A's negligence — that they could not reasonably anticipate or price into the contract, because the indemnification clause's original justification was no longer operative and was not disclosed as having lapsed. Meanwhile, Engineer A received windfall protection: the clause shielded Engineer A from liability that could now be covered by insurance at a defined premium cost, meaning Engineer A externalized a risk that had a known, purchasable market price. The net consequence was a systematic wealth transfer from clients to Engineer A, mediated by a contractual provision whose justifying conditions had expired. A consequentialist analysis therefore strongly supports the Board's conclusion, because the harm to clients — unpredictable, unpriced financial exposure — clearly outweighs any benefit to Engineer A beyond what insurance procurement would have provided.
Regarding Q304 from a virtue ethics perspective, Engineer A's failure to re-evaluate the indemnification clause after market recovery reflects a deficit in both professional integrity and practical wisdom — the two virtues most central to the ethical practice of engineering. Practical wisdom, or phronesis, requires the engineer to perceive morally relevant changes in circumstances and adjust conduct accordingly. The re-entry of the pollution insurance market was precisely such a change: it materially altered the ethical landscape governing the indemnification clause, and a practically wise engineer would have recognized this and acted. Engineer A's inaction suggests either a failure of perception — not noticing the changed conditions — or a failure of will — noticing but choosing not to act because the clause remained advantageous. Neither failure is consistent with the character of a virtuous professional. Professional integrity further requires that self-protective contractual arrangements be no broader than the circumstances genuinely demand. By maintaining a clause whose justification had lapsed, Engineer A prioritized self-interest over the character-based obligation to deal honestly and fairly with clients, which is the hallmark of professional virtue.
Regarding Q401, if Engineer A had proactively monitored the insurance market and removed the indemnification clause upon market recovery, the Board would almost certainly have found Engineer A's prior use of the clause during the genuine liability crisis to be fully ethical under Section III.9. BER Case 86-4 established that the clause was permissible when insurance was unavailable, and the Board's current ruling does not disturb that conclusion for the crisis period. This counterfactual reveals a critical ethical insight about inaction in contract management: the ethical violation in this case is not the original insertion of the clause but the failure to remove it when the justifying conditions lapsed. Contract management is not a passive activity; engineers bear an ongoing duty to ensure that the terms of their agreements remain ethically justified as circumstances evolve. Inaction — allowing a clause to persist by default — is itself an ethically significant choice, not a neutral state. Engineer A's failure to act upon market recovery is therefore the locus of the ethical violation, and proactive monitoring would have fully preserved the ethical permissibility of the clause's prior use.
Regarding Q402, if Engineer A had purchased available pollution liability insurance at the additional premium cost and eliminated the indemnification clause entirely, clients would have been better served in two distinct ways: first, they would have been relieved of the contingent financial obligation to indemnify Engineer A for Engineer A's own negligence; and second, they would have gained access to a capitalized insurer as the ultimate source of recovery for pollution-related damages caused by Engineer A's negligence, which is more reliable than an indemnification clause backed only by Engineer A's personal solvency. This course of action would have resolved all ethical concerns raised by the Board, because it would have satisfied the insurance procurement obligation, eliminated the negligence liability transfer to the client, and fulfilled the faithful agent duty. The additional premium cost is the price of ethical compliance — it is the mechanism by which Engineer A internalizes the cost of professional risk rather than externalizing it to clients. The Board's ruling implicitly endorses this as the preferred outcome, and engineers in similar positions should treat insurance procurement plus clause elimination as the ethical default, with indemnification clauses reserved only for the narrow circumstances where insurance is genuinely unavailable or cost-prohibitive.
Regarding Q404, if the NSPE Code had been amended after BER Case 86-4 to explicitly prohibit all indemnification clauses covering ordinary negligence — rather than relying on reinterpretation of Section III.9 — the clarity of the prohibition would likely have prevented Engineer A's continued use of the clause, because the ethical obligation would have been unambiguous and not dependent on engineers independently tracking market conditions. The Board's reliance on reinterpretation rather than formal amendment does expose a structural weakness in professional ethics governance: it places the burden of monitoring both market conditions and evolving ethical interpretations on individual practitioners, without providing a clear, codified signal that prior permissible conduct has become impermissible. Engineers who rely on published Board rulings as authoritative guidance are poorly served by a system where those rulings can be superseded by reinterpretation without formal amendment or prominent notice. This case therefore supports the argument for more frequent formal Code amendments or annotated updates to existing rulings when market conditions materially change the ethical analysis, so that engineers receive clear, codified guidance rather than being expected to derive changed obligations from the logic of new Board decisions.
The tension between the Learned Profession Personal Liability Acceptance principle and the Professional Liability Insurance Procurement Obligation was resolved not by declaring one superior to the other in the abstract, but by treating them as sequentially ordered obligations that respond to market conditions. When pollution insurance was unavailable during the early 1980s liability crisis, personal liability acceptance remained the ideal but was temporarily unenforceable as a practical matter, making the indemnification clause a permissible surrogate under BER Case 86-4. Once the insurance market recovered, the two principles converged on the same outcome: Engineer A was obligated to procure available insurance and simultaneously abandon the indemnification clause, because the clause's only ethical justification — the inability to otherwise protect against catastrophic uninsured loss — had lapsed. The case teaches that these two principles are not permanently in tension; rather, they form a complementary framework in which insurance procurement is the preferred mechanism for honoring personal liability acceptance, and indemnification clauses are a narrow, time-limited exception that dissolves when the preferred mechanism becomes accessible again.
The principle of Client Interest Primacy and the principle of Negligence Liability Non-Transfer to Client were not in tension in this case — they were mutually reinforcing, and together they overwhelmed the residual force of the Contractual Risk Transfer Ethical Residual Awareness principle once the insurance market recovered. A broad indemnification clause that shifts the financial consequences of Engineer A's own negligence onto the client is, by definition, a subordination of client financial interests to Engineer A's self-protection. When that clause was the only available shield against catastrophic uninsured loss, the Board implicitly accepted that the client interest primacy principle could be temporarily overridden by necessity. But once pollution liability insurance became available at an additional premium, the necessity justification evaporated, and the two client-protective principles reasserted their combined force without any countervailing principle capable of displacing them. The case teaches that contractual risk transfer provisions survive ethical scrutiny only as long as the necessity condition that originally justified them remains operative; once that condition lapses, the client-protective principles do not merely outweigh the self-protective rationale — they eliminate it entirely.
The tension between the Ethics Code Living Document Adaptation principle and the Changed Circumstances Contractual Re-Evaluation Obligation principle reveals a structural asymmetry in how ethical obligations are distributed across time. The living document principle operates at the institutional level — it permits the Board to reinterpret Section III.9 in light of changed market conditions without formal code amendment, as it did here by effectively superseding BER Case 86-4's permissive stance. The changed circumstances re-evaluation obligation, by contrast, operates at the individual practitioner level — it requires Engineer A to monitor market conditions and revise contractual terms accordingly, without waiting for a new Board ruling to prompt action. This asymmetry means that Engineer A bore an affirmative, ongoing duty to reassess the indemnification clause independently of whether the Board had yet issued updated guidance. The case therefore teaches that the living document principle does not merely authorize the Board to update its interpretations; it simultaneously imposes on individual engineers a correlative duty of proactive ethical self-monitoring, such that reliance on a prior permissive ruling cannot indefinitely excuse failure to recognize that the factual predicate for that ruling has changed. Engineers who treat prior Board opinions as permanent safe harbors rather than condition-dependent guidance misunderstand the dynamic character of the Code.
Contractual Risk Transfer Ethical Residual Awareness in Pollution Services Context
Pollution-related services indemnification agreement
Contractual allocation of legal liability
Even where contractual risk transfer provisions exist in pollution-related engineering services, Engineer A retains an ethical awareness that the transfer of negligence liability to clients does not extinguish his professional responsibility for the quality of his work — the contractual arrangement does not alter the ethical obligation to perform competently
The principle that contractual risk transfer does not eliminate ethical residual awareness applies here: Engineer A's indemnification clause may shift legal financial exposure, but it cannot and does not shift the ethical obligation to perform pollution-related services without negligence; the ethical residual remains fully with the engineer
Contractual Risk Transfer and Ethical Residual Awareness
Engineer A, a civil engineer, requires a broad indemnification provision in all of his agreements where he provides pollution-related services.
The ethical residual awareness principle confirms that Engineer A cannot treat the indemnification clause as a substitute for competent, non-negligent professional performance; the clause addresses legal consequences, not ethical obligations
Cost-Prohibitive Insurance Affordability Constraint for Some Practitioners
Ongoing, concurrent with general market recovery — affects practitioners with insufficient revenue or operating in high-risk service niches
Clients of cost-constrained practitioners
Practitioners in high-risk service niches
We are mindful that the cost and scope of professional liability insurance continue to be prohibitive for some practitioners
Professional Liability Insurance Affordability Constraint State
Subset of engineering practitioners for whom professional liability insurance remains cost-prohibitive despite market re-entry
Insurance becomes affordable to the specific practitioner, or practitioner exits the relevant service domain
we are in no way suggesting that the failure to obtain professional liability insurance is in any sense a breach of ethics
Insurance market re-entry at premium levels or scope limitations that remain prohibitive for some practitioners
Cyclical Professional Liability Market Ongoing Monitoring — Engineer A Post-Crisis Indemnification Review
The Board explicitly acknowledges the cyclical nature of the professional liability environment and reserves authority to modify its interpretive position, establishing that Engineer A's monitoring obligation is ongoing rather than a one-time assessment.
Necessity-Lapsed Risk Transfer Mechanism Continuation Prohibition Constraint
Because the professional liability insurance market is recognized as cyclical and fluid, Engineer A's obligation to monitor market conditions and re-evaluate the indemnification clause is ongoing; the current finding that the clause is impermissible does not foreclose future re-evaluation if market conditions deteriorate again, but Engineer A cannot rely on historical crisis conditions as a static justification for the current clause.
NSPE Code of Ethics Section III.9; NSPE Board of Ethical Review cyclical-market interpretive framework
We recognize that the professional liability environment is cyclical, fluid and subject to change.
Ongoing throughout Engineer A's professional practice; subject to periodic re-assessment
we feel it is the role of this Board to interpret the Code provisions consistent with current conditions within professional practice and we reserve the right to modify our view as circumstances within professional practice warrant.
Cyclical Professional Liability Market Recognition by Ethics Board
Ongoing — recognized as a permanent feature of the professional liability environment requiring dynamic code interpretation
We recognize that the professional liability environment is cyclical, fluid and subject to change
Cyclical Professional Liability Environment State
NSPE Board of Ethical Review's interpretive framework for Code Section III.9
Theoretical only — would require permanent market stabilization
it is the role of this Board to interpret the Code provisions consistent with current conditions within professional practice
we reserve the right to modify our view as circumstances within professional practice warrant
Board's recognition that the liability crisis was a cyclical phenomenon and that current market conditions differ from crisis-era conditions
Should Engineer A continue inserting the broad self-negligence indemnification clause into future pollution-related service agreements now that professional liability insurance covering pollution services has become commercially available?
Following the re-entry of insurers into the pollution liability coverage market, Engineer A must decide whether to retain the broad indemnification clause — originally inserted when pollution insurance was unavailable — in future pollution-related service agreements, or to remove it and instead procure available insurance coverage. The clause requires clients to indemnify and hold harmless Engineer A for damages and legal costs arising from Engineer A's own negligence, a transfer of liability that was conditionally tolerated under Section III.9 only while insurance was genuinely unavailable.
Discontinue use of the broad self-negligence indemnification clause in all future pollution-related service agreements and instead obtain commercially available professional liability insurance — including pollution-specific coverage — as the ethically preferred risk-management mechanism, thereby restoring personal liability acceptance consistent with the learned profession compact.
Continue requiring clients to indemnify and hold harmless Engineer A for negligence-related damages and legal costs in future agreements, treating the clause as a standard contractual term regardless of current insurance market conditions, effectively transferring professional liability to clients after the justifying condition of insurance unavailability has lapsed.
Retain a modified, narrowly scoped indemnification clause only after conducting and documenting a good-faith assessment confirming that available pollution liability insurance remains cost-prohibitive for Engineer A's practice, limiting the clause to gross negligence exclusions and disclosing the affordability basis to clients, in conformity with the residual Section III.9 affordability exception.
Licensed Professional Engineer Providing Pollution-Related Consulting Services
At what point was Engineer A obligated to recognize that the insurance market recovery had deactivated the Section III.9 exception, and what affirmative steps — including market monitoring and clause revision — were required within what timeframe?
Engineer A must determine at what point after the pollution insurance market recovered the continued use of the broad indemnification clause crossed from ethically permissible to ethically impermissible, and whether Engineer A had an obligation to proactively monitor market conditions and act upon that knowledge within a defined timeframe. This decision point concerns the temporal dimension of the changed-circumstances removal obligation and the cyclical market re-assessment duty.
Treat the re-entry of insurers into the pollution coverage market as a triggering event requiring prompt re-assessment of insurance availability and affordability, and revise or remove the indemnification clause from all new agreements within a reasonable period — without waiting for explicit regulatory guidance — recognizing that the ethical permissibility of the clause is contingent on current market conditions.
Continue using the existing indemnification clause in new agreements until a professional society, licensing board, or ethics panel formally instructs Engineer A to revise it, treating the absence of explicit guidance as implicit permission to maintain the status quo despite changed market conditions.
Implement a structured, recurring review — such as annual assessment of professional liability insurance market conditions — that triggers mandatory clause re-evaluation whenever coverage availability or affordability materially changes, institutionalizing the cyclical re-assessment obligation as an ongoing practice management duty rather than a one-time response to a known crisis.
Licensed Professional Engineer with Existing Pollution-Services Contracts Containing Indemnification Clauses
Is Engineer A obligated to proactively notify existing clients that the broad indemnification clause in their current agreements is no longer ethically justified, and to offer amendment or removal of the clause, or does the obligation apply only prospectively to new agreements?
Engineer A has existing, ongoing contracts with clients that contain the broad indemnification clause. Following the insurance market recovery, Engineer A must decide whether the ethical obligation to remove or modify the clause applies only to future agreements or also requires proactive notification to existing clients that the clause in their current contracts is no longer ethically justified — and potentially renegotiation or amendment of those agreements.
Affirmatively contact all existing clients whose current agreements contain the broad indemnification clause, disclose that the original justification for the clause — insurance unavailability — no longer applies, and offer to amend or remove the clause from ongoing agreements, treating the faithful agent duty as extending to transparency about contractual terms that no longer serve client interests.
Remove or modify the indemnification clause from all future pollution-related service agreements while allowing existing contracts to run to their natural conclusion without amendment or client notification, treating the changed-circumstances obligation as forward-looking only and relying on the binding nature of existing contractual terms as justification for non-disclosure.
Refrain from mid-contract unilateral notification but ensure that at the next renewal, extension, or new engagement with each existing client, the changed market conditions are disclosed, the indemnification clause is removed or substantially modified, and the client is informed of the basis for the revision — balancing the faithful agent duty with practical constraints on mid-contract renegotiation.
Licensed Professional Engineer with Active Client Relationships Governed by Existing Indemnification Agreements
Should Engineer A advocate for a formal amendment to Section III.9 that explicitly bounds the indemnification exception to conditions of genuine insurance unavailability, or is reinterpretation of the existing code language for current conditions sufficient to fulfill the cyclical re-assessment and condition-verification obligations?
Engineer A must decide how to engage with the professional ethics code itself — specifically, whether Section III.9's indemnification exception should be formally amended to reflect temporal and market-condition constraints, or whether the existing code language is sufficient when interpreted through a living-document lens that ties the exception to current conditions. This decision point concerns Engineer A's role as a practitioner who can influence code development and institutional norms.
Actively propose a formal amendment to Section III.9 that explicitly limits the indemnification exception to periods of genuine, documented insurance unavailability or cost-prohibitiveness, requires periodic market re-assessment as a condition of continued clause use, and establishes procedural verification requirements — institutionalizing the living-document principle in the code's text rather than relying on interpretive practice.
Treat the existing Section III.9 language as implicitly bounded by the conditions that gave rise to it, applying a living-document interpretive approach that recognizes post-crisis insurance availability as deactivating the exception — without seeking formal code revision — and adjust personal practice accordingly while relying on ethics board guidance to communicate this interpretation to the profession.
Submit a formal request for an advisory opinion from the professional society's ethics board clarifying whether Section III.9's exception remains operative under current market conditions, using the resulting guidance as the authoritative basis for both personal practice adjustment and any subsequent code amendment proposal — prioritizing institutional clarity over unilateral interpretive action.
Licensed Professional Engineer with Standing to Participate in Professional Society Ethics Code Development
For engineers for whom pollution liability insurance remains genuinely cost-prohibitive even after market re-entry, what conditions must be satisfied to ethically retain a modified indemnification clause, and what disclosure and verification obligations apply?
A subset of engineers — including potentially Engineer A — may face a situation where pollution liability insurance has re-entered the market generally but remains cost-prohibitive for their specific practice size, specialization, or risk profile. These engineers must decide whether they retain an ethical right to use broad indemnification clauses under a residual affordability exception, and if so, what procedural and disclosure obligations attach to that exception.
Conduct and document a good-faith, current-market assessment demonstrating that available pollution liability insurance is genuinely cost-prohibitive for the engineer's practice, limit any retained indemnification clause to the narrowest scope necessary (excluding gross negligence), and affirmatively disclose to clients both the existence of the clause and the affordability basis for its retention — satisfying the residual Section III.9 exception through procedural rigor and transparency.
If pollution liability insurance is unavailable or cost-prohibitive and the engineer is unwilling to accept uninsured personal liability, decline to offer pollution-related consulting services rather than contractually transferring the risk of the engineer's own negligence to clients — treating the learned profession personal liability acceptance obligation as a threshold condition for practice rather than a transferable burden.
Continue using the broad indemnification clause on the basis that insurance was unavailable during the liability crisis, without conducting a current-market affordability assessment, treating the historical justification as sufficient ongoing authorization — effectively maintaining the clause without verifying whether the Section III.9 exception conditions remain satisfied under current market conditions.
Licensed Professional Engineer for Whom Pollution Liability Insurance Remains Cost-Prohibitive After Market Normalization
Indemnification and Hold Harmless Provision for Pollution-Related Engineering Services
Engineer Liability Indemnification Contract Standard
Engineer A in all pollution-related service agreements
Contractual mechanism by which Engineer A shifts liability for his own negligence to clients in pollution-related service agreements; the ethical permissibility of this provision is the central subject of the case analysis
Inserted in early 1980s; maintained through recent years
Engineer A Changed Circumstances Contract Clause Re-Evaluation
Changed Circumstances Contract Clause Re-Evaluation and Removal Capability
Engineer A requires the capability to recognize that the re-entry of the insurance industry into the pollution coverage market constitutes a material change in circumstances that eliminates the original justification for his indemnification clause and obligates its removal
Engineer A inserted the indemnification clause in the early 1980s due to unavailability of pollution insurance; the insurance industry has since re-entered the market, materially changing the circumstances that justified the clause
The case reveals Engineer A has not yet exercised this capability — he continues to maintain the clause despite the changed insurance market conditions that originally justified it
Engineer A Changed Circumstances Indemnification Clause Re-Evaluation
Engineer A inserted the indemnification provision in the early 1980s due to unavailability of pollution insurance; in recent years the insurance industry has re-entered the market; Engineer A has not revised the clause despite the changed circumstances.
Changed Circumstances Contractual Provision Re-Evaluation Constraint
Engineer A is ethically required to re-evaluate and remove or substantially modify the broad indemnification clause in his pollution-related service agreements now that the original necessity-based justification — unavailability of pollution-related professional liability insurance — has been eliminated by the re-entry of the insurance industry into the pollution insurance market.
NSPE Code of Ethics Section III.9; cyclical professional liability market recognition by NSPE Board of Ethical Review
Immediate — triggered by the re-entry of the insurance industry into the pollution insurance market
Engineer A Changed Circumstances Indemnification Clause Re-Evaluation — Post-Market-Normalization
Engineer A was required to recognize that the indemnification clause originally inserted in response to the 1980s professional liability insurance crisis had become ethically unjustifiable because the insurance market had materially changed, and to proactively re-evaluate, modify, or remove that clause from his pollution-related service agreements.
Engineer A's indemnification clause was adopted during the liability crisis when pollution-related insurance was unavailable; the BER found that changed market conditions required re-evaluation and removal of the clause.
Failure to re-evaluate the indemnification clause as market conditions changed over the seven years following the Section III.9 modification, resulting in continued use of a clause whose original justification had expired.
Engineer A Changed Circumstances Indemnification Clause Removal
Engineer A inserted the indemnification clause in the early 1980s during the liability crisis when pollution insurance was unavailable. The insurance industry has since re-entered the market, materially changing the circumstances that originally justified the clause and triggering an obligation to revise contractual terms accordingly.
Changed Circumstances Contract Indemnification Clause Removal Obligation
Engineer A is obligated to re-evaluate and remove or substantially modify the self-negligence indemnification clause from his pollution-related service agreements, given that the original justification for the clause — unavailability of pollution insurance coverage — no longer applies following the re-entry of the insurance industry into the pollution coverage market.
Upon discovery that pollution insurance coverage has become commercially available; applies retroactively to all existing agreements and prospectively to new ones
Engineer A Client Financial Interest Protection in Contract Drafting
Client Financial Interest Protection in Contract Drafting Capability
Engineer A requires the capability to recognize that his broad indemnification clause subordinates client financial interests to his own risk-avoidance interests, in violation of his faithful agent and trustee obligations, and to refrain from maintaining such provisions
As a faithful agent and trustee for his clients, Engineer A is obligated to refrain from contractual arrangements that shift his own negligence costs onto clients, particularly when insurance alternatives are now available
Engineer A's continued use of the broad indemnification clause demonstrates a gap in this capability — he has not recognized or acted upon the faithful agent obligation to protect client financial interests in contract drafting
Engineer A Client Financial Interest Protection — Pollution Services Indemnification Clause
Engineer A was required, as a faithful agent and trustee for his clients, to recognize that the client indemnification clause subordinated client financial interests to his own risk-avoidance interests, and to refrain from maintaining such provisions once professional liability insurance became available as an alternative means of protecting both parties' interests.
Engineer A's clients were contractually required to indemnify and hold him harmless for his own negligence in pollution-related services, a provision that the BER found subordinated client financial interests to Engineer A's self-protective interests.
Continued use of indemnification clause that exposed clients to financial liability for Engineer A's ordinary negligence, prioritizing Engineer A's risk-avoidance over client financial protection.
the engineer has an ethical obligation to obtain such protection and not seek indemnification from the client for ordinary negligence
Engineer A Client Interest Non-Subordination Faithful Agent Indemnification
Engineer A's indemnification clause inverts the faithful agent relationship by requiring clients — the parties Engineer A is obligated to serve — to bear the financial consequences of Engineer A's own professional negligence, directly serving Engineer A's financial self-interest at client expense.
Client Interest Non-Subordination to Engineer Self-Protective Indemnification Obligation
Engineer A is obligated, as a faithful agent and trustee for his clients, to refrain from contractual arrangements that subordinate client financial interests to his own self-protective financial interests, including the broad indemnification clause that requires clients to absorb liability for Engineer A's own negligence.
Under the agreement, the client is required to 'indemnify and hold harmless Engineer A for any damages or legal costs (including attorneys fees) arising from Engineer A's negligence in the performance of pollution-related services.'
Ongoing; applies to all existing and future professional service agreements
Engineer A Cyclical Market Monitoring Procedural Constraint
The NSPE Board of Ethical Review recognizes the cyclical nature of the professional liability insurance market; Engineer A adopted the indemnification clause during a market downturn and failed to re-evaluate it upon market recovery.
Engineer A is procedurally constrained to monitor professional liability insurance market conditions on an ongoing basis and to re-evaluate necessity-based contractual provisions when market conditions change materially, given the recognized cyclical nature of the professional liability insurance market; failure to maintain this monitoring obligation constitutes a procedural predicate for the ethical violation of continuing a necessity-lapsed indemnification clause.
NSPE Board of Ethical Review recognition of cyclical professional liability market conditions; NSPE Code Section III.9
Ongoing — applies throughout the duration of Engineer A's professional practice
Engineer A Cyclical Market Re-Assessment — Post-Liability-Crisis Indemnification Clause Review
Engineer A adopted the indemnification clause during the liability crisis when pollution coverage was unavailable; approximately seven years later, the market had normalized with major insurers offering limited pollution and asbestos coverage, creating an obligation to reassess and update contractual arrangements to reflect changed conditions.
Cyclical Professional Liability Market Re-Assessment Obligation
Engineer A was obligated to periodically re-assess the professional liability insurance market — particularly for pollution-related services — and, upon finding that coverage had become reasonably available and affordable, to remove or substantially modify the client indemnification clause that had been justified only by the prior unavailability of such coverage.
Periodically, and specifically upon becoming aware of material changes in the professional liability insurance market for pollution-related services
Most major professional liability insurers in the US today have reentered the A/E professional liability insurance market and many now offer some type of limited coverage for both pollution and asbestos-related services.
Engineer A Ethics Code Living Document Temporal Adaptation — Section III.9 Indemnification
Ethics Code Living Document Temporal Adaptation Capability
Engineer A was required to recognize that Section III.9's indemnification exception was adopted in response to specific historical conditions (the 1980s liability crisis) and that its scope must be interpreted in light of current practice conditions rather than those historical circumstances, including recognizing when changed market conditions require modification of professional practices originally justified by the crisis.
Engineer A continued applying the indemnification clause as if the liability crisis conditions still prevailed, without recognizing that the NSPE Code's living-document character required re-interpretation of Section III.9 in light of the normalized insurance market.
Failure to adapt professional practice to changed code interpretation as market conditions normalized, indicating a gap in the living-document temporal adaptation capability.
This change reflects the view stated by the Board on numerous occasions that the Code of Ethics is a living document that must be realistic and from time to time reflect changes that occur in the practice environment in order to maintain credibility and currency.
we feel it is the role of this Board to interpret the Code provisions consistent with current conditions within professional practice and we reserve the right to modify our view as circumstances within professional practice warrant
Engineer A Exclusive Practice Authority Personal Liability Acceptance — Pollution Services
The Board grounds its analysis in the foundational principle that the exclusive grant of engineering practice authority carries a reciprocal obligation of personal liability acceptance, which Engineer A's broad indemnification clause impermissibly circumvents.
Learned Profession Exclusive Authority Personal Liability Acceptance Constraint
Engineer A, as a licensed professional engineer granted exclusive authority to practice engineering by state licensing laws, is constrained to accept personal liability for acts, errors, and omissions in the performance of pollution-related professional services, and cannot wholesale transfer this liability to clients through indemnification clauses as inconsistent with the foundational compact of professional licensure.
Engineering licensing laws; NSPE Code of Ethics Section III.9; learned profession personal liability doctrine
A basic tenet of ethical conduct relates to the obligation of the engineer to accept responsibility for professional services that the engineer renders.
Throughout Engineer A's professional practice
As a result of this grant of authority, the law expects licensed engineers as they do other professions to perform professional services in a non-negligent manner.
Engineers, through the enactment of engineering licensing laws and other legal restrictions, are granted the authority to practice their profession to the exclusion of others.
engineers are also expected to be personally liable for their acts, errors or omissions in the performance of their professional services.
Engineer A Faithful Agent Client Interest Non-Subordination Indemnification
Engineer A's broad indemnification clause requires clients to bear financial risk for Engineer A's own negligence, directly subordinating client financial interests to Engineer A's self-protective interests in violation of the faithful agent duty.
Engineer A's faithful agent and trustee duty to clients constitutes an ethical constraint prohibiting contractual arrangements that subordinate client financial interests to Engineer A's self-protective indemnification interests, establishing that the faithful agent duty operates as a hard ethical boundary on the permissible scope of risk-transfer provisions in professional service agreements.
NSPE Code of Ethics Section III.9; NSPE Code of Ethics Section II.4 (faithful agent and trustee duty)
Ongoing — applies to all professional service agreements
requires a broad indemnification provision in all of his agreements where he provides pollution-related services
Engineer A Gross Negligence Indemnification Scope Boundary — Pollution Services Clause
Engineer A's standard agreement requires clients to indemnify and hold him harmless for damages or legal costs arising from his own negligence — a scope that exceeds both the gross negligence boundary and, given insurance availability, the ordinary negligence boundary of Section III.9.
Gross Negligence Indemnification Permissibility Boundary Constraint
Even if Engineer A's indemnification clause were otherwise permissible under Section III.9, it cannot extend to gross negligence; and given the recovery of the pollution insurance market, the clause also cannot extend to ordinary negligence, leaving Engineer A with no ethically permissible basis for the broad indemnification clause currently in use.
NSPE Code of Ethics Section III.9; NSPE Board of Ethical Review interpretive ruling
Engineers may seek indemnification for professional services arising out of their practice for other than gross negligence, where the Engineer's interests cannot otherwise be protected.
Throughout Engineer A's professional practice; scope narrows further upon insurance market recovery
the engineer has an ethical obligation to obtain such protection and not seek indemnification from the client for ordinary negligence.
Engineer A Historical Liability Crisis Justification Temporal Boundary Recognition
Historical Liability Crisis Justification Temporal Boundary Recognition Capability
Engineer A requires the capability to recognize that the 1980s liability crisis justification for his indemnification clause has a temporal boundary that expired when the insurance industry re-entered the pollution coverage market, making continued reliance on that historical justification ethically impermissible
The indemnification clause was originally justified by the unavailability of pollution insurance in the early 1980s; that justification no longer applies given the insurance industry's re-entry into the market
Engineer A continues to rely on the historical crisis justification for his indemnification clause despite the material change in insurance market conditions, indicating a gap in this temporal boundary recognition capability
Engineer A Historical Liability Crisis Justification Temporal Boundary Recognition — Section III.9
Engineer A was required to recognize that the professional practice of requiring client indemnification for ordinary negligence, originally adopted in response to the documented 1980s professional liability insurance crisis, carried a temporal justification boundary — remaining ethically defensible only while crisis conditions persisted — and became ethically impermissible once the insurance market had materially normalized.
Engineer A adopted the indemnification clause during the 1980s liability crisis when it was ethically defensible under Section III.9; the BER found that the temporal justification for the clause had expired as market conditions changed.
Failure to recognize the temporal boundary of the crisis-era justification for the indemnification clause, resulting in continued use of the clause approximately seven years after the Section III.9 modification and after the insurance market had normalized.
Engineer A Insurance Affordability Exception Scope Calibration — Pollution Services Post-Market-Normalization
Insurance Affordability Exception Scope Calibration Capability
Engineer A was required to calibrate the scope of the insurance affordability exception — recognizing that once pollution-related professional liability insurance became reasonably available and affordable, the exception no longer applied to justify client indemnification for ordinary negligence, and that the obligation to procure available insurance rather than seek indemnification was now operative.
Engineer A's continued use of the client indemnification clause after the professional liability insurance market normalized required calibration of whether the affordability exception genuinely applied or whether insurance procurement had become the ethically required alternative.
Failure to assess whether pollution-specific professional liability insurance had become reasonably available and affordable, and to adjust contractual practice accordingly.
We are mindful that the cost and scope of professional liability insurance continue to be prohibitive for some practitioners and we are in no way suggesting that the failure to obtain professional liability insurance is in any sense a breach of ethics.
However, we are of the view that where such protection are reasonably available and affordable to the engineer to guard the interests of both the client and the engineer, barring special or additional circumstances, the engineer has an ethical obligation to obtain such protection and not seek indemnification from the client for ordinary negligence.
Engineer A Insurance Affordability Exception Scope Limitation
The insurance industry has re-entered the market but provides only limited coverage for an additional premium; some practitioners may face genuine affordability constraints; the Board recognizes the cyclical nature of the market but does not authorize continued broad indemnification on affordability grounds alone.
Insurance Affordability Exception Scope Limitation Constraint
Even if Engineer A were to demonstrate that the available pollution-related professional liability insurance remains genuinely cost-prohibitive, that affordability constraint does not authorize the continued use of a broad client indemnification clause covering Engineer A's own negligence; the affordability exception is narrowly scoped and does not restore the ethical permissibility of provisions that shift the full liability burden for engineer negligence to clients.
the insurance industry has re-entered the pollution insurance market and now provides limited pollution coverage for an additional premium
Conditional — applies if and when Engineer A invokes affordability as a justification for maintaining the indemnification clause
the client is required to 'indemnify and hold harmless Engineer A for any damages or legal costs (including attorneys fees) arising from Engineer A's negligence'
Engineer A Insurance Procurement Obligation — Pollution Services Post-Market-Normalization
The Discussion confirms that the re-entry of major professional liability insurers into the A/E market, including limited pollution and asbestos coverage, created an affirmative obligation for Engineer A to obtain such coverage rather than continuing to require client indemnification for ordinary negligence.
Pollution Services Professional Liability Insurance Procurement Obligation
Engineer A was obligated to procure available professional liability insurance — including pollution-specific coverage — once such coverage became reasonably available and affordable in the market, as the preferred ethical mechanism for protecting both his own interests and his clients' interests, rather than continuing to rely on client indemnification clauses.
Upon the re-entry of professional liability insurers into the pollution coverage market, making such coverage reasonably available and affordable
we are of the view that where such protection are reasonably available and affordable to the engineer to guard the interests of both the client and the engineer, barring special or additional circumstances, the engineer has an ethical obligation to obtain such protection and not seek indemnification from the client for ordinary negligence.
Engineer A Learned Profession Personal Liability Acceptance Grounding — Pollution Services
Learned Profession Personal Liability Acceptance Grounding Capability
Engineer A was required to understand and apply the foundational learned-profession rationale for personal professional liability — that his exclusive authority to practice engineering, granted by state licensing law, carried a corresponding obligation to accept personal liability for his acts, errors, and omissions — and to recognize that this grounding made client indemnification for ordinary negligence ethically impermissible except in narrow circumstances.
Engineer A's practice of requiring clients to indemnify him for ordinary negligence in pollution-related services was evaluated against the foundational principle that licensed engineers, as members of a learned profession, are expected to accept personal liability for their professional acts, errors, and omissions.
The BER's analysis grounding the indemnification prohibition in the learned profession concept and the legal expectation of personal liability for licensed professionals.
This tenet is based upon the view that as a member of a learned profession, an engineer possesses skill, knowledge and expertise and is expected to use those attributes for the betterment of mankind.
engineers are also expected to be personally liable for their acts, errors or omissions in the performance of their professional services
Engineer A Learned Profession Personal Liability Acceptance — Pollution Services
Engineer A is a civil engineer providing pollution-related consulting services who requires clients to indemnify and hold him harmless for his own negligence — a practice that conflicts with the foundational tenet that engineers, as members of a learned profession granted exclusive practice authority, must accept personal accountability for their professional services.
Learned Profession Personal Liability Legal-Ethical Grounding Obligation
Engineer A, as a licensed professional engineer granted exclusive authority to practice by state licensing law, was obligated to accept personal liability for his acts, errors, and omissions in the performance of pollution-related professional services, rather than contractually transferring that liability to clients through indemnification clauses.
Throughout the performance of all professional services under each client engagement
Engineer A Necessity-Lapsed Indemnification Continuation Prohibition
Engineer A's original justification for the indemnification clause was the unavailability of pollution insurance during the early 1980s liability crisis; that justification has lapsed; Engineer A continues to use the clause without re-evaluation.
Engineer A is ethically prohibited from continuing to require clients to indemnify him for his own negligence through the broad indemnification clause, as the necessity-based justification for that clause — unavailability of pollution-related professional liability insurance — has lapsed with the re-entry of the insurance industry into the pollution insurance market, and the cyclical nature of the professional liability insurance market imposes an ongoing monitoring and re-evaluation obligation.
NSPE Code of Ethics Section III.9; NSPE Board of Ethical Review recognition of cyclical professional liability market
Ongoing — applies from the point of insurance market re-entry forward
requires a broad indemnification provision in all of his agreements
Engineer A Ordinary Negligence Indemnification Prohibition — Post-Insurance-Market-Normalization
The Discussion section of the Board's opinion establishes that the Section III.9 indemnification exception was intended as a temporary accommodation during the liability crisis, and that once insurance became available, the baseline prohibition on client indemnification for ordinary negligence was restored as the operative ethical standard.
Self-Negligence Indemnification Clause Prohibition Obligation
Engineer A was obligated to refrain from requiring clients to indemnify him for ordinary negligence in pollution-related services once professional liability insurance covering such services became reasonably available and affordable in the market, as the ethical justification for the Section III.9 exception no longer applied.
From the point at which professional liability insurance for pollution-related services became reasonably available and affordable in the market
We believe that this was the original intent of the drafters of the modification to Section III.9. and is also the proper interpretation of the Code of Ethics in the current professional liability environment.
Engineer A Pollution Insurance Procurement Ethical Obligation
The insurance industry has re-entered the pollution insurance market and provides limited pollution coverage for an additional premium; Engineer A continues to rely on client indemnification rather than procuring available insurance.
Professional Liability Insurance Procurement Ethical Constraint
Engineer A is ethically constrained to procure available pollution-related professional liability insurance now that the insurance industry has re-entered the market, as the availability of such insurance eliminates the necessity-based justification for the client indemnification clause and establishes insurance procurement as the primary ethical mechanism for managing professional liability risk.
Ongoing — applies from the point of insurance market re-entry to all future pollution-related service engagements
Engineer A Pollution Professional Liability Insurance Procurement
Pollution Professional Liability Insurance Market Monitoring and Procurement Capability
Engineer A requires the capability to recognize that pollution-related professional liability insurance is now available in the market and to procure such coverage, thereby fulfilling his ethical obligation and eliminating the need to transfer negligence risk to clients
The insurance industry has re-entered the pollution insurance market providing limited pollution coverage for an additional premium, making procurement both feasible and ethically obligatory for Engineer A
The case reveals Engineer A has not yet procured available pollution insurance coverage despite the insurance industry's re-entry into the market
{'license': 'Professional Engineer (Civil)', 'specialty': 'Pollution-related engineering services', 'contractual_practice': "Broad indemnification provision requiring client to cover engineer's negligence", 'historical_justification': 'Unavailability of pollution-related insurance coverage in early 1980s'}
Civil engineer who requires clients to indemnify and hold him harmless for his own negligence in pollution-related services, a practice adopted during the 1980s liability crisis due to unavailability of pollution insurance, now facing ethical reassessment as limited pollution insurance has re-entered the market.
{'type': 'service_provider_to', 'target': 'Client under Pollution Services Agreement'}
Pollution Services Indemnification-Requiring Engineer
Engineer A had inserted the indemnification provision during the early 1980's at the time of the 'liability crisis'
Engineer A Pollution Services Insurance Procurement
The re-entry of the insurance industry into the pollution coverage market creates a commercially available alternative to client indemnification. Engineer A's continued reliance on indemnification clauses rather than available insurance represents an unjustified transfer of risk to clients.
Engineer A is obligated to procure available pollution-related professional liability insurance coverage now that the insurance industry has re-entered the market, rather than continuing to rely on client indemnification clauses as the primary mechanism for managing his professional liability exposure in pollution-related services.
Upon commercial availability of pollution insurance coverage; ongoing obligation to maintain coverage while providing pollution-related services
Engineer A Pollution Services Professional Liability Insurance Procurement — Post-Market-Normalization
Engineer A was obligated to actively monitor the professional liability insurance market for pollution-related services, recognize that major insurers had re-entered the market and were offering pollution-specific coverage, and procure available pollution-related professional liability insurance as an ethical obligation that eliminated the need for client indemnification clauses.
Engineer A provided pollution-related consulting services under client indemnification agreements adopted during the 1980s liability crisis; the BER found that the availability of pollution-specific coverage from major insurers created an ethical obligation to procure such coverage.
Failure to procure available pollution-related professional liability insurance after the market normalized, resulting in continued reliance on client indemnification as a substitute for proper insurance coverage.
Engineer A Professional Liability Insurance Market Cyclicality Awareness — Pollution Services
Professional Liability Insurance Market Cyclicality Awareness and Re-Assessment Capability
Engineer A was obligated to monitor the professional liability insurance market for pollution-related services, recognize that the market had normalized approximately seven years after the liability crisis, and re-assess whether his client indemnification clause remained ethically defensible given the availability of pollution-specific coverage.
Engineer A adopted the indemnification clause during the 1980s liability crisis when pollution-related professional liability insurance was unavailable, but failed to re-assess the clause as the market normalized over the subsequent seven years.
Failure to recognize that the professional liability insurance market had changed significantly and that pollution-specific coverage had become available, resulting in continued use of an indemnification clause that was no longer ethically justified.
Engineer A Section III.9 Exception Condition Verification — Pollution Services Indemnification
Engineer A adopted client indemnification clauses during the liability crisis when pollution-related professional liability insurance was unavailable; approximately seven years later, major insurers had re-entered the market offering limited pollution and asbestos coverage, yet Engineer A continued using the same indemnification clause without verifying whether the original justifying conditions still applied.
Section III.9 Indemnification Exception Condition Verification Obligation
Engineer A was obligated to verify, before continuing to require clients to indemnify him for ordinary negligence in pollution-related services, that the conditions justifying the Section III.9 exception — specifically, the unavailability or unaffordability of professional liability insurance — still existed at the time of each contract, given that the professional liability insurance market had materially changed since the exception was originally adopted.
At the time of each new or renewed professional services agreement following the re-entry of insurers into the pollution coverage market
Engineer A Section III.9 Purposive Interpretation — Pollution Indemnification Clause
Section III.9 Indemnification Exception Purposive Scope Interpretation Capability
Engineer A was required to interpret Section III.9's indemnification exception purposively — understanding that it was adopted to protect engineers during the liability crisis when insurance was unavailable, not as a permanent license to shift negligence risk to clients — and to recognize that the exception no longer applied once pollution-related professional liability insurance became available.
Engineer A continued requiring clients to indemnify him for ordinary negligence in pollution-related services after the professional liability insurance market had normalized and pollution-specific coverage had become available.
Failure to re-evaluate the indemnification clause in light of the changed insurance market, indicating a gap in this capability that the BER's analysis was designed to remediate.
we believe there is a need to further amplify the extent to which engineers should appropriately avail themselves of the scope of Section III.9
Engineer A Self-Negligence Indemnification Clause Prohibition
Engineer A has maintained a broad indemnification clause in all pollution-related service agreements since the early 1980s liability crisis; the clause requires clients to indemnify him for his own negligence; professional liability insurance has since re-entered the market.
Self-Negligence Indemnification Clause Ethical Prohibition Constraint
Engineer A is ethically prohibited from maintaining a contractual provision requiring clients to indemnify and hold him harmless for damages or legal costs arising from his own negligence in the performance of pollution-related services, as such a provision impermissibly subordinates client financial interests to Engineer A's self-protective interests in violation of the faithful agent duty under NSPE Code Section III.9.
NSPE Code of Ethics Section III.9; BER Case 86-4 precedent
Ongoing — applies to all current and future pollution-related service agreements
Engineer A Self-Negligence Indemnification Clause Prohibition Self-Application
Self-Negligence Indemnification Clause Prohibition Self-Application Capability
Engineer A requires the capability to recognize that his broad indemnification provision — requiring clients to hold him harmless for his own negligence — is ethically impermissible under NSPE Code obligations and must be discontinued
Engineer A has maintained a broad self-negligence indemnification clause in all pollution-related service agreements, a practice that is ethically impermissible regardless of the historical circumstances that prompted its adoption
The case analysis reveals Engineer A currently lacks adequate exercise of this capability, as he continues to require clients to indemnify him for his own negligence in pollution-related service agreements
Engineer A Self-Negligence Indemnification Clause Prohibition Self-Application — Pollution Services
Engineer A was required to recognize that contractual provisions requiring clients to indemnify and hold him harmless for damages or legal costs arising from his own ordinary negligence in pollution-related services were ethically impermissible under NSPE Code Section III.9 once professional liability insurance became available, and to refrain from inserting or enforcing such provisions.
Engineer A adopted the indemnification clause during the 1980s liability crisis and continued using it after the professional liability insurance market had normalized and pollution-specific coverage had become available from major insurers.
Continued use of client indemnification clause for ordinary negligence in pollution-related services after the insurance market normalized, constituting the core ethical violation analyzed in this case.
Engineers shall accept responsibility for their professional activities; provided, however, that Engineers may seek indemnification for professional services arising out of their practice for other than gross negligence, where the Engineer's interests cannot otherwise be protected.
Engineer Liability Indemnification Contract Provision
Engineering practice community during the professional liability crisis
Contractual Indemnification and Hold-Harmless Clause for Engineer Professional Services
many engineer were forced to practice with little or no professional liability insurance, or in some instances, as a condition of performing certain types of services (e.g., pollution and asbestos-related professional services) require clients to indemnify and hold the engineer harmless for the engineer's professional errors and omissions.
Engineers providing pollution and asbestos-related professional services; evaluated by NSPE Board of Ethical Review
Identified as the contractual mechanism engineers used during the liability crisis to require clients to indemnify and hold the engineer harmless for professional errors and omissions, particularly for pollution and asbestos-related services; the Board evaluates the continued ethical permissibility of such clauses given changed insurance market conditions
Engineering Licensing Laws – Grant of Exclusive Practice Authority
State Engineering Licensing Statutes (general reference)
the law expects licensed engineers as they do other professions to perform professional services in a non-negligent manner.
NSPE Board of Ethical Review to ground the ethical obligation of engineers to accept professional responsibility
Cited as the legal basis for the exclusive authority granted to licensed engineers to practice, and as the source of the corresponding legal expectation of non-negligent performance and personal liability for professional acts, errors, and omissions
Ethics Code Living Document Adaptation — Section III.9 Indemnification Exception Evolution
Pollution services indemnification practice
The NSPE Board of Ethical Review's re-interpretation of Section III.9 in light of normalized professional liability insurance market conditions — narrowing the scope of permissible client indemnification — exemplifies the principle that the ethics code must be read in context of current practice conditions rather than frozen at the moment of its drafting.
The BER treats the ethics code as a living instrument whose provisions must be interpreted in light of current professional realities; the indemnification exception was a contextual response to a market crisis, not a permanent expansion of permissible conduct.
Ethics Code Living Document Adaptation Principle
The living-document principle is distinguished from situational ethics because it operates at the level of institutional code interpretation and amendment, not individual case-by-case deviation; the underlying value (personal professional accountability) remains constant while its operational expression adapts to market conditions.
This change reflects the view stated by the Board on numerous occasions that the Code of Ethics is a living document that must be realistic and from time to time reflect changes that occur in the practice environment in order to maintain credibility and currency
Insert Broad Indemnification Clause → Propose Code Section III.9. Amendment
Insurance Market Recovery → Reinterpret Section III.9. For Current Conditions
Learned Profession Personal Liability Acceptance — Engineer A Pollution Services Context
Engineer A's obligation to accept personal responsibility for pollution-related professional services rendered, grounded in the engineer's status as a licensed professional granted exclusive authority to practice — making client indemnification for ordinary negligence ethically problematic as a default contractual arrangement.
In this context, personal professional accountability means that Engineer A cannot routinely shift liability for ordinary negligence to clients; the engineer's licensed status carries an inherent obligation of personal answerability for professional acts and omissions.
The accountability principle is primary; indemnification is permissible only as a last resort when no insurance market alternative exists, not as a routine contractual preference.
A basic tenet of ethical conduct relates to the obligation of the engineer to accept responsibility for professional services that the engineer renders
Engineers, through the enactment of engineering licensing laws and other legal restrictions, are granted the authority to practice their profession to the exclusion of others
Licensed Engineer Accepting Professional Responsibility
{'license': 'Professional Engineer', 'specialty': 'General engineering practice (including pollution/asbestos-related services in prior era)', 'ethical_obligation': 'Obtain professional liability insurance where reasonably available and affordable; do not seek client indemnification for ordinary negligence', 'code_reference': 'NSPE Code Section III.9'}
The archetypal licensed engineer discussed throughout the case who is obligated under NSPE Code Section III.9 to accept personal responsibility for professional acts, errors, and omissions, and—in the current normalized professional liability insurance market—to obtain professional liability insurance rather than seeking client indemnification for ordinary negligence.
{'type': 'obligated_to', 'target': 'Public'}
{'type': 'regulated_by', 'target': 'NSPE Board of Ethical Review'}
Professional Liability Responsibility-Accepting Engineer
Engineers shall accept responsibility for their professional activities
Maintain Indemnification Clause Post-Crisis
Maintain Indemnification Clause Post-Crisis → Reinterpret Section III.9. For Current Conditions
National Society of Professional Engineers
Engineer A requires a broad indemnification provision in all of his agreements where he provides pollution-related services
NSPE Board of Ethical Review in analyzing Engineer A's conduct
Primary normative authority for evaluating whether Engineer A's broad indemnification provision — requiring clients to indemnify him for his own negligence — is ethically permissible under professional engineering obligations, including duties to the public, clients, and the profession
NSPE Code Living Document Current-Conditions Interpretive Obligation — Section III.9 Indemnification Context
The Board explicitly invokes the living-document character of the Code to justify interpreting Section III.9 in light of the current insurance market recovery rather than the historical liability crisis conditions.
Living Ethics Code Current-Conditions Interpretive Constraint
The Board must interpret Section III.9's indemnification exception consistent with current professional liability insurance market conditions rather than the crisis conditions that prevailed when the amendment was adopted, and reserves authority to modify its interpretive position as market conditions change.
NSPE Code of Ethics (living document principle); NSPE Board of Ethical Review interpretive authority
Ongoing; subject to revision as professional practice circumstances change
We feel it is the role of this Board to interpret the Code provisions consistent with current conditions within professional practice and we reserve the right to modify our view as circumstances within professional practice warrant.
National Society of Professional Engineers; revision proposed by Board of Ethical Review and adopted by NSPE Board of Directors
NSPE Code of Ethics for Engineers – Section III.9 (Professional Obligations)
This language was added to the NSPE Code of Ethics in response to the needs expressed by many practitioners at the height of the 'liability crisis'
NSPE Board of Ethical Review in deliberating the scope of engineer indemnification obligations
Central normative provision governing engineer acceptance of responsibility for professional activities and the permissibility of seeking indemnification for other than gross negligence; interpreted and amplified by the Board in light of current professional liability insurance market conditions
Post-liability-crisis revision (addition of indemnification proviso)
Negligence Liability Non-Transfer to Client Principle Invoked in Pollution Services Agreement
Pollution-related services agreements with all clients
Historical unavailability of pollution insurance
Engineer A's broad indemnification clause — requiring clients to hold him harmless for his own negligence — violates the principle that engineers may not contractually transfer their own negligence liability to clients, because such transfer eliminates the professional accountability incentive and misaligns the risk-bearing party with the party whose conduct creates the risk
The indemnification provision is ethically impermissible because it requires clients — who have no control over the engineer's professional conduct — to bear the financial consequences of the engineer's own negligent performance, inverting the proper allocation of professional responsibility
Even if the original adoption of the clause was understandable given 1980s insurance market conditions, the principle establishes that self-indemnification for one's own negligence is not ethically permissible as a standard professional practice, and the re-entry of insurers into the pollution market removes the last basis for justification
Ordinary Negligence Indemnification Prohibition Instance
From the time professional liability insurance became reasonably available and affordable following the liability crisis
Engineers maintaining broad indemnification provisions
Client Indemnification for Ordinary Negligence Ethically Impermissible State
Engineers who continue to require broad client indemnification for ordinary negligence after insurance market recovery
Engineer removes ordinary negligence indemnification from contracts and obtains professional liability insurance
Engineers may seek indemnification for professional services arising out of their practice for other than gross negligence, where the Engineer's interests cannot otherwise be protected
Re-entry of professional liability insurers into the market, dissolving the original necessity justification for broad indemnification provisions
Insurance industry (general market development)
Re-entry of Insurance Industry into Pollution Liability Coverage Market
Pollution Liability Insurance Availability Standard
NSPE Board of Ethical Review in evaluating the continued justification for Engineer A's indemnification clause
Factual reference establishing that the original justification for Engineer A's indemnification provision (unavailability of pollution insurance) no longer fully applies, raising the ethical question of whether the provision should be revised or eliminated
Pollution Insurance Market Collapse → Insert Broad Indemnification Clause
Pollution Insurance Market Re-Entry - Current Conditions
Pollution Insurance Market Re-Entry State
Engineer A's professional liability risk management options for pollution-related services
Insurance industry re-entry into pollution insurance market offering limited coverage for additional premium
Pollution Insurance Unavailability - Early 1980s Liability Crisis
Early 1980s through the period when insurance market re-entered pollution coverage
Engineer A's clients receiving pollution-related services
Pollution Insurance Market Unavailability State
Engineer A's professional liability risk management context for pollution-related services
Insurance industry re-entry into pollution insurance market in recent years
Liability crisis of the early 1980s causing insurance industry withdrawal from pollution coverage market
Post-Liability-Crisis Insurance Market Recovery Obligation State
From the time major professional liability insurers re-entered the A/E market through the present and ongoing
Most major professional liability insurers in the US today have reentered the A/E professional liability insurance market
Professional Liability Insurance Obtainment Obligation Active State
Engineers providing professional services approximately seven years after the liability crisis peak
Future market contraction making insurance unavailable or unaffordable
many now offer some type of limited coverage for both pollution and asbestos-related services
Re-entry of major professional liability insurers into the US A/E market, including limited pollution and asbestos coverage
Professional Accountability Invoked Against Engineer A Negligence Indemnification
Contractual freedom in professional engagements
Engineer's legitimate financial self-protection interest
Engineer A's requirement that clients indemnify him for his own negligence in pollution-related services directly conflicts with the professional accountability principle, which requires engineers to accept personal responsibility for their professional decisions and actions rather than contractually offloading that responsibility to clients
In this context, professional accountability requires that Engineer A bear the consequences of his own negligent performance of pollution services; requiring clients to absorb those consequences undermines the accountability incentive that professional licensure is designed to create
Professional accountability is not satisfied by contractual self-insulation; the principle requires that the engineer remain personally exposed to the consequences of negligent practice, which is the foundation of the professional trust relationship
Professional Liability Insurance Market Conditions Assessment
Professional liability insurance industry / market observation
Professional Liability Insurance Market Availability Assessment (A/E sector, pollution and asbestos coverage)
it appears that the professional liability insurance market has changed significantly.
NSPE Board of Ethical Review in re-evaluating the ethical permissibility of engineer-sought indemnification clauses
Empirical market-condition reference used by the Board to determine that the original justification for the indemnification proviso (unavailability of pollution/asbestos liability insurance) had materially changed, thereby warranting a revised interpretation of Section III.9 obligations
Circa seven years post-Section III.9 revision
Professional Liability Insurance Procurement Obligation — Post-Liability-Crisis Market Normalization
Following the re-entry of major professional liability insurers into the A/E market — including limited coverage for pollution and asbestos-related services — Engineer A's continued reliance on client indemnification clauses for ordinary negligence becomes ethically unjustifiable, because the market alternative that the indemnification exception was designed to substitute for is now available.
The availability of professional liability insurance in the pollution services market triggers an affirmative ethical obligation to obtain such coverage rather than continuing to require client indemnification for ordinary negligence.
Where insurance is reasonably available and affordable, the engineer must obtain it; the indemnification exception collapses back into the baseline accountability obligation once the justifying market condition (insurance unavailability) no longer obtains.
Most major professional liability insurers in the US today have reentered the A/E professional liability insurance market and many now offer some type of limited coverage for both pollution and asbestos-related services
We are mindful that the cost and scope of professional liability insurance continue to be prohibitive for some practitioners and we are in no way suggesting that the failure to obtain professional liability insurance is in any sense a breach of ethics
Propose Code Section III.9. Amendment → NSPE Code Section III.9. Adopted
Would it be ethical for Engineer A to continue to require a broad indemnification provision in all of his agreements where he provides pollution-related services?
At what specific point after the pollution insurance market recovered did Engineer A's continued use of the broad indemnification clause cross from ethically permissible to ethically impermissible, and does the Board's ruling impose a retroactive obligation to have removed the clause earlier?
Is Engineer A obligated to proactively notify existing clients that the broad indemnification clause in their current agreements is no longer ethically justified, or does the ethical obligation apply only to future agreements?
Does the subset of engineers for whom pollution liability insurance remains cost-prohibitive despite market re-entry retain an ethical right to use broad indemnification clauses, and if so, what procedural steps must they take to verify and document that the insurance affordability exception applies to their specific circumstances?
Should Engineer A have an ongoing affirmative duty to periodically reassess the professional liability insurance market and revise indemnification clauses accordingly, and what institutional mechanisms — such as periodic ethics reminders from NSPE — would support engineers in meeting this cyclical monitoring obligation?
Does the principle of Learned Profession Personal Liability Acceptance conflict with the principle of Professional Liability Insurance Procurement Obligation, in that requiring an engineer to personally bear liability for negligence may be financially ruinous without insurance, yet requiring insurance procurement as the alternative to indemnification clauses may itself be impractical for some practitioners — and how should the Board resolve this tension without leaving engineers in a position where neither option is viable?
Does the principle of Client Interest Primacy conflict with the principle of Contractual Risk Transfer Ethical Residual Awareness, given that fully eliminating indemnification clauses may expose clients to no contractual risk transfer at all while leaving engineers without insurance coverage, potentially resulting in uncollectable judgments that ultimately harm the very clients the primacy principle is meant to protect?
Does the principle of Ethics Code Living Document Adaptation conflict with the principle of Changed Circumstances Contractual Re-Evaluation Obligation, in that treating the Code as a living document that evolves with market conditions may create unpredictable retroactive ethical liability for engineers who relied in good faith on prior interpretations — such as BER Case 86-4 — when drafting their agreements?
Does the principle of Negligence Liability Non-Transfer to Client conflict with the principle of Professional Accountability, in that holding engineers strictly accountable for their own negligence is the ethical ideal, yet the practical mechanism for achieving that accountability — professional liability insurance — is itself subject to market cycles that may periodically make accountability without indemnification impossible, thereby forcing a recurring tension between the non-transfer principle and the realities of the professional liability market?
From a deontological perspective, did Engineer A fulfill their duty to accept personal liability for their own negligence as a member of a learned profession, regardless of whether insurance was available to offset that risk?
From a deontological perspective, did Engineer A violate a categorical duty to act as a faithful agent of the client by contractually shifting the financial consequences of Engineer A's own negligence onto the client, thereby subordinating client interests to Engineer A's self-protection?
From a consequentialist perspective, did the continued use of a broad indemnification provision after insurance market recovery produce net harm by exposing clients to financial risks they could not reasonably anticipate or price, while providing Engineer A with a windfall protection no longer necessitated by market conditions?
From a virtue ethics perspective, did Engineer A demonstrate the professional integrity and practical wisdom expected of a licensed engineer by failing to re-evaluate a self-protective contractual clause once the emergency conditions that originally justified it had materially changed?
If Engineer A had proactively monitored the professional liability insurance market and removed or narrowed the indemnification clause as soon as pollution coverage became available again, would the Board have found Engineer A's prior use of the clause during the liability crisis to be fully ethical under Section III.9, and what does that answer reveal about the ethics of inaction in contract management?
What if Engineer A had instead purchased available pollution liability insurance at the additional premium cost and eliminated the indemnification clause entirely — would clients have been better served financially, and would this have resolved all ethical concerns raised by the Board?
What if Engineer A belonged to the subset of practitioners for whom pollution liability insurance remained cost-prohibitive even after market re-entry — would the Board's ethical conclusion change, and if so, what procedural obligations would Engineer A have to demonstrate that the insurance affordability exception genuinely applied to their circumstances?
What if the NSPE Code had been amended after BER Case 86-4 to explicitly prohibit all indemnification clauses covering ordinary negligence, rather than relying on reinterpretation of Section III.9 — would clearer codified rules have prevented Engineer A's continued use of the clause, and does the Board's reliance on reinterpretation rather than formal amendment expose a structural weakness in professional ethics governance?
Reinterpret Section III.9. For Current Conditions
Section III.9 Cannot-Otherwise-Be-Protected Condition Deactivation — Engineer A Pollution Services
The Board interprets the Section III.9 exception's 'cannot otherwise be protected' language as a genuine condition precedent that is no longer satisfied given the recovery of the professional liability insurance market for pollution-related services.
Section III.9 Indemnification Exception Condition-Dependency Interpretive Constraint
The 'where the Engineer's interests cannot otherwise be protected' condition in Section III.9 is no longer satisfied for Engineer A's pollution-related services because professional liability insurance including pollution coverage has become reasonably available on the market, deactivating the indemnification exception and rendering Engineer A's continued use of the broad indemnification clause ethically impermissible.
From the point of pollution insurance market re-entry onward
In our view, Section III.9. should be read in the context of indemnification to mean that an engineer has an obligation to accept responsibility for professional activities and, where appropriate, obtain professional liability or other protection for the benefit of the engineer's client to the extent that such professional liability or other protection are available either on the market or in other spheres.
where such protection are reasonably available and affordable to the engineer to guard the interests of both the client and the engineer, barring special or additional circumstances, the engineer has an ethical obligation to obtain such protection and not seek indemnification from the client for ordinary negligence.
Section III.9 Indemnification Exception Temporal Scope Limitation — Post-Liability-Crisis Market Recovery
Engineer A continues to use a broad indemnification clause adopted during the liability crisis despite the insurance market recovery, invoking the Section III.9 exception beyond its intended temporal and conditional scope.
Liability Crisis Exception Temporal Scope Limitation Constraint
The Section III.9 indemnification exception, adopted in response to the liability crisis conditions of the early 1980s, does not authorize Engineer A's continued use of a broad indemnification clause approximately seven years after the amendment, when the professional liability insurance market has substantially recovered and pollution-related coverage has become available.
NSPE Code of Ethics Section III.9; NSPE Board of Ethical Review interpretation of exception scope
This language was added to the NSPE Code of Ethics in response to the needs expressed by many practitioners at the height of the 'liability crisis'.
From the point of professional liability insurance market recovery (approximately seven years post-amendment) onward
It has been approximately seven years since the modification was made to Section III.9. of the Code of Ethics.
liability crisis / unavailability of pollution insurance before re-entry of insurance industry into pollution insurance market
liability crisis and unavailability of pollution insurance starts Engineer A inserting broad indemnification clauses into contracts
liability crisis during engineers practicing with little or no professional liability insurance
modification to Section III.9 before current BER case analysis
modification to Section III.9 meets seven-year period of changed insurance market conditions
re-entry of major professional liability insurers into A/E market before current BER case Board interpretation of Section III.9