Agent-Trustee Distinction Framework (NSPE Code Interpretation)
NSPE Board of Ethical Review (interpretive reasoning)
Interpretive Framework: Agent vs. Trustee under NSPE Code Section II.4
An 'agent' is generally defined as a 'person authorized by another to act for him or one entrusted with another's business.' A 'trustee' is generally defined as one who stands in a fiduciary or confidential relationship to another.
it is not clear from a plain reading of the Code whether the original drafters intended that the term 'trustee' embrace the fiduciary and confidentiality relationship or whether it was the intent of the drafters to express a more general duty of loyalty and fair dealing.
Used by the Board to distinguish between the engineer's role as agent (authorized to act for client) versus trustee (fiduciary/confidential relationship), ultimately resolving that 'trustee' in the Code means a general duty of loyalty and fair dealing rather than a strict fiduciary duty
Agent-Trustee Loyalty Obligation Standard (General Duty of Fair Dealing)
NSPE Board of Ethical Review (interpretive standard derived from Code Section II.4 and Black's Law Dictionary)
Professional Standard: Engineer's General Duty of Loyalty and Fair Dealing as Faithful Agent/Trustee
Agent-Trustee Loyalty Obligation Standard
the general duty of loyalty and fair dealing denotes that a person has the duty of carrying out a transaction, in which he and another person are interested, in such manner as will be most for the benefit of the latter, and not in such a way that he himself might be tempted, for the sake of his personal advantage, to neglect the interests of the other.
Board of Ethical Review in balancing Engineer B's competing duties
Establishes the countervailing obligation that Engineer B, as faithful agent/trustee, had a duty to carry out the client's transaction in the manner most beneficial to the client, not to neglect client interests for personal advantage; used to weigh against the notification obligation
NSPE Board of Ethical Review Cases on Peer Review Notification and Engineer Replacement
Engineer B reviews the design information the following week and following his review, notifies Engineer A of his relationship with franchiser
Provides analogical precedential reasoning for Engineer B's situation — specifically prior BER rulings on whether an engineer may review another engineer's work without notification, and whether accepting a client while the incumbent's contract is still active is ethically permissible
Prior BER decisions relevant to review-without-notification scenarios
In BER Case 79-7, an engineer was asked to inspect mechanical and electrical engineering work performed seven years earlier.
Said the Board: 'It may be helpful for future guidance to again point out that the purpose of Section 12(a) (now Section III.8.a.) is to provide the engineer whose work is being reviewed by another engineer an opportunity to submit...comments or explanations for...technical decisions...'
We believe the reasoning cited by the Board in BER Case 79-7 are as cogent today as they were when the Board issued its opinion.
Board of Ethical Review in analyzing Engineer B's notification conduct
Cited as the primary precedent establishing the purpose of the engineer-review-notification requirement (Section III.8.a / former Section 12(a)); its reasoning is applied analogically to resolve the current case
BER Engineer Relations Code Evolution Historical Awareness BER Case
Engineer Relations Code Evolution Historical Awareness Capability
The BER demonstrated the capability to recognize and apply the historical evolution of engineer relations provisions — from strict earlier provisions to more flexible current standards — when analyzing Engineer B's obligations in the peer review context.
The BER contextualized its analysis of Engineer B's peer review notification and faithful agent obligations within the historical evolution of engineer relations provisions in the NSPE Code.
The BER's discussion of how strict engineer relations provisions were carefully modified over time to reflect client needs and evolving practice realities, and its application of current balanced standards to the case.
At one time, the Code had strict provisions regarding relations among engineers. However, with the passage of time, these strict provisions have been carefully modified to reflect the needs of clients and the evolving nature and realities of engineering practice.
As with any provision of the Code of Ethics, provisions regarding relations among engineers must be carefully balanced with the needs and requirements of the individual client as well as the particular facts and circumstance of the case.
as noted in Black's Law Dictionary (Fourth Edition): 'Trustee' is also used in a wide and perhaps inaccurate sense, to denote that a person has the duty of carrying out a transaction, in which he and another person are interested, in such manner as will be most for the benefit of the latter, and not in such a way that he himself might be tempted, for the sake of his personal advantage, to neglect the interests of the other...'
Board of Ethical Review in interpreting the term 'trustee' in the NSPE Code
Cited to provide an authoritative definition of 'trustee' that extends beyond strict fiduciary meaning to encompass a general duty of loyalty and fair dealing, enabling the Board to interpret the scope of the engineer's obligation under Code Section II.4
CausalLink_Engineer B Accepts Project Wit
CausalLink_Engineer B Notifies Engineer A
CausalLink_Engineer B Reviews Design Info
CausalLink_Franchiser Instructs Confident
CausalLink_Franchiser Retains Engineer B
CausalLink_Franchiser Terminates Engineer
Client Confidentiality-Instructing Engineering Services Client
{'instruction_type': 'Non-disclosure of successor/reviewer engagement identity to incumbent engineer', 'ethical_implication': 'Instruction created conflict between NSPE II.4 and III.8.a for Engineer B'}
Retained Engineer B to review Engineer A's work and explicitly instructed Engineer B not to disclose the new engagement to Engineer A; the Board found Engineer B should have first explored the client's reasons for this instruction before accepting the project.
{'type': 'incumbent_engineer', 'target': 'Engineer A Original Design Engineer Subject to Peer Review'}
{'type': 'retains', 'target': 'Engineer B Faithful Agent Peer-Notification-Conflicted Reviewing Engineer'}
Confidentiality-Instructing Engineering Services Client
Engineer B was told by client not to tell Engineer A about Engineer B's relationship with the client
Engineer B took this project without first exploring the reason why the client wanted Engineer B not to disclose his relationship with the client
Client Motive Inquiry Pre-Engagement Confidentiality Instruction — Engineer B Failure to Inquire Before Accepting Franchiser Engagement
The franchiser instructed Engineer B not to disclose the new engagement to Engineer A. Engineer B accepted the engagement without apparently inquiring into the reason for this instruction, which the BER analysis identified as a pre-engagement due diligence failure.
Client Motive Inquiry Pre-Engagement Confidentiality Instruction Constraint
Before accepting the franchiser's engagement subject to the confidentiality instruction, Engineer B was constrained to inquire into the franchiser's reason for the instruction not to disclose the new engagement to Engineer A, in order to assess whether compliance with the instruction would require Engineer B to violate professional ethical obligations.
NSPE Code of Ethics Sections II.4, III.8.a; professional due diligence norms
franchiser specifically tells Engineer B not to disclose to Engineer A, Engineer B's relationship with franchiser
At the time Engineer B received the franchiser's confidentiality instruction and before accepting the engagement
Engineer B reviews the design information the following week
Engineer B's act of notifying Engineer A of his relationship with franchiser was not consistent with the Code.
The Board determined that Engineer B's unilateral decision to notify Engineer A, despite the franchiser's explicit confidentiality instruction, violated Engineer B's faithful agent/trustee obligation to the client under Code Section II.4 and related confidentiality provisions. The Board found that Engineer B's altruistic or collegial motive did not justify overriding the client's instruction, constituting a violation of the Code.
Beyond the Board's finding that Engineer B's notification was inconsistent with the Code, the violation is compounded by Engineer B's failure to seek clarification of the franchiser's reasons for the confidentiality instruction before accepting the engagement. A competent and ethically attentive engineer, upon receiving an explicit client instruction to conceal a new engagement from an incumbent engineer whose work is about to be reviewed, should recognize that the instruction itself signals a potential conflict between faithful agency and peer review obligations. By accepting the engagement without inquiry, Engineer B foreclosed the possibility of negotiating a disclosure arrangement that might have satisfied both the franchiser's legitimate transition interests and the Code's peer review notification requirement. This pre-engagement failure of ethical diligence is analytically distinct from the notification timing violation the Board identified, and it represents an independent lapse that the Board's conclusion does not fully capture.
The Board's conclusion that Engineer B's notification violated the faithful agent duty treats the two competing Code obligations — faithful agency to the franchiser and peer review notification to Engineer A — as though the faithful agent duty categorically prevails. However, a more nuanced reading reveals that the Code's faithful agent standard is expressly bounded by ethical limits: engineers act as faithful agents 'within the limits of the Code.' This internal qualification means the faithful agent duty cannot be invoked to authorize a client instruction that itself directs an engineer to violate a separate Code provision. The franchiser's confidentiality instruction was not a neutral business preference but an affirmative direction to suppress a disclosure the Code independently requires. Accordingly, the faithful agent principle, properly construed, does not support the franchiser's instruction; rather, the instruction falls outside the scope of conduct the faithful agent duty is designed to protect. The Board's conclusion, while correct that the notification's timing and manner were imperfect, may overstate the weight of the faithful agent duty by failing to account for its built-in ethical ceiling.
The Board's conclusion that Engineer B's notification was inconsistent with the Code does not address the separate and aggravating ethical dimension introduced by Engineer B's simultaneous disclosure of the preliminary review results to Engineer A. Even if some form of notification to Engineer A could have been ethically required or permissible under the peer review provisions, the disclosure of substantive preliminary findings went materially beyond what any notification obligation demands. The peer review notification requirement is designed to protect Engineer A's professional dignity and opportunity to respond — not to authorize the transmission of work-product conclusions derived from a confidential client engagement. By sharing preliminary results, Engineer B exposed the franchiser's confidential design concerns without authorization, compounding the faithful agent violation with an independent breach of client confidentiality. This dual disclosure — of the engagement relationship and of the review findings — should be treated as two analytically separable acts, each warranting its own ethical assessment, rather than as a single undifferentiated notification event.
The Board's split on whether Engineer B could ethically proceed with the review at the time he did reflects a genuine and unresolved tension between two legitimate Code interests, but the split itself obscures an important structural point: the ethical permissibility of proceeding with the review was not independent of the notification question. If Engineer B was obligated to notify Engineer A before conducting the review — as the peer review notification standard suggests — then proceeding with the review before providing that notification was itself ethically impermissible, regardless of whether the subsequent notification partially remedied the procedural defect. The Board's inability to reach agreement on Q2 may stem from treating the two questions as analytically separable when they are in fact sequentially dependent: the answer to Q1 (notification timing) logically constrains the answer to Q2 (permissibility of proceeding). A finding that pre-review notification was required necessarily implies that conducting the review without it was premature and therefore impermissible under the Code.
The Board's split on Q2 also fails to address the independent ethical concern raised by Engineer B's subsequent acceptance of the full design engineering contract with the franchiser — a contract obtained in part through knowledge and professional positioning gained during the covert peer review. Even if the Board were to conclude that proceeding with the review was permissible under some reading of the Code, the peer review program's foundational purpose is collegial improvement of engineering practice, not competitive intelligence gathering. When a reviewing engineer leverages the peer review engagement to secure a successor contract — particularly one that displaces the very engineer whose work was reviewed — the review process is structurally transformed from a collegial quality-assurance mechanism into a client-directed competitive evaluation. This exploitation of the peer review framework for procurement advantage raises an independent ethical concern that neither the Board's Q1 conclusion nor its Q2 deliberations explicitly address, and it warrants separate analysis under the provisions governing engineer solicitation and competition ethics.
Across both Board conclusions, the franchiser's own ethical position remains unexamined. The franchiser affirmatively instructed Engineer B to conceal the new engagement from Engineer A — an instruction that, if followed, would have required Engineer B to conduct a covert peer review in direct violation of the Code's peer review notification standard. A client that knowingly directs an engineer to violate a Code provision is not merely a passive beneficiary of an engineer's ethical lapse; it is an active participant in the creation of the ethical conflict. While the Code's obligations run primarily to engineers rather than clients, the principle that client direction does not authorize ethical violations implies a correlative responsibility on the client's part not to issue instructions designed to circumvent professional ethical standards. The franchiser's covert review instruction should therefore be identified as an ethically impermissible client act that contributed materially to the conflict Engineer B faced, and future Board guidance should consider whether engineers have an affirmative obligation to refuse such instructions at the point of engagement rather than navigate the resulting conflict after the fact.
The Board was split on the second question and could not reach agreement.
The Board explicitly acknowledged that it could not reach a consensus determination on the second question presented in the case, resulting in a split decision with no formal conclusion. This reflects the unresolved tension between Engineer B's peer review notification obligation under Section III.8.a and the faithful agent duty under Section II.4, as well as related sub-issues such as the reasonableness of the one-week notification delay and Engineer B's failure to inquire into the client's motive before accepting the engagement.
In response to Q101: Engineer B's acceptance of the franchiser's engagement without first seeking clarification of the reason behind the confidentiality instruction was itself an ethically deficient act, independent of the subsequent notification violation. The confidentiality instruction was facially anomalous — a client directing a successor engineer not to inform the incumbent engineer of a peer review engagement is precisely the kind of instruction that signals a potential conflict with professional obligations. A competent engineer exercising reasonable professional judgment should have recognized that the instruction could not be reconciled with the peer review notification obligation under Section III.8.a without further inquiry. By proceeding without clarification, Engineer B effectively accepted a structurally compromised engagement from the outset, foreclosing the possibility of negotiating terms that might have honored both the faithful agent duty and the peer notification obligation simultaneously. The failure to inquire is not merely a procedural lapse; it reflects an absence of the proactive ethical vigilance the Code expects of engineers when client instructions appear to conflict with professional duties.
In response to Q102: The franchiser's instruction to Engineer B to conceal the new engagement from Engineer A raises an independent ethical concern that the Board did not address. While the Code's explicit obligations fall on engineers rather than clients, the franchiser's instruction was designed to exploit the transitional overlap period to conduct a covert review of Engineer A's work while Engineer A's contract remained active and Engineer A remained professionally accountable for that work. By directing Engineer B to withhold information that the Code independently required Engineer B to disclose, the franchiser effectively attempted to use its contractual authority to engineer a violation of professional norms it had no standing to override. Although the Code does not directly impose obligations on clients as non-engineer parties, the principle that client direction does not authorize ethical violations implicitly recognizes that clients bear some responsibility for the consequences of instructions that predictably place engineers in ethical jeopardy. The franchiser's conduct was procedurally unfair to Engineer A and structurally incompatible with the peer review notification framework the Code establishes to protect incumbent engineers.
In response to Q103: Engineer B's disclosure of the preliminary review results to Engineer A, in addition to disclosing the existence of the new engagement relationship, constituted a compounded violation of the faithful agent duty. The peer review notification obligation under Section III.8.a requires that the incumbent engineer be informed of the successor's engagement so that the incumbent may have an opportunity to respond to technical concerns — it does not independently authorize the successor engineer to share client work product or preliminary analytical conclusions without client consent. By disclosing both the relationship and the preliminary results, Engineer B exceeded what the notification obligation required and simultaneously deepened the breach of the confidentiality duty owed to the franchiser. A narrower disclosure — limited to the existence of the engagement and the fact of the review — would have more closely approximated compliance with Section III.8.a while minimizing the faithful agent violation. The disclosure of preliminary results thus represents an independent ethical misstep that cannot be justified by the peer notification rationale alone.
In response to Q104: Engineer B's subsequent acceptance of the full design engineering contract with the franchiser raises an independent ethical concern that the Board did not resolve. The peer review process is designed to serve collegial improvement and public safety, not to function as a competitive audition for successor work. By conducting the review — even if the review itself was technically competent — Engineer B gained privileged access to Engineer A's design decisions, methodologies, and pending concerns under conditions that Engineer A did not know about and could not contest. This informational advantage, obtained through a process Engineer A had no opportunity to participate in or respond to, provided Engineer B with a structural competitive benefit in securing the successor contract. Even if Engineer B's acceptance of the successor contract was permissible under the Code's general provisions — given that Engineer A's contract had expired before Engineer B was formally retained as design engineer — the manner in which the review was conducted taints the legitimacy of that transition. The peer review program's integrity depends on successor engineers not exploiting the review process as a vehicle for competitive positioning, and Engineer B's trajectory from covert reviewer to successor contractor raises serious questions about whether that boundary was respected.
In response to Q201: The conflict between the principle that client direction does not authorize ethical violations — invoked to justify Engineer B's notification of Engineer A — and the faithful agent trustee duty invoked to prohibit that same disclosure represents a genuine antinomy within the Code that the Board's split on Question 2 reflects but does not resolve. The more defensible resolution is that the faithful agent duty, properly understood, operates within ethical limits and cannot be construed to require an engineer to suppress a disclosure that the Code independently mandates. Section II.4 itself conditions the faithful agent obligation on consistency with ethical limits, meaning that the faithful agent duty is not absolute. However, this resolution does not fully vindicate Engineer B's conduct, because the notification as executed — disclosing preliminary results in addition to the relationship — exceeded what the competing obligation required. The correct hierarchy is: the peer notification obligation overrides the client confidentiality instruction as to the existence of the engagement, but the faithful agent duty continues to govern the scope of what may be disclosed, limiting Engineer B to the minimum disclosure necessary to honor the notification obligation.
In response to Q202: The principle of professional dignity for the incumbent engineer, which underlies the peer notification requirement, cannot be permanently subordinated to client confidentiality interests without fundamentally undermining the purpose of peer review. The peer review notification obligation exists precisely because engineers whose work is under review have a professional stake in that review — they may have information relevant to the reviewer's conclusions, they bear reputational consequences from the review's findings, and they are entitled to the opportunity to respond to technical concerns before those concerns are acted upon. A client confidentiality instruction that systematically overrides this notification right would reduce peer review to a covert audit mechanism, stripping it of the collegial character that distinguishes it from adversarial inspection. While client confidentiality is a legitimate and important Code value, it operates most forcefully with respect to business information, proprietary data, and client affairs — not with respect to the procedural rights of third-party engineers whose professional standing is directly implicated by the review. The professional dignity principle therefore represents a structural limit on the scope of client confidentiality instructions in peer review contexts.
In response to Q203: The principle that benevolent motive does not cure an ethical violation, applied by the Board to Engineer B's well-intentioned notification, is sound as a deontological matter but does not fully account for the relevance of outcomes in assessing the overall ethical quality of Engineer B's conduct. The tripartite interest balancing framework — which weighs the interests of Engineer A, the franchiser, and the broader professional community — suggests that Engineer B's notification, though procedurally deficient as to timing and scope, produced a net outcome that was superior to the alternative of complete silence. Engineer A was informed of the review and given an opportunity to respond, the franchiser's transition was managed with some degree of transparency, and the professional community's interest in peer review integrity was partially served. However, the outcome-based argument cannot rehabilitate the timing violation or the disclosure of preliminary results, because those deficiencies were not merely procedural — they reflect a failure to structure the engagement in a way that could have honored all relevant obligations simultaneously. The correct analytical conclusion is that motive and outcome are relevant to the overall ethical assessment but cannot substitute for compliance with the Code's specific procedural requirements.
NSPE Code of Ethics - Sections II.1.c, III.4, III.4.a & b
In response to Q204: The franchiser's use of the transitional overlap period — during which Engineer A's contract remained active — to conduct a covert review through Engineer B represents a structural exploitation of the at-will employment relationship that the peer review notification timing requirement is specifically designed to prevent. The at-will employment symmetry principle, which legitimately permits the franchiser to non-renew Engineer A's contract, does not extend to authorizing the franchiser to use the notice period as a window for covert competitive evaluation of Engineer A's work. The notice period exists to facilitate an orderly professional transition, not to create a vulnerability window during which the incumbent engineer's work can be reviewed without the incumbent's knowledge. By instructing Engineer B to conduct the review before Engineer A's contract expired and before Engineer A was informed, the franchiser effectively weaponized the transitional period against the very engineer it had placed on notice. This conduct is inconsistent with the reasonable timing compliance standard that the peer review notification obligation implies and undermines the procedural fairness that the Code's engineer relations provisions are designed to protect.
In response to Q301 and Q302: From a deontological perspective, Engineer B faced a genuine conflict between two categorical duties — the duty to notify the incumbent engineer prior to conducting a peer review, and the duty to act as a faithful agent to the client. The resolution of this conflict under a Kantian framework depends on which duty is more fundamental to the professional role. The peer review notification obligation is best understood as a duty owed to the professional community and to the incumbent engineer as a rights-bearing professional — it is not merely a courtesy but a procedural entitlement that exists independently of client consent. The faithful agent duty, by contrast, is a relational duty owed to a specific client and is explicitly conditioned in the Code on consistency with ethical limits. A deontological analysis therefore supports the conclusion that the peer notification duty takes precedence over the client confidentiality instruction, because the faithful agent duty is not absolute while the notification obligation reflects a categorical commitment to professional fairness. However, Engineer B's violation of the faithful agent duty in disclosing preliminary results — beyond what the notification obligation required — cannot be justified on deontological grounds, because that excess disclosure served no categorical duty and simply exceeded the scope of the competing obligation.
In response to Q303: From a consequentialist perspective, Engineer B's decision to notify Engineer A after completing the review — rather than before — produced a mixed outcome that was superior to complete silence but inferior to pre-review notification. The post-review notification gave Engineer A some opportunity to respond to the preliminary findings and preserved a degree of professional transparency, which served Engineer A's interests and the professional community's interest in peer review integrity. However, by the time notification occurred, the review was complete and Engineer B's preliminary conclusions were already formed, meaning Engineer A's opportunity to provide context or correct misunderstandings before those conclusions were reached was permanently foreclosed. A pre-review notification would have maximized the net benefit by preserving Engineer A's full participatory rights, minimizing the faithful agent violation to the extent the franchiser might have consented to a narrower disclosure, and producing a more defensible professional record. The consequentialist analysis therefore supports the conclusion that the timing of notification was suboptimal and that the ethical harm of the delay was real, even if the eventual notification partially mitigated that harm.
In response to Q304: From a virtue ethics perspective, Engineer B's conduct reflects a partial but incomplete expression of professional integrity. The voluntary decision to notify Engineer A despite the franchiser's explicit instruction demonstrates a degree of collegial respect and moral courage that is consistent with the character of a professionally virtuous engineer. However, the failure to seek clarification of the franchiser's reasons for the confidentiality instruction before accepting the engagement reflects an absence of the proactive ethical vigilance that virtue ethics would expect. A truly virtuous engineer would have recognized the structural incompatibility between the confidentiality instruction and the peer notification obligation at the outset and would have sought to resolve that tension before proceeding — either by negotiating modified engagement terms or by declining the engagement. The subsequent voluntary notification, while morally creditable, represents a reactive correction of a problem that a more ethically attentive engineer would have prevented. Virtue ethics therefore supports a nuanced assessment: Engineer B demonstrated genuine professional integrity in the notification decision but fell short of the standard of proactive ethical character that the engagement's initial circumstances demanded.
In response to Q401: If Engineer B had refused to accept the engagement unless the franchiser permitted prior notification to Engineer A, this would have represented the ethically optimal resolution of the conflict between the faithful agent duty and the peer review notification obligation. Such a refusal would have forced the franchiser to choose between granting permission for notification — thereby enabling a procedurally compliant review — or seeking a different successor engineer who might face the same ethical constraint. Either outcome would have been preferable to the path actually taken: a covert review followed by a post-hoc notification that violated both the timing requirement and the faithful agent duty. The refusal strategy is also consistent with the Code's implicit expectation that engineers not accept engagements structured in ways that make ethical compliance impossible from the outset. By conditioning acceptance on notification permission, Engineer B would have preserved the integrity of both the peer review process and the faithful agent relationship, while placing the responsibility for any resulting delay or inconvenience squarely on the franchiser's decision to impose an ethically incompatible instruction.
In response to Q402: If Engineer B had notified Engineer A before conducting the design review rather than after, the pre-review notification would have substantially satisfied the Code's peer review notification obligation under Section III.8.a, but the franchiser's confidentiality instruction would have made any timing of notification equally impermissible under a strict reading of the faithful agent standard. The faithful agent duty, as the Board interpreted it, does not distinguish between pre-review and post-review disclosure — both would have violated the franchiser's explicit instruction. However, pre-review notification would have been ethically superior for two independent reasons: first, it would have preserved Engineer A's full opportunity to provide context before Engineer B's conclusions were formed, honoring the substantive purpose of the notification obligation; and second, it would have minimized the scope of the faithful agent violation by disclosing only the existence of the engagement rather than both the engagement and preliminary results. The timing question therefore matters not only for compliance with Section III.8.a but also for calibrating the degree of the faithful agent violation — pre-review notification would have been a lesser breach of the faithful agent duty while producing a more complete satisfaction of the peer notification obligation.
In response to Q404: If Engineer A's contract with the franchiser had already expired before Engineer B conducted the review, the ethical weight of the peer review notification obligation would have been meaningfully diminished but not eliminated. The notification requirement under Section III.8.a is most forceful when the incumbent engineer remains professionally accountable for the work under review — an active contract creates ongoing professional responsibility that makes covert review particularly prejudicial to the incumbent's interests. Once the contract has expired, the incumbent engineer's direct professional stake in the review is reduced, though not extinguished, because the review's findings may still affect the incumbent's professional reputation and the quality record associated with completed work. The franchiser's confidentiality instruction would have been more defensible under the faithful agent standard in a post-expiry scenario, because the competing obligation to notify would have been weaker. However, the peer notification obligation does not disappear entirely upon contract expiration — the Code's concern for professional dignity and the opportunity to respond to technical concerns extends to completed work, particularly where the review's conclusions may be used to justify the non-renewal decision or to inform the successor engineer's approach to remediation.
The central principle tension in this case — between the faithful agent duty owed to the franchiser and the peer review notification obligation owed to Engineer A — was resolved by the Board in favor of the faithful agent duty, but only partially and without full consensus. The Board concluded that Engineer B's notification violated the faithful agent obligation, yet could not agree on whether proceeding with the review at that time was itself ethical. This split outcome reveals that the two principles were not genuinely reconciled; rather, the Board prioritized client loyalty on the disclosure question while leaving unresolved the deeper question of whether the entire engagement structure was permissible. The case teaches that when two Code provisions point in directly opposite directions — one commanding disclosure, the other forbidding it — the Code does not supply a clear lexical ordering, and the Board's inability to reach consensus on Q2 is itself evidence that the faithful agent principle cannot categorically override peer review notification norms without remainder. The unresolved tension suggests that the Code implicitly requires engineers to avoid accepting engagements structured so as to make compliance with both provisions simultaneously impossible.
The principle that a client's direction does not authorize an ethical violation — which the Board invoked to explain why Engineer B could not simply remain silent indefinitely — ultimately failed to resolve the conflict because the Board simultaneously applied the faithful agent principle to condemn the very notification that the first principle appeared to require. This internal contradiction exposes a structural gap in the Code: the 'client direction cannot override ethics' principle presupposes that the competing ethical obligation is unambiguous and superior, but where two Code provisions are in genuine equipoise, invoking one to override the other merely restates the problem rather than solving it. The case therefore teaches that the 'client direction does not authorize ethical violation' principle functions as a trump only when the competing obligation is clearly established and hierarchically superior — conditions that were not fully met here, given the Board's split on Q2. The more durable lesson is that Engineer B's pre-engagement failure to seek clarification of the franchiser's reasons for the confidentiality instruction was the point at which the conflict could have been avoided, and the Code's pre-engagement clarification obligation should be understood as the primary mechanism for preventing irreconcilable dual-provision conflicts from arising at all.
The principle of professional dignity for the incumbent engineer — which underlies the peer review notification requirement — was effectively subordinated to client loyalty in the Board's resolution of Q1, but this subordination was not cost-free and carries a systemic implication the Board did not fully articulate. When client confidentiality is permitted to override the incumbent engineer's right to know that their work is under review, the peer review process is transformed from a collegial professional improvement mechanism into a covert competitive intelligence tool available to clients willing to instruct successor engineers to remain silent. The franchiser's use of the transition overlap period to conduct a review without Engineer A's knowledge exploited the at-will employment symmetry principle — the franchiser's legitimate right not to renew — to circumvent the procedural protections that the notification timing requirement exists to provide. The case teaches that professional dignity and peer review procedural fairness cannot be indefinitely subordinated to client loyalty without hollowing out the peer review system's foundational purpose, and that the Code's peer notification obligation should be understood as a non-waivable professional duty that clients may not contractually or instructionally override, even if the faithful agent duty otherwise requires deference to client direction on confidentiality matters.
Confidentiality Instruction Imposed on Engineer B
Engineer B now operating under a client instruction that directly conflicts with professional ethical codes; the instruction itself is ethically suspect and creates an immediate obligation for Engineer B to push back or clarify
At time of Engineer B's retention (before review begins)
The franchiser's explicit instruction to Engineer B not to disclose his relationship to Engineer A becomes an active constraint on Engineer B's behavior, creating a direct conflict between client instructions and professional ethical obligations. This is not a decision by Engineer B but an external imposition that shapes the ethical landscape he must navigate.
Professional relationship enters wind-down phase; Engineer A now operates under a defined end date; franchiser begins successor search; pending design concerns become urgent to resolve
Several weeks before contract expiration (precise timing unspecified)
Engineer A receives formal notice from the franchiser that their contract will not be renewed, signaling the end of the multi-year professional relationship. This notice creates a defined countdown to contract expiration and triggers Engineer A's awareness that succession planning is underway.
Covert Peer Review Prohibition — Engineer B Review of Engineer A Without Prior Notification
Franchiser retained Engineer B to review Engineer A's pending design work while Engineer A's contract was still active, and explicitly instructed Engineer B not to disclose the new engagement to Engineer A. Engineer B proceeded with the review and notified Engineer A only after completing it.
Covert Peer Review Prohibition Constraint
Engineer B was prohibited from proceeding with the peer review of Engineer A's pending design work without first notifying Engineer A of the review engagement, notwithstanding the franchiser's explicit instruction to maintain confidentiality about Engineer B's new relationship with the franchiser.
NSPE Code of Ethics Section III.8.a; BER Case 79-7
At the time Engineer B accepted the peer review engagement and before commencing substantive review of Engineer A's design work
Engineer B reviews the design information the following week and following his review, notifies Engineer A of his relationship with franchiser and the preliminary results of his review
Covert Peer Review Prohibition — Franchiser Instruction to Engineer B
The franchiser explicitly instructed Engineer B not to disclose the review engagement to Engineer A; this instruction conflicted with the prohibition on covert peer review; the Board found that Engineer B had an obligation to notify Engineer A despite the client instruction
Engineer B (and Franchiser as instructing party)
The franchiser's instruction to Engineer B to conduct the peer review of Engineer A's work without notifying Engineer A was constrained by the prohibition on covert peer review under NSPE Code Section III.8.a — Engineer B could not ethically comply with the instruction to proceed without Engineer A's knowledge, and the franchiser could not ethically issue such an instruction.
NSPE Code of Ethics Section III.8.a; BER Case 79-7; BER Case 93-3
Section III.8.a. admonishes engineers against reviewing the work of another engineer for the same client except with expressed knowledge of the engineer or unless the original relationship between the first engineer and the client has been terminated.
From the franchiser's issuance of the non-disclosure instruction through Engineer B's eventual notification of Engineer A
Engineer B had an obligation not to notify Engineer A once Engineer B was told by client not to tell Engineer A about Engineer B's relationship with the client.
Should Engineer B notify Engineer A of the peer review engagement despite the franchiser's explicit instruction to maintain confidentiality, or comply with the client's confidentiality directive and conduct the review without informing Engineer A?
Engineer B faces a direct conflict between the franchiser's explicit confidentiality instruction and the Code's peer review notification obligation under Section III.8.a. The franchiser has instructed Engineer B not to disclose the new engagement to Engineer A, whose active design work is being reviewed. Engineer B must decide whether to comply with the client's instruction or notify Engineer A of the review relationship — and if notifying, when and to what extent.
Inform Engineer A of the peer review engagement prior to commencing the review, honoring the Section III.8.a notification obligation and preserving Engineer A's opportunity to provide technical context — even though this directly contravenes the franchiser's confidentiality instruction.
Conduct the peer review without informing Engineer A, treating the franchiser's explicit confidentiality instruction as binding under the faithful agent duty and deferring any disclosure until the client's engagement terms permit it or the contract situation changes.
Refuse to accept the review engagement unless the franchiser grants permission to notify Engineer A prior to the review, thereby conditioning acceptance on terms that make simultaneous compliance with both the faithful agent duty and the peer notification obligation structurally possible.
Should Engineer B notify Engineer A of the new engagement relationship before conducting the design review (defying the franchiser's confidentiality instruction), notify Engineer A after completing the review (as actually occurred), or remain silent entirely and comply with the franchiser's instruction?
Engineer B: Peer Review Notification Timing and Scope Decision — Whether to notify Engineer A before or after conducting the design review, and what information to disclose, given the franchiser's explicit confidentiality instruction
Disclose the new engagement relationship to Engineer A prior to beginning the design review, defying the franchiser's confidentiality instruction on the grounds that the peer review notification obligation under Section III.8.a is a non-waivable professional duty that client instructions cannot override, and limiting disclosure to the existence of the engagement without sharing preliminary findings.
Complete the design review first in compliance with the franchiser's confidentiality instruction, then notify Engineer A of both the engagement relationship and the preliminary review results, treating the post-review notification as a reasonable-timing satisfaction of the peer notification obligation while minimizing disruption to the franchiser's transition process.
Honor the franchiser's explicit confidentiality instruction in its entirety by refraining from any disclosure to Engineer A, treating the faithful agent duty as binding and the client's direction as authoritative within the scope of a legitimate business engagement, and relying on the franchiser's contractual right to manage the transition on its own terms.
Should Engineer B accept the franchiser's engagement as structured under the confidentiality instruction, seek clarification of the franchiser's reasons for the instruction and negotiate modified terms before accepting, or decline the engagement unless the franchiser permits prior notification to Engineer A?
Engineer B: Pre-Engagement Clarification Decision — Whether to seek clarification of the franchiser's reasons for the confidentiality instruction before accepting the engagement, given that the instruction facially conflicts with the peer review notification obligation
Accept the franchiser's engagement as structured, treating the confidentiality instruction as a legitimate client business preference within the scope of the faithful agent duty, and proceed with the review while managing any resulting tension with the peer notification obligation as it arises during performance.
Before accepting the engagement, ask the franchiser to explain the business rationale for the confidentiality instruction and negotiate modified engagement terms — such as a limited disclosure to Engineer A of the engagement's existence without substantive findings — that would allow Engineer B to satisfy both the peer notification obligation and the faithful agent duty simultaneously.
Condition acceptance of the engagement on the franchiser's explicit permission to notify Engineer A prior to conducting the review, declining the engagement outright if the franchiser refuses, on the grounds that an engagement structured to make compliance with the peer notification obligation impossible from the outset is one that a professionally ethical engineer should not accept.
When notifying Engineer A, should Engineer B disclose only the existence of the new engagement relationship (minimum required by Section III.8.a), disclose both the engagement relationship and the preliminary review results (as actually occurred), or disclose only the preliminary review results without identifying the new engagement relationship?
Engineer B: Scope of Disclosure to Engineer A — Whether, when notifying Engineer A, to disclose only the existence of the new engagement relationship or also share the preliminary review results, given that the peer notification obligation and the faithful agent duty impose different limits on permissible disclosure
Limit notification to Engineer A to the minimum required by Section III.8.a — informing Engineer A that Engineer B has been engaged by the franchiser and that a review of Engineer A's design work has occurred or is occurring — without sharing any preliminary findings, conclusions, or client work product derived from the review.
Notify Engineer A of both the new engagement relationship and the preliminary results of the design review, on the grounds that Engineer A's opportunity to respond to technical concerns is substantively meaningful only if Engineer A knows what those concerns are, and that the peer notification obligation's purpose of preserving technical comment opportunity implicitly requires disclosure of findings sufficient to make that opportunity real.
Notify Engineer A of the engagement relationship as required by Section III.8.a, but seek the franchiser's authorization before sharing any preliminary review findings, treating the preliminary results as client work product that requires client consent for disclosure and preserving the faithful agent duty with respect to substantive analytical conclusions while honoring the minimum notification obligation.
Should Engineer B notify Engineer A of the new engagement and peer review relationship in defiance of the franchiser's confidentiality instruction, or comply with the client's instruction and remain silent?
Engineer B must decide whether to notify Engineer A of the new engagement and peer review relationship despite the franchiser's explicit confidentiality instruction, and if so, how to scope that disclosure relative to what the peer review notification obligation actually requires.
Disclose to Engineer A the existence of the new engagement relationship and the fact that a peer review is underway, limiting disclosure strictly to what Section III.8.a requires and withholding preliminary review results as confidential client work product.
Honor the franchiser's explicit instruction and refrain from any disclosure to Engineer A until Engineer A's contract has expired and the franchiser's transition is complete, treating the faithful agent duty as binding on the scope and timing of any disclosure.
Notify Engineer A of both the new engagement relationship and the preliminary findings of the design review, on the rationale that Engineer A's full opportunity to respond to technical concerns requires knowledge of the review's substance, not merely its existence.
Should Engineer B accept the franchiser's engagement under the confidentiality instruction as given, seek clarification of the instruction's rationale before accepting, or condition acceptance on the franchiser's permission to notify Engineer A prior to conducting the review?
Engineer B must decide, at the point of engagement, whether to accept the franchiser's project under the confidentiality instruction as given, seek clarification of the reasons behind the instruction before proceeding, or decline the engagement unless the franchiser permits prior notification to Engineer A — a pre-engagement choice that determines whether ethical compliance with both the faithful agent duty and the peer review notification obligation remains possible.
Proceed with the franchiser's engagement on the terms offered, treating the confidentiality instruction as a legitimate client business preference and relying on the faithful agent duty to govern conduct during the review, with any notification question to be resolved after the review is complete.
Before accepting the engagement, ask the franchiser to explain the rationale for the confidentiality instruction, in order to determine whether the instruction can be reconciled with the peer review notification obligation or whether modified engagement terms — such as permitting limited disclosure to Engineer A — can be negotiated.
Decline to accept the engagement unless the franchiser explicitly permits Engineer B to notify Engineer A of the engagement prior to conducting the review, placing responsibility for any resulting delay or transition difficulty on the franchiser's decision to impose an ethically incompatible instruction.
Should Engineer B proceed with the design review before notifying Engineer A, or treat pre-review notification of Engineer A as a mandatory prerequisite that must be satisfied before any substantive review work begins?
Engineer B must decide whether to proceed with the design review before notifying Engineer A — conducting the review under the confidentiality instruction and notifying only afterward — or to treat pre-review notification as a procedural prerequisite that must be satisfied before any substantive review work begins, even if that means defying the franchiser's instruction at the outset of the engagement rather than after the review is complete.
Proceed with the full design review under the franchiser's confidentiality instruction, then notify Engineer A of the engagement relationship and preliminary findings after the review is complete, treating post-review notification as a reasonable accommodation of both the client's instruction and the peer notification obligation.
Treat pre-review notification of Engineer A as a mandatory procedural prerequisite under Section III.8.a, notifying Engineer A of the engagement before conducting any substantive review work, even if this requires defying the franchiser's confidentiality instruction at the outset rather than after the review is complete.
Begin preliminary scoping of the engagement but suspend substantive design review work until the franchiser either authorizes notification to Engineer A or Engineer A's contract expires, thereby preserving the faithful agent duty while avoiding the most prejudicial form of covert review — conducting substantive analysis of active work without the incumbent's knowledge.
Should Engineer B notify Engineer A of the new engagement relationship before conducting the peer review (defying the franchiser's confidentiality instruction), after completing the review (as actually occurred), or remain silent entirely — and should that notification include preliminary review findings or be limited to the existence of the engagement?
Engineer B Notification Timing and Scope: Whether Engineer B should notify Engineer A of the new engagement relationship before, during, or after conducting the peer review, and how much information to disclose, given the franchiser's explicit confidentiality instruction and the Code's peer review notification obligation under Section III.8.a.
Prior to beginning the design review, inform Engineer A of the new engagement relationship only — disclosing the existence of the successor engagement but withholding preliminary findings — thereby honoring the substantive purpose of Section III.8.a while limiting the scope of the faithful agent violation to the minimum necessary.
After completing the design review, inform Engineer A of both the new engagement relationship and the preliminary review results, as Engineer B actually did, on the theory that some post-review notification better serves Engineer A's interests than complete silence and partially honors the peer review notification obligation.
Refuse to accept the franchiser's engagement unless the franchiser permits prior notification to Engineer A, thereby conditioning acceptance on terms that would allow simultaneous compliance with both the faithful agent duty and the peer review notification obligation, and placing responsibility for any resulting delay on the party who imposed the ethically incompatible instruction.
Should Engineer B have sought clarification of the franchiser's confidentiality instruction before accepting the engagement — potentially conditioning acceptance on modified terms — or was it permissible to accept the engagement as structured and navigate the resulting ethical conflict after the fact?
Engineer B Pre-Engagement Clarification Duty: Whether Engineer B should have sought clarification of the franchiser's reasons for the confidentiality instruction before accepting the engagement, given that the instruction was facially anomalous and signaled a potential irreconcilable conflict between the faithful agent duty and the peer review notification obligation.
Before accepting the franchiser's engagement, ask the franchiser to explain the business reasons for the confidentiality instruction and negotiate modified engagement terms — such as permission to provide a limited notification to Engineer A of the engagement's existence — that would allow simultaneous compliance with both the faithful agent duty and the peer review notification obligation.
Accept the franchiser's engagement as structured, treating the confidentiality instruction as a standard business directive within the scope of the faithful agent duty, and address any conflict with the peer review notification obligation as it arises during the engagement — relying on professional judgment at that time to determine the appropriate course of action.
Decline the engagement outright on the ground that the confidentiality instruction, on its face, makes simultaneous compliance with the faithful agent duty and the peer review notification obligation impossible, thereby refusing to accept an engagement structured to require an ethical violation as a condition of performance.
Should Engineer B accept the franchiser's successor design engineering contract while Engineer A's contract remains active, or refrain from accepting the successor engagement until Engineer A's contract has fully expired?
Engineer B was retained by the franchiser to conduct a peer review of Engineer A's active design work while Engineer A's contract remained in force. Following the review, Engineer B accepted the franchiser's full successor design engineering contract. The ethical question is whether Engineer B's acceptance of the successor contract — obtained in part through knowledge and professional positioning gained during the peer review — was permissible, and whether the timing of that acceptance relative to Engineer A's contract expiration is the dispositive ethical boundary.
Refrain from accepting any successor design engineering engagement from the franchiser until Engineer A's contract has fully expired, ensuring that the peer review relationship is not used as a vehicle for competitive positioning while the incumbent's contractual relationship remains active.
Accept the franchiser's successor design engineering contract during the active review period, treating the franchiser's right to manage its own contractor relationships and the at-will employment symmetry principle as sufficient authorization for the concurrent engagement.
Accept the successor contract after Engineer A's contract expires, but only after having fulfilled all collegial notification duties during the review phase — treating timely and complete notification of Engineer A as a prerequisite condition that must be satisfied before the successor engagement can be ethically accepted.
Should Engineer B accept the peer review engagement as structured under the franchiser's confidentiality instruction, seek clarification of the instruction's basis before proceeding, or decline the engagement unless the franchiser permits prior notification to Engineer A?
Before accepting the franchiser's peer review engagement, Engineer B received an explicit instruction not to disclose the new engagement to Engineer A. This instruction was facially anomalous — a client directing a successor engineer to conceal a peer review from the incumbent whose active work is under evaluation. Engineer B must decide at the point of engagement whether to accept the engagement as structured, seek clarification of the franchiser's reasons for the confidentiality instruction, or decline the engagement unless notification terms are renegotiated.
Proceed with the peer review engagement as structured under the franchiser's confidentiality instruction, treating the client's direction as a binding engagement term and managing any resulting conflict between faithful agency and peer notification duties after the fact.
Before accepting the engagement, ask the franchiser to explain the basis for the confidentiality instruction and explore whether modified engagement terms — permitting at least minimal notification to Engineer A — could satisfy both the client's transition interests and the Code's peer review notification requirement.
Refuse to accept the peer review engagement unless the franchiser agrees to permit prior notification to Engineer A, treating the confidentiality instruction as structurally incompatible with the Code's peer notification obligation and placing responsibility for any resulting delay on the franchiser's decision to impose an ethically incompatible instruction.
Should Engineer B notify Engineer A of the new engagement and peer review despite the franchiser's explicit confidentiality instruction, or comply with the client's instruction and proceed with the review without disclosing the relationship to Engineer A?
Engineer B: Peer Review Notification vs. Faithful Agent Compliance When Client Instructs Concealment
Inform Engineer A of the new engagement relationship and the impending peer review prior to beginning the design review, treating the Section III.8.a notification obligation as a non-waivable professional duty that the franchiser's confidentiality instruction cannot override.
Follow the franchiser's explicit instruction, conduct the peer review without disclosing the engagement to Engineer A, and treat the faithful agent duty as binding on the scope of permissible disclosure throughout the engagement.
Decline to accept the engagement unless the franchiser grants permission to notify Engineer A prior to the review, thereby preserving compliance with both the peer notification obligation and the faithful agent duty by placing responsibility for the conflict on the party who imposed the incompatible instruction.
Should Engineer B limit notification to Engineer A to the existence of the new engagement relationship, or also disclose the preliminary results of the peer review when notifying Engineer A?
Engineer B: Scope of Permissible Disclosure — Engagement Relationship Only vs. Preliminary Review Results
Limit notification to Engineer A to the fact of the new engagement relationship and the existence of the peer review, without transmitting any preliminary analytical conclusions or design-specific findings derived from the confidential client engagement.
Notify Engineer A of both the new engagement relationship and the preliminary results of the peer review, on the ground that Engineer A cannot meaningfully exercise the right to respond to technical concerns without knowing the substance of those concerns.
Before notifying Engineer A of anything, return to the franchiser and seek explicit authorization for the minimum disclosure necessary to satisfy the peer review notification obligation, thereby preserving the faithful agent relationship while attempting to create a compliant notification pathway.
Should Engineer B seek clarification of the franchiser's reasons for the confidentiality instruction before accepting the peer review engagement, or accept the engagement as structured and manage the resulting conflict between faithful agency and peer notification obligations after the fact?
Engineer B: Pre-Engagement Clarification Obligation — Whether to Seek Clarification of Confidentiality Instruction Before Accepting the Engagement
Before accepting the franchiser's engagement, ask the franchiser to explain the business reason for the confidentiality instruction and negotiate engagement terms that permit at minimum the minimum disclosure required by Section III.8.a, conditioning acceptance on a satisfactory resolution of the conflict.
Accept the engagement as structured, treating the confidentiality instruction as a standard client direction within the faithful agent framework, and address any conflict with the peer notification obligation at the point it becomes operationally unavoidable during or after the review.
Decline to accept the engagement at all unless the franchiser withdraws the confidentiality instruction, on the ground that an engagement structured to make simultaneous compliance with both the faithful agent duty and the peer notification obligation impossible should not be accepted by a professionally responsible engineer.
Should Engineer B notify Engineer A of his relationship with the franchiser and the ongoing peer review despite the franchiser's explicit confidentiality instruction, and if so, at what point relative to conducting the review?
Engineer B's Peer Review Notification and Consent Fulfillment: Whether Engineer B should notify Engineer A of the new engagement relationship and the ongoing peer review before, during, or after conducting the review, despite the franchiser's explicit confidentiality instruction.
Inform Engineer A of the new engagement relationship and the impending peer review prior to beginning any design review work, treating the notification obligation as a procedural prerequisite that the franchiser's confidentiality instruction cannot override, and limiting disclosure to the existence of the engagement rather than any preliminary findings.
Conduct the peer review as instructed by the franchiser, then notify Engineer A of both the engagement relationship and the preliminary review results after the review is complete, reasoning that some notification — even post-review — partially honors the peer review obligation while minimizing disruption to the franchiser's transition process.
Refuse to accept the peer review engagement unless the franchiser grants permission to notify Engineer A prior to conducting the review, conditioning acceptance on the franchiser's agreement to a procedurally compliant notification arrangement and thereby placing responsibility for any resulting delay on the party who imposed the ethically incompatible instruction.
Should Engineer B have sought clarification of the franchiser's confidentiality instruction before accepting the peer review engagement, or was it permissible to accept the engagement and navigate the resulting conflict after the fact?
Engineer B's Pre-Engagement Clarification Duty: Whether Engineer B should have sought clarification of the franchiser's reasons for the confidentiality instruction before accepting the peer review engagement, given that the instruction was facially anomalous and signaled a structural conflict with the peer review notification obligation.
Before accepting the peer review engagement, ask the franchiser to explain the business reason for the confidentiality instruction and negotiate modified engagement terms — such as permission to notify Engineer A prior to the review — that would allow compliance with both the faithful agent duty and the peer notification obligation, declining the engagement if the franchiser refuses to permit any notification.
Accept the peer review engagement under the franchiser's confidentiality instruction, treating the instruction as a routine client confidentiality preference within the scope of the faithful agent duty, and address any resulting conflict with the peer notification obligation as it arises during the engagement — as Engineer B actually did by notifying Engineer A after completing the review.
Accept the peer review engagement but explicitly reserve in writing the right to comply with applicable Code obligations — including peer review notification — notwithstanding the confidentiality instruction, thereby placing the franchiser on notice that the instruction will not be followed to the extent it conflicts with mandatory professional duties, without requiring the franchiser to affirmatively grant permission.
Should Engineer B have limited disclosure to Engineer A to the existence of the new engagement relationship, or was Engineer B also permitted — or obligated — to share the preliminary review results at the time of notification?
Engineer B's Scope of Disclosure to Engineer A: Whether Engineer B's disclosure to Engineer A should have been limited to the existence of the new engagement relationship, or whether sharing the preliminary review results was also permissible or required under the peer review notification obligation.
Limit notification to Engineer A to the fact of the new engagement relationship with the franchiser and the fact that a peer review was conducted, without sharing any preliminary findings or analytical conclusions, thereby honoring the minimum required by the peer notification obligation while minimizing the compounding breach of the faithful agent duty.
Notify Engineer A of both the new engagement relationship and the preliminary review findings, reasoning that a notification limited to the existence of the engagement is insufficient to give Engineer A a meaningful opportunity to respond to technical concerns identified during the review, and that the peer notification obligation's substantive purpose requires disclosure of what was found.
Notify Engineer A of the engagement relationship immediately, then seek the franchiser's consent before sharing any preliminary review findings with Engineer A, preserving Engineer A's right to know of the review while honoring the faithful agent duty with respect to work-product confidentiality until the client either grants permission or the review process reaches a stage where disclosure is formally required.
Preliminary review findings now exist; these findings were generated without Engineer A's input or knowledge; the results carry ethical baggage that may affect their reliability and fairness
One week after Engineer B's retention, immediately before notification to Engineer A
Engineer B completes his review of the franchiser's pending design information while still operating under the confidentiality instruction and before notifying Engineer A. The review results are obtained in an ethically compromised context, raising questions about the validity and fairness of the assessment.
NSPE Board of Ethical Review / professional consensus
Professional Norms on Engineer Confidentiality and Client Loyalty
Engineer Confidentiality and Loyalty Obligation Standard
Engineer B when weighing the franchiser's instruction against professional obligations to Engineer A
Governs the tension between Engineer B's duty to follow the franchiser's confidentiality instruction and Engineer B's professional obligation of fairness to Engineer A; also governs Engineer A's obligations regarding design information during the transition period
Engineer's Right to Be Informed When Work Is Under Review
Engineer Notification Right in Review Contexts
Engineer B in justifying notification to Engineer A prior to or immediately following the review
Establishes Engineer A's professional right to be notified that Engineer B has been retained to review Engineer A's pending design work, grounding Engineer B's ultimate decision to notify despite the franchiser's instruction
Professional Norms Governing Engineer Competition and Client Solicitation
Engineer Solicitation and Competition Ethics Standard
franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review
Engineer A's agreement with the franchiser expires and the franchiser retains Engineer B as its design engineer
Engineer B when accepting the franchiser's initial review engagement and subsequent full design contract
Governs whether Engineer B's acceptance of the franchiser's engagement — while Engineer A's contract is still active and while conducting a review of Engineer A's work — constitutes ethically permissible competition or an improper solicitation of an incumbent engineer's client
Engineer A Client Relationship Established — Franchiser
From initial retention through expiration of the contract
Engineer A is retained by an major franchiser to provide engineering design services for a chain of stores throughout the United States
Engineer A's multi-year active professional relationship with the franchiser
Expiration of Engineer A's agreement with the franchiser
After several years, the franchiser decides to terminate its relationship with Engineer A
Franchiser retains Engineer A to provide engineering design services for a chain of stores throughout the United States
Engineer A Employment Terminated — Franchiser Non-Renewal
From expiration of Engineer A's agreement onward
the franchiser decides to terminate its relationship with Engineer A and provides Engineer A of notice of its intent not to renew its contract with Engineer A's firm
Engineer A's post-contractual state following franchiser's non-renewal
Not terminated within the case timeframe; persists as post-engagement state
Several weeks later, Engineer A's agreement with the franchiser expires
Franchiser's contract with Engineer A expires following notice of non-renewal
Engineer A Informed of Successor Engagement
Information asymmetry partially resolved; Engineer A now aware of parallel engagement; professional dialogue between engineers becomes possible; Engineer B's ethical standing partially restored by belated disclosure
One week after being retained, Engineer B notifies Engineer A of his relationship with the franchiser and shares the preliminary review results. This notification, while belated, partially remedies the ethical violation of non-disclosure and shifts the ethical landscape significantly.
Engineer A Kept Uninformed During Review
Engineer A operates under false assumption of sole engagement; his work is being evaluated without his knowledge or opportunity to respond; professional harm accumulating in background
During the one-week period between Engineer B's retention and his notification to Engineer A
As a direct consequence of the franchiser's confidentiality instruction and Engineer B's initial compliance, Engineer A remains unaware that his work is being reviewed by a successor engineer while he is still under contract. This state of uninformed vulnerability persists for approximately one week.
Engineer A Original Design Engineer Subject to Peer Review
{'license': 'Professional Engineer', 'right': 'To receive notification of peer review under NSPE III.8.a', 'purpose_of_notification': 'To submit comments or explanations for technical decisions, enabling reviewing engineer to have fuller understanding of original design'}
The incumbent engineer whose prior work is being reviewed by Engineer B; not initially notified of Engineer B's engagement per client instruction; ultimately notified by Engineer B after approximately one week; the Board found Engineer A's rights were not prejudiced by the short delay.
{'type': 'client', 'target': 'Client Confidentiality-Instructing Engineering Services Client'}
{'type': 'peer', 'target': 'Engineer B Faithful Agent Peer-Notification-Conflicted Reviewing Engineer'}
{'type': 'work_reviewed_by', 'target': 'Engineer B Faithful Agent Peer-Notification-Conflicted Reviewing Engineer'}
Original Design Engineer Subject to Peer Review
Section III.8.a. admonishes engineers against reviewing the work of another engineer for the same client except with expressed knowledge of the engineer
We find nothing to suggest that Engineer A's rights were prejudiced by the short delay
the purpose of Section 12(a) (now Section III.8.a.) is to provide the engineer whose work is being reviewed by another engineer an opportunity to submit...comments or explanations
Engineer A's contract (active period) overlaps Engineer B's initial retention and review
before the contract expires, the franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review...Several weeks later, Engineer A's agreement with the franchiser expires
Engineer B's initial retention and review
Entity1 starts before Entity2 and ends during Entity2
Engineer A's contract (active period) overlaps Engineer B's notification to Engineer A
Engineer B notifies Engineer A...Several weeks later, Engineer A's agreement with the franchiser expires, implying Engineer A's contract was still active at time of notification
Engineer A's contract expiration meets Engineer B formally retained as design engineer
Several weeks later, Engineer A's agreement with the franchiser expires and the franchiser retains Engineer B as its design engineer
Engineer B formally retained as design engineer
Entity1 ends exactly when Entity2 begins
Engineer B Accepts Project Without Clarification
Accepting the confidentiality condition without understanding its rationale left Engineer B without a principled basis for evaluating whether compliance was ethically permissible
Engineer B's subsequent decision to disclose anyway suggests the confidentiality condition was not fully internalized or agreed to at the outset
Failure to clarify potentially enabled the franchiser to place Engineer B in an ethically untenable position
Informed consent and clarity in professional relationships
NSPE Code Section II.4: duty as faithful agent and trustee
Professional responsibility to assess ethical dimensions of engagements before acceptance
Secure the engineering engagement and begin work promptly in response to the client's stated urgency regarding pending design concerns
Understanding of NSPE Code obligations when reviewing another engineer's work
At the time of retention; before beginning the design review
Duty of due diligence in understanding the terms and ethical dimensions of a new client relationship
Professional obligation to clarify the ethical implications of client instructions before accepting an engagement that places professional duties in conflict (noted explicitly as ethically problematic by the Board)
Engineer B accepted the franchiser's engagement and its confidentiality condition without first exploring or clarifying the reason why the client did not want Engineer B to disclose his relationship with the franchiser to Engineer A.
Engineer B Accepts Project Without Clarification (Action 4) → Design Review Completed Under Conflict (Event 6)
Engineer B accepted the franchiser's engagement and its confidentiality condition without first exploring the ethical implications, and subsequently Engineer B completes his review of the franchiser's pending design information while still operating under the conflict of interest
Engineer B Accepts Project Without Clarification (Action 4)
Had Engineer B sought ethical clarification before accepting or before beginning the review, the conflict would have been identified and either resolved or the review deferred, preventing completion under conflicted conditions
Design Review Completed Under Conflict (Event 6)
Absence of a self-imposed pause pending ethics review
Engineer B proceeding to review design information before resolving the conflict
Engineer B's acceptance of the confidentiality condition as a binding constraint
Engineer B's acceptance of the engagement without ethical clarification
Unclarified acceptance + confidentiality compliance + proceeding with review = design review completed under unresolved conflict of interest
Engineer B Active Contract Incumbent Review Prohibition Recognition
Active Contract Incumbent Review Prohibition Recognition Capability
Engineer B recognized that Engineer A's contract was still active at the time of the peer review engagement and that professional ethics prohibited conducting the review without Engineer A's knowledge, ultimately acting on this recognition by notifying Engineer A.
Engineer B was retained by the franchiser while Engineer A's contract was still active; the franchiser explicitly instructed Engineer B not to disclose the engagement to Engineer A.
Engineer B notified Engineer A of the peer review engagement despite the franchiser's explicit instruction to maintain confidentiality, recognizing that Engineer A's active contract status triggered the notification obligation.
Prior to the review, franchiser specifically tells Engineer B not to disclose to Engineer A, Engineer B's relationship with franchiser.
Nevertheless, Engineer B reviews the design information the following week and following his review, notifies Engineer A of his relationship with franchiser and the preliminary results of his review.
Engineer B Active Contract Incumbent Review Prohibition Recognition BER Case
Engineer B needed the capability to recognize that Engineer A's contract with the franchiser was still active when Engineer B was retained to review Engineer A's work, triggering the Section III.8.a. notification obligation.
Engineer B was retained to review Engineer A's work while Engineer A's contract with the franchiser was still active, making the Section III.8.a. notification obligation operative.
The case facts establishing that Engineer B was retained to review Engineer A's pending design work while Engineer A's contract was still in force, and the BER's analysis of the resulting notification obligations.
Engineer B Altruistic Disclosure Client Interest Neglect Self-Assessment BER Case
Faithful Agent Client Benefit Primacy Over Personal Advantage Recognition Capability
Engineer B needed the capability to assess whether his disclosure to Engineer A — even though not motivated by personal advantage — nonetheless constituted a neglect of the franchiser client's interests under the faithful agent and trustee standard.
Engineer B notified Engineer A of the review engagement and preliminary results despite client instruction; the BER found this violated the faithful agent obligation even though Engineer B was not acting from personal advantage.
The BER's finding that Engineer B's disclosure, though not motivated by personal advantage, constituted a neglect of client interests because the benefits of disclosure did not outweigh the detriments to the client.
A review of the facts in this case makes clear that Engineer B did not appear to be motivated by personal advantage in informing Engineer A of his relationship with client.
We surmise that Engineer B's disclosure of his relationship with client constitutes a neglect of the interests of his client and we believe that on balance that the benefits to be derived by Engineer B's disclosure for all parties involved did not outweigh detriments that may be suffered by the client.
Engineer B Altruistic Motive Non-Override of Faithful Agent Duty Instance
Engineer B notified Engineer A of the review engagement despite the franchiser's explicit instruction; the Board found that Engineer B's non-self-interested motivation did not render the disclosure ethically permissible because the client's interests were neglected
Altruistic Motive Faithful Agent Duty Non-Override Constraint
Engineer B's apparent altruistic or collegial motivation in notifying Engineer A — not motivated by personal advantage — did not override or justify Engineer B's breach of the faithful agent duty to the franchiser client, because the balance of benefits to all parties did not outweigh the detriments to the client.
NSPE Code of Ethics Section II.4; BER Case 93-3
Engineer B did not appear to be motivated by personal advantage in informing Engineer A of his relationship with client.
At the time Engineer B decided to notify Engineer A despite the franchiser's instruction
Engineer B's disclosure of his relationship with client constitutes a neglect of the interests of his client
we believe that on balance that the benefits to be derived by Engineer B's disclosure for all parties involved did not outweigh detriments that may be suffered by the client
Engineer B Client-Directed Confidentiality Instruction Voluntarily Overridden
From Engineer B's completion of design review until notification of Engineer A
Client-Directed Confidentiality Instruction Voluntarily Overridden by Engineer State
Engineer B's decision to notify Engineer A despite franchiser's explicit instruction to the contrary
Engineer B's notification to Engineer A of his relationship with the franchiser and preliminary review results
Engineer B completes review of design information and independently decides to notify Engineer A of the engagement and preliminary results, contrary to franchiser's instruction
Engineer B Client Benefit vs. All-Party Benefit Disclosure Balancing Constraint Instance
The Board applied a balancing test — benefits of disclosure to all parties vs. detriments to the client — and found that Engineer B's disclosure failed this test, constituting a neglect of client interests under the faithful agent standard
Engineer B's disclosure decision was constrained by the requirement to assess whether the benefits of disclosure to all parties outweighed the detriments to the client — the Board found they did not, establishing that the client-benefit primacy standard prohibited Engineer B's disclosure even when motivated by collegial rather than self-interested purposes.
NSPE Code of Ethics Section II.4; Black's Law Dictionary (Fourth Edition); BER Case 93-3
the general duty of loyalty and fair dealing denotes that a person has the duty of carrying out a transaction, in which he and another person are interested, in such manner as will be most for the benefit of the latter
Engineer B Client Instruction Non-Override Collegial Notification Self-Recognition
Client Instruction Non-Override of Collegial Peer-Review Notification Self-Recognition Capability
Engineer B recognized that the franchiser's explicit instruction not to disclose the peer review engagement to Engineer A did not override Engineer B's independent professional ethics obligation to notify Engineer A, correctly identifying the limits of client authority over the engineer's collegial duties.
The franchiser explicitly instructed Engineer B not to disclose the engagement to Engineer A before the review commenced.
Engineer B acted contrary to the franchiser's explicit confidentiality instruction by notifying Engineer A, demonstrating recognition that client authority does not extend to directing ethics violations.
Engineer B Covert Review Instruction Resistance
Covert Review Instruction Resistance Capability
Engineer B demonstrated the capability to recognize and resist the franchiser's instruction to conduct the peer review of Engineer A's work covertly, correctly identifying that such an instruction violated professional ethics obligations of fairness and collegial respect.
The franchiser explicitly directed Engineer B to keep the peer review engagement confidential from Engineer A, whose contract was still active.
Despite the franchiser's explicit pre-review instruction not to disclose the engagement to Engineer A, Engineer B proceeded to notify Engineer A of both the engagement and the preliminary results.
Engineer B Faithful Agent Trustee Term Scope Interpretation BER Case
Faithful Agent Trustee Term Scope Interpretation Capability
Engineer B was required to correctly interpret the scope of 'trustee' in NSPE Code Section II.4 as a general duty of loyalty and fair dealing rather than a strict fiduciary/confidentiality relationship, in order to assess the weight of the faithful agent obligation against the peer review notification obligation.
Engineer B was retained by the franchiser to review Engineer A's work and instructed not to disclose the engagement; the BER analyzed whether Engineer B's disclosure violated the faithful agent obligation by interpreting the scope of 'trustee.'
The BER's analysis of whether Engineer B's disclosure to Engineer A violated the faithful agent and trustee obligation, resolved by interpreting 'trustee' as general loyalty duty rather than strict fiduciary duty.
in view of the fact that drafters of the Code included separate provisions specifically addressing the obligations of engineers to not disclose confidential information (See Code Sections II.1.c., III.4. and III.4.a & b.), we interpret the term 'trustee' to refer to the more general duty of loyalty and fair dealing.
Engineer B Notifies Engineer A of Relationship and Review
Direct violation of the franchiser's explicit confidentiality instruction, constituting a breach of the faithful agent and trustee duty under NSPE Code Section II.4
Possible prejudice to the franchiser's ability to control the narrative of the engineering transition
Potential harm to the franchiser's business interests and transition management strategy
NSPE Code Section III.8.a: notification to Engineer A that his work was being reviewed by another engineer for the same client
NSPE Code Section II.4: faithful agent and trustee obligations
NSPE Code Section III.8.a: professional transparency between engineers when one reviews another's work
Professional integrity and peer respect among engineers
Fulfill his professional obligation under NSPE Code Section III.8.a to notify Engineer A that his work was being reviewed, and to provide Engineer A with the preliminary results so Engineer A could offer context or explanations for his technical decisions
Ethical judgment in resolving competing professional obligations
Professional communication with peer engineers
Understanding of NSPE Code Sections II.4 and III.8.a and their relative weight
One week after retention; immediately following completion of the design review
Direct client instruction not to disclose Engineer B's relationship with the franchiser to Engineer A
General duty of loyalty and fair dealing to the client as defined by the Board's interpretation of 'trustee'
NSPE Code Section II.4: duty as faithful agent and trustee to act in the client's best interests
Following his review of the design information, and contrary to the franchiser's explicit instruction, Engineer B notified Engineer A of his relationship with the franchiser and the preliminary results of his design review.
Engineer B Peer Review Collegial Improvement Purpose Fidelity BER Case
Peer Review Collegial Improvement Purpose Fidelity Capability
Engineer B needed the capability to conduct the peer review of Engineer A's work for its legitimate collegial improvement purpose — providing the franchiser with an independent technical assessment — while navigating the competing obligations of faithful agent duty and peer review notification.
Engineer B was retained to review Engineer A's pending design work for the franchiser, with the legitimate purpose of providing independent technical assessment of design concerns.
Engineer B's conduct of the peer review and disclosure of preliminary results to Engineer A, reflecting awareness of the collegial improvement purpose of peer review even while the BER found the disclosure itself to be ethically impermissible.
the purpose of Section 12(a) (now Section III.8.a.) is to provide the engineer whose work is being reviewed by another engineer an opportunity to submit...comments or explanations for...technical decisions, thereby enabling the reviewing engineer to have the benefit of a fuller understanding of the technical considerations in the original design in framing comments or suggestions for the benefit of the client.
Engineer B Peer Review Incumbent Notification Reasonable Timing Calibration BER Case
Peer Review Incumbent Notification Reasonable Timing Calibration Capability
Engineer B needed the capability to calibrate whether his one-week delay in notifying Engineer A of the review engagement and preliminary results satisfied the 'reasonable period of time' standard under Section III.8.a.
Engineer B delayed one week before notifying Engineer A of the review engagement and preliminary results; the BER assessed whether this delay violated Section III.8.a.'s reasonable timing requirement.
The BER's finding that the one-week delay was not unreasonable and did not prejudice Engineer A's rights, confirming that the reasonable timing standard was satisfied.
We interpret Section III.8.a. to require disclosure within a reasonable period of time following the establishment of the relationship and the review.
We find nothing to suggest that Engineer A's rights were prejudiced by the short delay. In view of all of the facts and circumstances involved in this case, we believe the one week delay is not unreasonable and consistent with Section III.8.a.
Engineer B Peer Review Notification One-Week Delay Reasonableness Assessment
Engineer B was retained by the franchiser to review Engineer A's pending design work; Engineer B notified Engineer A approximately one week after accepting the engagement; the Board assessed whether this delay violated the notification timing requirement of Section III.8.a
Peer Review Notification Reasonable Timing Constraint
Engineer B's one-week delay between accepting the franchiser's engagement and notifying Engineer A of the peer review relationship was assessed against the 'reasonable period of time' standard under Section III.8.a and found not to constitute a violation, because Engineer A's professional rights were not prejudiced by the short delay.
NSPE Code of Ethics Section III.8.a; BER Case 93-3
we would note that Engineer B's delay in informing Engineer A of his relationship with client and the preliminary results of his review was not a violation of Section III.8.a.
One-week period between Engineer B's engagement and notification to Engineer A
We find nothing to suggest that Engineer A's rights were prejudiced by the short delay.
we believe the one week delay is not unreasonable and consistent with Section III.8.a.
Engineer B Peer Review Notification Protocol BER Case
Peer Review Notification Protocol Capability
Engineer B exercised the capability to recognize the procedural obligation to notify Engineer A of the peer review engagement, though the BER found this notification was ethically impermissible given the client's explicit instruction not to disclose.
Engineer B notified Engineer A of the peer review engagement despite the franchiser's instruction not to do so, demonstrating awareness of but ultimately misapplying the notification obligation given the conflicting faithful agent duty.
Engineer B's actual notification of Engineer A of the review engagement and preliminary results, demonstrating awareness of the notification obligation under Section III.8.a.
Engineer B Peer Review Notification Protocol Fulfillment
Engineer B fulfilled the procedural obligation to notify Engineer A that a peer review of Engineer A's professional work was being conducted, recognizing that professional courtesy and ethical norms required such notification regardless of client instructions to the contrary.
Engineer B was retained to review Engineer A's pending design concerns while Engineer A's contract was still active.
Engineer B notified Engineer A of the peer review relationship with the franchiser following completion of the review, despite the franchiser's prior instruction to maintain confidentiality.
Engineer B reviews the design information the following week and following his review, notifies Engineer A of his relationship with franchiser and the preliminary results of his review.
Engineer B Peer Review Technical Comment Opportunity Preservation BER Case
Peer Review Technical Comment Opportunity Preservation Capability
Engineer B needed the capability to recognize and fulfill the obligation to ensure Engineer A had an opportunity to submit technical comments and explanations for design decisions, consistent with the purpose of Section III.8.a. as articulated in BER Case 79-7.
Engineer B notified Engineer A of the review engagement and preliminary results, in part to give Engineer A an opportunity to submit technical comments — consistent with the purpose of Section III.8.a. as articulated in BER Case 79-7.
Engineer B's disclosure of preliminary review results to Engineer A, which — while found unethical due to the client's confidentiality instruction — reflected awareness of the Section III.8.a. purpose of providing the reviewed engineer an opportunity to respond.
Engineer B Peer Review vs Faithful Agent Dual Code Provision Conflict Resolution BER Case
Peer Review vs. Faithful Agent Dual Code Provision Conflict Resolution Capability
Engineer B needed the capability to recognize and resolve the conflict between Section III.8.a. (peer review notification obligation) and Section II.4 (faithful agent and trustee obligation) when the client explicitly instructed him not to disclose the review engagement to Engineer A.
Engineer B faced simultaneous obligations under Section III.8.a. to notify Engineer A and under Section II.4 to act as faithful agent for the franchiser client who had instructed non-disclosure.
Engineer B's decision to notify Engineer A despite client instruction, which the BER found to be unethical because the faithful agent obligation took precedence once the client explicitly instructed non-disclosure.
The facts in this case present the Board with two conflicting provisions of the Code of Ethics: (1) the obligation of the engineer to provide appropriate notice to another engineer in connection with his reviewing the work of that engineer, and (2) the general duty of the engineer as 'faithful agent and trustee.'
Engineer B Post-Review Successor Conflict Self-Assessment
Post-Peer-Review Competitive Participation Conflict Self-Assessment Capability
Engineer B was required to assess whether accepting the successor design engineering contract after having conducted a peer review of Engineer A's work created a conflict of interest or unfair competitive advantage, and to determine the conditions under which such acceptance was ethically permissible.
Engineer B conducted a peer review of Engineer A's pending design concerns and subsequently accepted the successor design engineering contract after Engineer A's contract expired.
Engineer B accepted the successor design engineering role only after Engineer A's contract had expired, suggesting a self-assessment that post-expiration acceptance was permissible given the circumstances.
Several weeks later, Engineer A's agreement with the franchiser expires and the franchiser retains Engineer B as its design engineer.
Engineer B Pre-Engagement Client Confidentiality Instruction Rationale Inquiry BER Case
Pre-Engagement Client Confidentiality Instruction Rationale Inquiry Capability
Engineer B lacked or failed to exercise the capability to seek clarification of the franchiser's rationale for instructing non-disclosure before accepting the engagement — a failure the BER identified as a significant ethical shortcoming.
Before accepting the franchiser's engagement to review Engineer A's work under a confidentiality instruction, Engineer B should have inquired into the rationale for the instruction.
The BER's finding that Engineer B was troubled for taking the project without first exploring the reason why the client wanted non-disclosure, indicating this capability was required but not exercised.
we are troubled by the fact that Engineer B took this project without first exploring the reason why the client wanted Engineer B not to disclose his relationship with the client. We believe this issue should first be clarified.
Engineer B Pre-Engagement Client Motive Inquiry Constraint Instance
The franchiser instructed Engineer B not to disclose the engagement to Engineer A; Engineer B accepted the engagement without first exploring why the client wanted this confidentiality; the Board found this failure to inquire was troubling
Before accepting the franchiser's engagement subject to the instruction not to disclose the review to Engineer A, Engineer B was constrained to first inquire into and clarify the client's reason for the confidentiality instruction — Engineer B's failure to do so before proceeding constituted a failure of professional due diligence.
we are troubled by the fact that Engineer B took this project without first exploring the reason why the client wanted Engineer B not to disclose his relationship with the client.
Pre-engagement, before Engineer B accepted the franchiser's review assignment
We believe this issue should first be clarified.
Engineer B Preliminary Results Disclosure to Engineer A
Peer Review Preliminary Results Incumbent Disclosure Capability
Engineer B demonstrated the capability to disclose not merely the existence of the peer review engagement but also the substantive preliminary results of the review to Engineer A, providing Engineer A with a meaningful professional opportunity to respond to the findings.
After completing the peer review of Engineer A's pending design concerns, Engineer B disclosed both the engagement and the preliminary findings to Engineer A.
Engineer B notified Engineer A of both the relationship with the franchiser and the preliminary results of the review, going beyond mere notification of the review's existence.
Conducting the review without Engineer A's knowledge meant Engineer B lacked the benefit of Engineer A's explanations or context for technical decisions, potentially limiting the review's completeness
The review created the factual predicate for the subsequent notification decision that would put Engineer B in direct conflict with the client's confidentiality instruction
Contractual obligation to the franchiser to perform the requested design review
Professional competence obligation to conduct a thorough engineering review
Competent and thorough engineering practice
NSPE Code Section II.4: faithful agent and trustee obligations to the client
NSPE Code Section III.8.a: professional norms regarding review of another engineer's work
Fulfill the scope of his engagement by assessing pending design concerns across the franchise facilities and forming preliminary conclusions to report to the franchiser
NSPE Code Section III.8.a: proceeding with review of another engineer's work without prior notification to that engineer (though the Board ultimately found the one-week delay before notification was not unreasonable)
Evaluation of facility design concerns across multiple locations
Professional judgment in assessing another engineer's design work
One week after retention; prior to notifying Engineer A
One week after being retained and receiving the confidentiality instruction, Engineer B proceeded to review the pending design information related to several franchise facilities that had been designed by Engineer A.
Following his review of the design information, and contrary to the franchiser's explicit instruction, Engineer B notifies Engineer A of his relationship with the franchiser, the sequencing of review before notification is causally significant
Engineer B Reviews Design Information (Action 5)
Had Engineer B notified Engineer A before conducting the review, Engineer A could have raised objections, sought involvement, or escalated the conflict prior to the review being completed, preserving Engineer A's professional interests
Engineer A Informed of Successor Engagement (Event 7), but only after review completion, limiting remediation
Engineer B completing the design review before issuing notification
Engineer B's subsequent decision to notify Engineer A contrary to the franchiser's instruction
The temporal gap between review completion and notification
Engineer B (for sequencing review before notification); Franchiser (for creating conditions that incentivized delayed disclosure)
Review completion before disclosure + delayed notification = Engineer A informed only after the conflicted work product was finalized, limiting ability to contest or participate in the review
Engineer B Reviews Design Information (Action 5) → Engineer A Informed of Successor Engagement (Event 7) — but only after review completion, limiting remediation
Engineer B Successor Contract Acceptance Incumbent Expiration Prerequisite Recognition
Successor Contract Acceptance Incumbent Contract Expiration Prerequisite Recognition Capability
Engineer B recognized that accepting the successor design engineering contract from the franchiser was ethically permissible only after Engineer A's contract had fully expired, and did not accept the successor role until that expiration had occurred.
The franchiser retained Engineer B to review pending design concerns while Engineer A's contract was still active; Engineer B accepted the successor design engineering role only after Engineer A's contract expired several weeks later.
Engineer B was retained as the franchiser's design engineer only after Engineer A's agreement with the franchiser expired, consistent with the ethical requirement that successor acceptance await incumbent contract expiration.
Engineer B being retained before Engineer B's design review
Engineer B reviews the design information the following week [after being retained]
Engineer B's design review before Engineer B's notification to Engineer A
following his review, notifies Engineer A of his relationship with franchiser and the preliminary results of his review
Engineer B's notification to Engineer A before Engineer A's contract expiration
Engineer B...notifies Engineer A of his relationship with franchiser and the preliminary results of his review. Several weeks later, Engineer A's agreement with the franchiser expires
Engineer Relations Code Provision Client Need Balancing — BER Case 93-3
The Board acknowledged that engineer-relations provisions must be balanced against client needs and that the Code has evolved from formerly strict provisions; this framing governed the Board's analysis of the conflict between Section III.8.a and Section II.4
Ethics Bodies and Engineers Applying Engineer-Relations Code Provisions
Engineer Relations Code Provision Client Need Balancing Constraint
The Board's application of NSPE Code provisions governing relations among engineers in BER Case 93-3 was constrained by the requirement to balance those provisions against the franchiser client's needs and the particular facts of the case — prohibiting mechanical application of the peer review notification requirement without accounting for the countervailing faithful agent duty and the client's legitimate interest in confidentiality.
provisions regarding relations among engineers must be carefully balanced with the needs and requirements of the individual client as well as the particular facts and circumstance of the case.
Applicable to all ethics analyses involving engineer-relations Code provisions
It is not always possible to draw fine distinctions in this area, however certain general ethical principles as enunciated in the Code of Ethics provide guidance in the resolution of these issues.
Franchiser Instructs Confidentiality to Engineer B
Creating an ethically compromised situation for Engineer B regardless of which obligation he prioritized
Placing Engineer B in direct conflict between client loyalty and professional obligations under NSPE Code Section III.8.a
Potentially depriving Engineer A of the opportunity to provide context or explanations for his design decisions
Business interest in managing a sensitive personnel and vendor transition
Client's prerogative to set terms of engagement with retained engineers
Client confidentiality and business control
Control the transition narrative, prevent potential disruption or conflict between the two engineers, and protect the franchiser's business interests during the sensitive overlap period
Understanding of engineering professional norms (at least implicitly)
At the time of Engineer B's retention; prior to Engineer B's review
Fair dealing toward Engineer A as a professional whose work and reputation were being evaluated
Spirit of NSPE Code Section III.8.a, which supports Engineer A's right to know his work is under review
At the time of retaining Engineer B, the franchiser explicitly instructed Engineer B not to disclose his relationship with the franchiser to Engineer A, imposing a confidentiality condition on the engagement.
Franchiser Instructs Confidentiality to Engineer B (Action 3) → Confidentiality Instruction Imposed on Engineer B (Event 4) and Engineer A Kept Uninformed During Review (Event 5)
The franchiser's explicit instruction to Engineer B not to disclose his relationship to Engineer A became a direct cause of Engineer A being kept uninformed; as a direct consequence of the franchiser's confidentiality instruction and Engineer B's initial compliance, Engineer A remained unaware
Franchiser Instructs Confidentiality to Engineer B (Action 3)
Without the confidentiality instruction, Engineer B would have had no imposed barrier to disclosing the relationship to Engineer A; without Engineer B's compliance, the instruction alone would have been insufficient to suppress disclosure
Confidentiality Instruction Imposed on Engineer B (Event 4) and Engineer A Kept Uninformed During Review (Event 5)
Absence of any independent disclosure mechanism to inform Engineer A
Engineer B's initial compliance with that instruction
Franchiser's explicit issuance of a confidentiality instruction at the time of retention
Franchiser (primary); Engineer B (secondary for compliance)
Franchiser's confidentiality instruction + Engineer B's compliance + no alternative disclosure channel = Engineer A kept uninformed during the review period
Franchiser Peer Review Procedural Fairness Design BER Case
Peer Review Procedural Fairness Design Capability
The franchiser needed the capability to design and implement a procedurally fair peer review process — including refraining from instructing Engineer B to conduct the review covertly — but failed to exercise this capability by explicitly instructing Engineer B not to disclose the engagement to Engineer A.
The franchiser commissioned a peer review of Engineer A's work and instructed Engineer B not to disclose the engagement to Engineer A, raising procedural fairness concerns about the review process design.
The BER's finding that the franchiser's instruction to Engineer B not to disclose the review engagement to Engineer A was procedurally problematic, even though the BER ultimately found Engineer B's disclosure to be unethical given the faithful agent obligation.
Franchiser (National Franchise Engineering Services Client)
Franchiser Peer Review Procedural Fairness Design Obligation
The franchiser, as the commissioning client, bore the obligation to design and implement a procedurally fair peer review process — including ensuring Engineer A was notified and not subjected to a covert review — but failed to exercise this capability by explicitly instructing Engineer B to maintain confidentiality from Engineer A.
The franchiser commissioned Engineer B to review Engineer A's pending design concerns while Engineer A's contract was still active, and explicitly instructed Engineer B to keep the engagement confidential from Engineer A.
The franchiser's instruction to Engineer B not to disclose the engagement to Engineer A represents a failure to exercise this capability; the Board found the franchiser's instruction to be improper.
Engineer B would be reviewing Engineer A's work while Engineer A was still under contract
Potential for conflict between Engineer B's obligations to the client and professional norms regarding review of another engineer's active work
Risk of Engineer A learning of Engineer B's engagement during the active contract period
Business obligation to address pending design concerns without delay
Client's right to seek engineering services from a provider of its choosing
Faithful stewardship of franchise operations
Ensure uninterrupted engineering oversight of pending design concerns and establish Engineer B as a capable successor before Engineer A's departure
Spirit of fair dealing toward Engineer A, whose work was being reviewed without full transparency during an active contractual relationship
Engineering vendor selection and management
Before Engineer A's contract expiration; during the notice period
Before Engineer A's contract expired, the franchiser proactively retained Engineer B to review pending design concerns across multiple franchise facilities, initiating a transition overlap.
Franchiser Retains Engineer B Early (Action 2) → Parallel Engagement Overlap Created (Event 3)
As a direct result of the franchiser retaining Engineer B before Engineer A's contract expired, a period of parallel engagement overlap was created
Franchiser Retains Engineer B Early (Action 2)
Had the franchiser waited until Engineer A's contract formally expired before retaining Engineer B, no overlap period would have existed and the foundational conflict would have been avoided
Parallel Engagement Overlap Created (Event 3)
Engineer A's contract still being active at time of Engineer B's retention
Engineer B's acceptance of the engagement without requiring sequential timing
Franchiser's decision to retain Engineer B prior to Engineer A's contract expiration
Combination of early retention timing + active existing contract = structural conflict of interest overlap
Need to manage transition overlap between Engineer A and a successor engineer
Potential for ethical complications during the transition period
Business prerogative to select engineering partners
Contractual obligation to provide notice of non-renewal
Client autonomy in selecting engineering services
Transition to a new engineering firm while maintaining business continuity and legal compliance with contractual notice requirements
Several years into the relationship; prior to contract expiration
The franchiser made a deliberate business decision to end its multi-year engineering relationship with Engineer A, providing formal notice of non-renewal before the contract expired.
Franchiser Terminates Engineer A (Action 1) combined with Franchiser Retains Engineer B Early (Action 2) → Multi-Year Relationship Established (Event 1) undermined; Engineer A's professional interests structurally disadvantaged throughout transition
The franchiser made a deliberate business decision to end its multi-year engineering relationship with Engineer A; before Engineer A's contract expired, the franchiser proactively retained Engineer B, together these actions created conditions in which Engineer A's long-standing professional relationship was replaced under circumstances that denied Engineer A the ability to protect their professional interests
Franchiser Terminates Engineer A (Action 1) combined with Franchiser Retains Engineer B Early (Action 2)
Had the franchiser either delayed Engineer B's retention until after Engineer A's contract expired, or omitted the confidentiality instruction, Engineer A would have had meaningful opportunity to be informed of and respond to the transition, preserving professional dignity and the ability to contest the review process
Multi-Year Relationship Established (Event 1) undermined; Engineer A's professional interests structurally disadvantaged throughout transition
Engineer B's compliance with the confidentiality instruction during the review period
Franchiser's confidentiality instruction preventing Engineer B from disclosing the transition
Franchiser's decision to retain Engineer B before termination was complete
Franchiser's decision to terminate Engineer A
Franchiser (primary architect of the disadvantaging conditions); Engineer B (secondary, for compliance enabling the outcome)
Termination + early replacement retention + confidentiality suppression + Engineer B compliance = Engineer A's professional interests systematically disadvantaged throughout the transition without opportunity for recourse
Stable professional relationship active; Engineer A holds primary design authority for franchiser; mutual reliance established
Engineer A and the franchiser had developed a long-standing professional relationship over multiple years, creating mutual expectations of continuity and trust. This relationship forms the baseline context from which all subsequent disruptions emerge.
National Society of Professional Engineers
Engineer B in determining whether to notify Engineer A of the review and the new engagement
Primary normative authority governing Engineer B's obligations when retained to review Engineer A's work without Engineer A's knowledge, and when accepting a client relationship that displaces an incumbent engineer
NSPE Code of Ethics for Engineers, Section II.4
Code Section II.4 places the obligation upon engineers to act in professional matters for clients as 'faithful agents or trustees.'
Board of Ethical Review in analyzing Engineer B's duty to client
Establishes the obligation of engineers to act as faithful agents or trustees for their clients; used to identify the countervailing duty of loyalty and fair dealing in tension with the notification obligation
NSPE Code of Ethics for Engineers, Section III.8.a
Board of Ethical Review in analyzing Engineer B's conduct
Governs the obligation of engineers to notify a prior engineer before reviewing that engineer's work for the same client; central provision in resolving the ethical conflict in this case
NSPE Code of Ethics for Engineers, Confidentiality Provisions
Board of Ethical Review in interpreting the scope of the trustee obligation
Referenced to clarify that the term 'trustee' in Section II.4 refers to a general duty of loyalty rather than a fiduciary/confidentiality relationship, since separate provisions already address confidentiality obligations
Two engineers now simultaneously engaged with same client on related matters; Engineer A unaware; ethical conflict zone activated; NSPE successor engineer norms now directly applicable
Between Engineer B's retention and Engineer A's contract expiration
As a direct result of the franchiser retaining Engineer B before Engineer A's contract expired, a period of simultaneous engagement exists where both engineers hold roles related to the same client. This overlap creates an inherently conflicted situation where Engineer A remains the active engineer of record while Engineer B is conducting preliminary reviews.
Professional engineering community / NSPE
Professional Norms Governing Engineering Peer Review Conduct
franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns that are pending in connection with the design of several franchise facilities
Engineer B when conducting the review of franchise facility designs
Governs the procedural and ethical obligations applicable to Engineer B's review of Engineer A's pending design work, including scope of independence, fairness, and notification obligations
Professional Norms Prohibiting Review of Another Engineer's Work Without Notification
Peer Review Without Notification Standard
Engineer B when deciding whether to comply with the franchiser's instruction to keep the review relationship secret from Engineer A
Governs Engineer B's obligation not to review Engineer A's design work without Engineer A's knowledge; the franchiser's explicit instruction to withhold disclosure directly conflicts with this standard
Peer Review Notification Obligation Standard (Section III.8.a)
NSPE (codified in Section III.8.a, interpreted by BER)
Professional Standard: Engineer Notification Obligation When Reviewing Another Engineer's Work
Board of Ethical Review in evaluating Engineer B's timing of disclosure
Establishes the professional norm that a reviewing engineer must notify the original engineer within a reasonable time; applied to assess whether Engineer B's one-week delay was a violation
Peer Review Notification Timing Reasonableness — One-Week Delay Between Engineer B Engagement and Notification to Engineer A
Engineer B was engaged by the franchiser and conducted the peer review within one week, notifying Engineer A only after completing the review. The notification came after the review was complete rather than before or upon commencement, raising the question of whether this satisfied the 'reasonable time' standard.
Incumbent Engineer Knowledge Requirement Before Peer Review Constraint
Engineer B was constrained to notify Engineer A of the peer review engagement within a reasonable time — ideally before or upon commencing the review — and the one-week delay between engagement and notification, combined with the fact that notification occurred only after the review was completed, raised questions about whether the timing satisfied the reasonableness standard under NSPE Code Section III.8.a.
From the time of Engineer B's engagement through the notification of Engineer A one week later
Peer Review Program Collegial Improvement Non-Exploitation — Engineer B Successor Contract Acceptance
Engineer B was retained to conduct a peer review of Engineer A's pending design work while simultaneously being positioned as a potential successor design engineer. The peer review access to Engineer A's non-public design information created a risk of competitive exploitation in the subsequent successor engagement.
Peer Review Program Collegial Improvement Non-Exploitation Constraint
Engineer B was constrained from using the peer review engagement as a mechanism to gain competitive intelligence or insider access to Engineer A's non-public design information for the purpose of securing the successor design engineering contract from the franchiser.
NSPE Code of Ethics Sections II.4, III.8.a; professional competition ethics norms
retains Engineer B to provide immediate review of design concerns that are pending
During and following the peer review engagement
the franchiser retains Engineer B as its design engineer
Peer Review Successor Contract Incumbent Contract Expiry Prerequisite — Engineer B Successor Engagement After Engineer A Contract Expiry
The franchiser retained Engineer B for peer review while Engineer A's contract was still active. Several weeks later, after Engineer A's agreement expired, the franchiser retained Engineer B as its design engineer. The ethical constraint required Engineer B to wait for Engineer A's contract to expire before accepting the successor role.
Peer Review Successor Contract Incumbent Contract Expiry Prerequisite Constraint
Engineer B was constrained from accepting the successor design engineering contract from the franchiser until Engineer A's contract had fully expired, and the case facts indicate Engineer B did not accept the successor role until after Engineer A's agreement with the franchiser expired.
the franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns that are pending
From the time of Engineer B's peer review engagement until Engineer A's contract formally expired
Professional Norms on Conflicts Arising from Post-Review Procurement
Post-Peer-Review Procurement Conflict Standard
Engineer B and the franchiser when transitioning from review engagement to full design contract
Addresses whether Engineer B's subsequent retention as the franchiser's full design engineer — following his review of Engineer A's pending design work — creates an ethical conflict of interest given insider knowledge gained during the review
Post-Peer-Review Insider Knowledge State-Law-Variable Conflict Assessment — Engineer B Successor Design Engineering Engagement
Engineer B conducted a peer review of Engineer A's pending design work and subsequently accepted the successor design engineering role from the franchiser. The ethical analysis required Engineer B to assess whether this transition constituted a conflict of interest, particularly given access to Engineer A's non-public design information.
Post-Peer-Review Insider Knowledge State-Law-Variable Conflict Assessment Constraint
Engineer B was required to assess whether accepting the successor design engineering contract from the franchiser — following the peer review of Engineer A's design work — constituted a conflict of interest under applicable state laws, given Engineer B's access to Engineer A's non-public design information through the review.
NSPE Code of Ethics Sections II.4, III.8.a; applicable state conflict-of-interest laws
retains Engineer B to provide immediate review of design concerns that are pending in connection with the design of several franchise facilities
At the time Engineer B was offered and accepted the successor design engineering contract
Was Engineer B's act of notifying Engineer A of his relationship with franchiser consistent with the Code?
Was it ethical for Engineer B to accept the franchiser's engagement at all without first seeking clarification of the reason behind the instruction not to disclose the relationship to Engineer A, given that the confidentiality instruction itself signaled a potential conflict with peer review obligations?
Did the franchiser itself act unethically by instructing Engineer B to conceal the new engagement from Engineer A, and does the Code impose any obligation on a client not to direct engineers to violate peer review procedural fairness norms?
Should Engineer B have declined to share the preliminary results of his review with Engineer A at the time of notification, given that disclosing those results compounded the faithful agent violation by further exposing confidential client work product without authorization?
Does Engineer B's subsequent acceptance of the full design engineering contract with the franchiser — obtained in part through knowledge gained during the covert peer review — raise an independent ethical concern about exploitation of the peer review process for competitive advantage, regardless of whether the notification timing was ultimately reasonable?
Was it ethical for Engineer B to proceed with the review at that time?
Does the principle that a client's direction does not authorize an ethical violation — invoked to justify Engineer B's notification of Engineer A — conflict with the faithful agent trustee duty invoked to prohibit that same disclosure, and if so, which principle should take precedence when the two Code provisions point in opposite directions?
Does the principle of professional dignity for the incumbent engineer — which underlies the peer notification requirement — conflict with the principle of client loyalty invoked to constrain Engineer B's disclosure, and can professional dignity ever be subordinated to client confidentiality interests without undermining the foundational purpose of peer review?
Does the principle that benevolent motive does not cure an ethical violation — applied to Engineer B's well-intentioned notification — conflict with the principle of tripartite interest balancing, which might weigh Engineer A's right to know against the franchiser's confidentiality interest and find notification net-beneficial, thereby suggesting that motive and outcome together should inform the ethical assessment?
Does the principle of at-will employment symmetry — invoked to justify the franchiser's right to non-renew Engineer A's contract — conflict with the principle of reasonable timing compliance in peer review notification, in that the franchiser's use of the transition period to conduct a covert review exploits the at-will relationship to circumvent the procedural protections the notification timing requirement is designed to provide?
From a deontological perspective, did Engineer B fulfill a categorical duty to notify Engineer A prior to conducting the design review, regardless of the franchiser's confidentiality instruction, given that the Code's peer review notification obligation exists independently of client consent?
From a deontological perspective, did Engineer B violate a strict duty of faithful agency to the franchiser by overriding the client's explicit confidentiality instruction, even if Engineer B's motive was to honor a competing professional obligation to Engineer A?
From a consequentialist perspective, did Engineer B's decision to notify Engineer A after completing the review — rather than before — produce a net outcome that better served the professional community, the franchiser, and Engineer A compared to either full silence or pre-review notification?
From a virtue ethics perspective, did Engineer B demonstrate the professional integrity and collegial respect expected of a competent engineer by accepting a covert review engagement without first seeking clarification of the franchiser's reasons for the confidentiality instruction, and does the subsequent voluntary notification redeem or merely partially offset that initial failure of character?
If Engineer B had refused to accept the engagement unless the franchiser permitted prior notification to Engineer A, would the franchiser have been compelled to either grant that permission or seek a different successor engineer, and would such a refusal have represented the ethically optimal resolution of the conflict between faithful agency and peer review notification duties?
If Engineer B had notified Engineer A before conducting the design review rather than after, would that pre-review notification have satisfied the Code's peer review notification obligation and simultaneously preserved the faithful agent duty to the franchiser, or would the franchiser's confidentiality instruction have made any timing of notification equally impermissible under the faithful agent standard?
If Engineer B had disclosed the preliminary review results to Engineer A but withheld the fact of the new engagement relationship — as opposed to disclosing both — would that partial disclosure have constituted a lesser violation of the faithful agent duty while still partially honoring the spirit of the peer review notification obligation?
If Engineer A's contract with the franchiser had already expired before Engineer B conducted the review — rather than still being active — would the ethical weight of the peer review notification obligation have been diminished, and would the franchiser's confidentiality instruction have been more defensible under the faithful agent standard?
Trustee Term General Loyalty Non-Fiduciary Interpretation — BER Case 93-3
The Board was required to resolve whether 'trustee' in Section II.4 imposed a fiduciary/confidentiality duty or a general loyalty duty, in order to assess whether Engineer B's faithful agent obligation required compliance with the franchiser's non-disclosure instruction
Ethics Bodies and Engineers Interpreting NSPE Code Section II.4
Trustee Term General Loyalty Non-Fiduciary Interpretation Constraint
The term 'trustee' in NSPE Code Section II.4 must be interpreted as a general duty of loyalty and fair dealing — not as a strict fiduciary or confidential relationship — because the Code separately addresses confidentiality in Sections II.1.c, III.4, and III.4.a and b, making a fiduciary interpretation redundant; this interpretive constraint governs how the faithful agent and trustee obligation is applied in all engineer-client relationships.
NSPE Code of Ethics Sections II.4, II.1.c, III.4, III.4.a and b; Black's Law Dictionary (Fourth Edition); BER Case 93-3
Ongoing; applicable to all interpretations of NSPE Code Section II.4
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.92
Good motivation was noted as a mitigating factor in characterizing Engineer B's conduct but did not excuse the ethical violation; the violation was found based on the objective neglect of client interests, not subjective bad faith
Defeasibility edge from constraintstatement
source_field=constraintstatement; confidence=0.95
Engineer B's faithful agent duty to the franchiser was bounded by Engineer B's independent professional obligation under NSPE Code Section III.8.a to notify Engineer A of the peer review engagement, establishing that the faithful agent duty could not authorize compliance with the franchiser's confidentiality instruction to the extent it required Engineer B to violate the notification obligation.
source_field=tensionresolution; confidence=0.98
The Board identified two conflicting Code provisions — the Section III.8.a. peer notification obligation and the Section II.4 faithful agent/trustee duty — and concluded that on balance the faithful agent duty prevailed, finding Engineer B's disclosure to Engineer A ethically impermissible given the client's explicit instruction
source_field=tensionresolution; confidence=0.97
The faithful agent duty prevailed because Engineer B was not acting from personal advantage and the benefits of disclosure did not outweigh the detriments to the client on the specific facts
source_field=constraintstatement; confidence=0.9
Engineer B was constrained from reviewing Engineer A's pending design work for the franchiser without Engineer A's knowledge — the franchiser's instruction to conduct the review covertly conflicted with this constraint, creating the central ethical tension resolved by the Board in BER Case 93-3.
source_field=constraintstatement; confidence=0.91
Engineer B was prohibited from reviewing Engineer A's design work for the franchiser without Engineer A's knowledge while Engineer A's contract with the franchiser remained active and had not been formally terminated.
The Board found that on balance the faithful agent duty prevailed over the peer notification obligation in this specific context, because Engineer B was not acting from personal advantage and the benefits of disclosure did not outweigh the detriments to the client
Client loyalty prevailed over peer notification on these specific facts, with the Board noting that the benefits of disclosure did not outweigh the detriments to the client
source_field=tensionresolution; confidence=0.87
Engineer B resolved the tension by complying with the professional obligation to notify Engineer A, overriding the client's instruction; the NSPE Board found this conduct ethical
The Board found that on balance the faithful agent duty prevailed over the notification obligation on the specific facts, but affirmed the notification obligation remains a valid and important professional requirement
source_field=tensionresolution; confidence=0.93
The ethical limit on faithful agency — the professional obligation to notify the incumbent — prevailed over the client's confidentiality instruction
source_field=tensionresolution; confidence=0.88
Engineer B's professional ethics obligation to notify Engineer A overrode the client's instruction to maintain confidentiality about the engagement
source_field=tensionresolution; confidence=0.89
The Board found the one-week delay reasonable and not prejudicial to Engineer A, resolving the tension between operational realities of establishing a new engagement and the incumbent's right to timely notice
source_field=constraintstatement; confidence=0.93
Engineer B, as faithful agent and trustee of the franchiser, was constrained by the franchiser's explicit instruction not to disclose the new engagement relationship to Engineer A — creating a competing duty of loyalty that Engineer B ultimately overrode by notifying Engineer A, constituting a breach of the faithful agent duty even if motivated by professional courtesy.
source_field=tensionresolution; confidence=0.95
source_field=constraintstatement; confidence=0.82
The absence of a formal confidentiality agreement governing Engineer B's peer review of Engineer A's design work did not eliminate Engineer B's ethical obligations arising from access to Engineer A's non-public design information, including the obligation to avoid exploiting insider knowledge gained through the review in the subsequent successor design engineering engagement.
source_field=constraintstatement; confidence=0.94
Once the franchiser explicitly instructed Engineer B not to disclose Engineer B's review engagement to Engineer A, Engineer B was constrained by the faithful agent duty under Section II.4 from making that disclosure — and Engineer B's actual disclosure to Engineer A constituted a breach of this constraint, even though Engineer B was not motivated by personal advantage.
The franchiser's instruction to Engineer B to maintain confidentiality about the new engagement could not override Engineer B's professional obligation under NSPE Code Section III.8.a to notify Engineer A that a peer review of Engineer A's work was being conducted.
source_field=tensionresolution; confidence=0.96
The Board did not find this failure independently dispositive of the ethical outcome but flagged it as a procedural deficiency that should have been addressed before Engineer B accepted the engagement
source_field=constraintstatement; confidence=0.86
Engineer B was obligated to disclose the preliminary results of the peer review to Engineer A, recognizing Engineer A's professional interest in knowing the findings of a review of Engineer A's own design work, and Engineer B fulfilled this obligation by notifying Engineer A of both the engagement and the preliminary results after completing the review.
On the specific facts, the Board found the faithful agent duty prevailed, but affirmed that the dignity-grounded notification obligation remains a valid professional requirement that would govern in the absence of a competing faithful agent obligation
Because Engineer B fulfilled the notification obligation and the client independently initiated the transition, the succession was ethically permissible; the review access was not improperly exploited
franchiser's discussions with Engineer B before Engineer A's contract expiration
before the contract expires, the franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns
franchiser's discussions with Engineer B
franchiser's non-disclosure instruction to Engineer B before Engineer B's design review
Prior to the review, franchiser specifically tells Engineer B not to disclose to Engineer A, Engineer B's relationship with franchiser
franchiser's non-disclosure instruction to Engineer B
franchiser's notice of non-renewal to Engineer A before franchiser's discussions with Engineer B
After several years, the franchiser decides to terminate its relationship with Engineer A and provides Engineer A of notice of its intent not to renew its contract with Engineer A's firm. In order to maintain continuity and before the contract expires, the franchiser begins discussions with Engineer B
franchiser's notice of non-renewal to Engineer A
invokedby: Franchiser National Franchise Engineering Services Client
invokedby: Engineer A Outgoing Incumbent Design Engineer
invokedby: Engineer B Confidentiality-Directed Successor Design Engineer
The transition from Engineer A to Engineer B as the franchiser's design engineer required balancing: (1) the franchiser's interest in continuity of service and selecting its preferred engineering provider; (2) Engineer A's interest in compl
Engineer A's professional dignity was implicated by the franchiser's instruction to conduct a covert review of Engineer A's active work without Engineer A's knowledge; the professional ethics norm protecting incumbent engineers from covert
Engineer B's apparent good faith motivation in notifying Engineer A — not acting from personal advantage — did not render the disclosure ethically permissible, because the ethical evaluation turned on whether the disclosure served the clien
Engineer B's one-week delay in notifying Engineer A of the review engagement and preliminary results was found not to violate Section III.8.a., because the notification obligation requires disclosure within a reasonable period after the eng
Engineer B should have explored the client's reasons for the confidentiality instruction before accepting the engagement and acting on that instruction, so that Engineer B could make an informed judgment about whether compliance was ethical
Despite the franchiser's explicit instruction not to disclose the review engagement to Engineer A, Engineer B notified Engineer A of the engagement and the preliminary results of the review, fulfilling the professional obligation that an in
Engineer B accepted the franchiser's design engineering contract after Engineer A's contract expired; this was permissible because: (1) Engineer B had properly notified Engineer A of the review engagement and its preliminary results; (2) th
The franchiser's instruction to Engineer B not to disclose the review engagement to Engineer A constituted a client direction that, if followed, would have violated Engineer B's professional obligation to ensure the incumbent engineer had k
Engineer B served the franchiser faithfully by conducting the requested review of pending design concerns, but retained and exercised the professional authority to override the client's confidentiality instruction when it conflicted with th
Engineer B's duty as faithful agent and trustee to the client required Engineer B to follow the client's instruction not to disclose the review engagement to Engineer A, because the duty of loyalty and fair dealing obligated Engineer B to c
Section III.8.a. imposed on Engineer B an obligation to notify Engineer A that Engineer B was reviewing Engineer A's work, reflecting the purpose of giving the incumbent engineer an opportunity to submit comments and explanations for techni
The Board engaged in contextual balancing of two competing code provisions — the Section III.8.a. peer notification obligation and the Section II.4 faithful agent duty — weighing the purposes of each, the specific facts of the case, and the
The peer notification obligation under Section III.8.a. is grounded in part in the incumbent engineer's professional dignity — the right to know that one's work is under review and to have an opportunity to submit comments and explanations
Engineer B's duty of loyalty to the client required respecting the client's explicit instruction not to disclose the review engagement to Engineer A, because the client had a legitimate business interest in controlling the timing and manner
Engineer A was obligated to continue performing all contracted design services faithfully and competently for the franchiser during the wind-down period following notice of non-renewal, notwithstanding the franchiser's concurrent engagement
The franchiser, as the client commissioning a peer review of Engineer A's active work, was obligated to ensure that the review was conducted through procedurally fair means — including not instructing Engineer B to conduct the review covert
Engineer B was obligated to apply the faithful agent and trustee standard under Section II.4 as a general duty of loyalty and fair dealing toward the franchiser client — not as a strict fiduciary or confidentiality obligation — recognizing
Engineer B was obligated, upon being retained to review Engineer A's pending design work, to ensure that Engineer A had an opportunity to submit comments or explanations for technical decisions in the original design, so that Engineer B cou
Engineer B was obligated to act as a faithful agent and trustee for the franchiser client by conducting the requested review of Engineer A's pending design work in the manner most beneficial to the client — including respecting the client's
Engineer B was obligated to notify Engineer A that Engineer A's work was being subjected to an independent peer review before or upon commencing that review, recognizing that Engineer A's professional dignity and right to know that their ac
Engineer B was obligated to notify Engineer A of the peer review engagement despite the franchiser's explicit instruction to maintain confidentiality, because the client's direction to conduct a covert review of an active incumbent engineer
Once Engineer B was explicitly instructed by the franchiser client not to disclose Engineer B's review engagement to Engineer A, Engineer B was obligated to comply with that instruction as a faithful agent and trustee, and to refrain from n
The franchiser was obligated to refrain from instructing Engineer B to conduct the peer review of Engineer A's active work covertly, and to ensure that the peer review was conducted through procedurally fair means including notification of
Engineer B was obligated to recognize that the absence of personal advantage motivation in notifying Engineer A did not render that disclosure ethically permissible — and that the altruistic or collegial character of the disclosure did not
Engineer B was obligated under Section III.8.a. to notify Engineer A of the review engagement within a reasonable period of time following the establishment of the review relationship — and the Board found that Engineer B's one-week delay i
Before accepting the franchiser's engagement and acting on the client's instruction not to disclose the review to Engineer A, Engineer B was obligated to explore and clarify the client's reasons for that confidentiality instruction, so that
Engineer B was obligated to disclose the preliminary results of the peer review to Engineer A, recognizing that Engineer A had a professional interest in understanding the findings of an independent evaluation of their active work product.
Engineer B was obligated to refrain from accepting the successor design engineering contract from the franchiser until Engineer A's contract had fully expired, and was ethically permitted to accept the successor contract after that expirati
Engineer B was obligated to resist the franchiser's instruction to conduct the peer review of Engineer A's work covertly, recognizing that compliance with the confidentiality instruction would have required Engineer B to facilitate an ethic
Engineer B was obligated to serve the franchiser faithfully by conducting a competent peer review while simultaneously recognizing that faithful agent loyalty did not extend to suppressing Engineer A's right to know that their active work w
Client Confidentiality Instruction Peer Review Notification Non-Override — Franchiser Instruction to Engineer B
The franchiser, seeking to maintain continuity while transitioning away from Engineer A, instructed Engineer B to keep the new engagement confidential. This instruction conflicted with Engineer B's professional obligation to notify Engineer A of the peer review.
Client Confidentiality Instruction Peer Review Notification Non-Override Constraint
At the time the franchiser issued the confidentiality instruction to Engineer B
Nevertheless, Engineer B reviews the design information the following week and following his review, notifies Engineer A
Engineer B Faithful Agent Client Non-Disclosure Instruction Compliance Constraint Instance
The franchiser explicitly instructed Engineer B not to tell Engineer A about Engineer B's new engagement; Engineer B nonetheless notified Engineer A; the Board found this notification constituted a breach of the faithful agent duty despite Engineer B's non-self-interested motivation
Faithful Agent Client Instruction Non-Disclosure Constraint
From the moment the franchiser issued the non-disclosure instruction through the conclusion of the review engagement
we are persuaded that Engineer B acted unethically in notifying Engineer A of Engineer B's relationship with the client.
Faithful Agent Client Instruction Non-Disclosure — Engineer B Obligation to Follow Franchiser Confidentiality Instruction
The franchiser explicitly instructed Engineer B not to disclose the new engagement to Engineer A. Engineer B nonetheless notified Engineer A after completing the review. The BER analysis recognized this as a breach of faithful agent duty, mitigated by the non-self-interested nature of Engineer B's disclosure.
NSPE Code of Ethics Section II.4; Black's Law Dictionary (Fourth Edition) definition of trustee; BER Case 93-3
From the time of Engineer B's engagement through the period of the peer review
Nevertheless, Engineer B reviews the design information the following week and following his review, notifies Engineer A of his relationship with franchiser
Incumbent Engineer Active Contract Covert Review Prohibition — Engineer B Review of Engineer A Under Active Contract
The franchiser retained Engineer B to review pending design concerns while Engineer A's contract was still active (non-renewal notice had been given but contract had not yet expired). The franchiser instructed Engineer B to keep the engagement confidential from Engineer A.
Incumbent Engineer Active Contract Covert Review Prohibition Constraint
During the period between Engineer B's engagement and Engineer A's contract expiration
Incumbent Engineer Knowledge Requirement — Engineer A Engineer B Franchiser Review
Engineer B was retained to review Engineer A's active design work while Engineer A's contract with the franchiser had not been terminated; the franchiser instructed Engineer B not to notify Engineer A; the Board found that Section III.8.a required notification despite the client instruction
From the commencement of Engineer B's review engagement through notification of Engineer A
the purpose of Section 12(a) (now Section III.8.a.) is to provide the engineer whose work is being reviewed by another engineer an opportunity to submit...comments or explanations for...technical decisions
No-Confidentiality-Agreement Peer Review Ethical Obligation Persistence — Engineer B Post-Review Successor Engagement
Engineer B conducted a peer review of Engineer A's pending design work without any formal confidentiality agreement protecting Engineer A's design decisions. Engineer B subsequently accepted the successor design engineering role. The absence of a confidentiality agreement did not permit Engineer B to exploit insider knowledge from the review.
No-Confidentiality-Agreement Peer Review Ethical Obligation Persistence Constraint
NSPE Code of Ethics Sections II.4, III.8.a; No-Confidentiality-Agreement Peer Review Ethical Obligation Persistence Constraint
Throughout and following the peer review engagement, including during the successor design engineering engagement
Peer Review Preliminary Results Incumbent Disclosure — Engineer B Disclosure to Engineer A
After completing the peer review of Engineer A's pending design work, Engineer B notified Engineer A of both the review engagement and the preliminary results, despite the franchiser's instruction to maintain confidentiality.
Peer Review Preliminary Results Incumbent Disclosure Constraint
NSPE Code of Ethics Section III.8.a; professional courtesy norms
Following completion of the peer review and before finalization of the review report
At-Will Employment Symmetry Invoked For Franchiser Non-Renewal of Engineer A Contract
Franchiser's decision not to renew Engineer A's contract and to retain Engineer B as successor
Tripartite Interest Balancing in Engineer Departure Scenarios
The franchiser's decision not to renew Engineer A's contract, and to transition to Engineer B as successor design engineer, was a legitimate exercise of the client's right to select the engineering services provider of its choice; this decision, while disruptive to Engineer A, did not in itself constitute an ethical violation
Clients have the right to change engineering service providers; the ethical obligations that arise from this transition concern the manner of transition (notification, confidentiality, review conduct) rather than the transition decision itself
Franchiser National Franchise Engineering Services Client
At-Will Employment Symmetry and Engineer Mobility Right
After several years, the franchiser decides to terminate its relationship with Engineer A and provides Engineer A of notice of its intent not to renew its contract with Engineer A's firm.
The franchiser's non-renewal decision was ethically permissible; the ethical issues arose from how the transition was managed, specifically the instruction to conceal the review from Engineer A
After several years, the franchiser decides to terminate its relationship with Engineer A and provides Engineer A of notice of its intent not to renew its contract with Engineer A's firm
Client Loyalty Invoked By Franchiser Toward Engineer B Confidentiality Instruction
Franchiser's instruction to Engineer B not to disclose the review engagement to Engineer A
Client Direction Does Not Authorize Ethical Violation
Incumbent Engineer Knowledge Requirement in Peer Review
The franchiser's instruction to Engineer B to maintain confidentiality about the review engagement invoked the client loyalty dimension of the engineer-client relationship; Engineer B was expected to serve the franchiser's business interests in managing the transition discreetly, but this expectation was bounded by Engineer B's professional ethics obligations
Client loyalty obligates engineers to respect legitimate client business interests, including transition management preferences; however, this loyalty does not extend to suppressing professional ethics obligations such as incumbent notification
Engineer B's client loyalty obligation yielded to the professional ethics obligation to notify Engineer A; the client's confidentiality instruction was not a legitimate exercise of the client loyalty relationship
Client Transition Overlap — Franchiser Dual Engineer Engagement
From franchiser's retention of Engineer B for immediate design review through expiration of Engineer A's contract
the franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns that are pending in connection with the design of several franchise facilities throughout the US
Client Transition Overlap Engagement State
Franchiser's simultaneous contractual relationships with Engineer A (expiring) and Engineer B (newly retained)
Expiration of Engineer A's agreement and formal retention of Engineer B as design engineer
Franchiser retains Engineer B for substantive design review while Engineer A's contract remains active
Engineer A Incumbent Active Contract State
From franchiser's notice of non-renewal through the date Engineer A's agreement expires
Incumbent Engineer Under Active Contract State
Engineer A's contractual relationship with the franchiser
Franchiser provides Engineer A notice of intent not to renew, while simultaneously initiating engagement with Engineer B
Engineer B Failure to Explore Client Motive Pre-Engagement
From Engineer B's acceptance of the engagement through the ethics board's review
we are troubled by the fact that Engineer B took this project without first exploring the reason why the client wanted Engineer B not to disclose his relationship with the client
Client Confidentiality Motive Unexplored Pre-Engagement State
Engineer B's acceptance of the engagement without inquiring into the client's reason for the confidentiality instruction
Ethics board finding that Engineer B should have first clarified the client's motive
We believe this issue should first be clarified
Client's instruction not to disclose the engagement to Engineer A, accepted by Engineer B without inquiry
Engineer B Non-Self-Interested Faithful Agent Violation
From Engineer B's disclosure to Engineer A through the ethics board's determination
Engineer B did not appear to be motivated by personal advantage in informing Engineer A of his relationship with client
Non-Self-Interested Code Violation Mitigating Context State
Engineer B's disclosure to Engineer A, motivated by professional courtesy rather than personal advantage, but still constituting a breach of faithful agent duty
Ethics board finding that non-self-interested motive did not excuse the violation
We surmise that Engineer B's disclosure of his relationship with client constitutes a neglect of the interests of his client
on balance that the benefits to be derived by Engineer B's disclosure for all parties involved did not outweigh detriments that may be suffered by the client
Engineer B's decision to notify Engineer A despite client instruction, without self-interested motive
Faithful Agent Duty Peer Review Collegial Obligation Boundary — Engineer B Notification of Engineer A Despite Franchiser Instruction
Engineer B faced competing duties: the faithful agent duty to follow the franchiser's confidentiality instruction, and the professional obligation to notify Engineer A of the peer review. Engineer B ultimately prioritized the notification obligation, which the BER analysis assessed as the professionally correct outcome despite constituting a breach of the faithful agent duty.
Faithful Agent Duty Peer Review Collegial Obligation Boundary Constraint
NSPE Code of Ethics Sections II.4, III.8.a; BER Case 79-7; BER Case 93-3
From the time of Engineer B's engagement through the notification of Engineer A
Nevertheless, Engineer B reviews the design information the following week and following his review, notifies Engineer A of his relationship with franchiser and the preliminary results of his review
Franchiser Covert Review Instruction to Engineer B
From the moment franchiser instructs Engineer B not to disclose, until Engineer B voluntarily notifies Engineer A
Franchiser's instruction to Engineer B to conceal the new engagement from Engineer A
Engineer B's voluntary notification to Engineer A of his relationship with the franchiser and preliminary review results
Franchiser explicitly instructs Engineer B not to disclose his relationship with the franchiser to Engineer A prior to the design review
Incumbent Engineer Under Active Review Without Knowledge
From Engineer B's engagement through Engineer B's notification to Engineer A
Section III.8.a. admonishes engineers against reviewing the work of another engineer for the same client except with expressed knowledge of the engineer or unless the original relationship between the first engineer and the client has been terminated
Engineer A's status as the engineer whose prior work is under review by Engineer B, without Engineer A's initial knowledge
Engineer B's notification to Engineer A of the reviewing engagement
Client's retention of Engineer B to review Engineer A's work while Engineer A's relationship with the client had not been formally terminated
One-Week Notification Delay Reasonableness Assessment
The one-week period between Engineer B's engagement and notification to Engineer A
Engineer B's delay in informing Engineer A of his relationship with client and the preliminary results of his review was not a violation of Section III.8.a
Notification Timing Reasonableness Assessment State
The one-week delay between Engineer B's engagement and notification to Engineer A, assessed for compliance with Section III.8.a
Ethics board determination that the one-week delay was reasonable and non-prejudicial
We interpret Section III.8.a. to require disclosure within a reasonable period of time following the establishment of the relationship and the review
the one week delay is not unreasonable and consistent with Section III.8.a
Engineer B's delayed notification to Engineer A following establishment of the reviewing relationship
Peer Review Confidentiality Agreement Absent — Engineer A Design Review
Throughout Engineer B's review of Engineer A's design information
Peer Review Confidentiality Agreement Absent State
Engineer B's review of Engineer A's design work without any confidentiality agreement protecting Engineer A's design decisions
Completion of Engineer B's review and notification to Engineer A
Franchiser retains Engineer B to review pending design concerns without establishing a confidentiality agreement protecting Engineer A's proprietary design information
Benevolent Motive Does Not Cure Ethical Violation Applied to Engineer B
Engineer B's decision to notify Engineer A despite client instruction to the contrary
Faithful Agent Obligation Within Ethical Limits
Engineer B's apparent good faith motivation in notifying Engineer A — not acting from personal advantage — did not render the disclosure ethically permissible, because the ethical evaluation turned on whether the disclosure served the client's interests, not on the purity of Engineer B's intentions
The Board explicitly noted that Engineer B did not appear motivated by personal advantage, yet still found the disclosure unethical — confirming that benevolent or non-self-interested motivation does not cure a violation of the faithful agent duty
Benevolent Motive Does Not Cure Ethical Violation
A review of the facts in this case makes clear that Engineer B did not appear to be motivated by personal advantage in informing Engineer A of his relationship with client. We surmise that Engineer B's disclosure of his relationship with client constitutes a neglect of the interests of his client.
we surmise that Engineer B's disclosure of his relationship with client constitutes a neglect of the interests of his client and we believe that on balance that the benefits to be derived by Engineer B's disclosure for all parties involved did not outweigh detriments that may be suffered by the client.
Client Loyalty Invoked to Constrain Engineer B Disclosure
Engineer B's compliance obligation with client's confidentiality instruction regarding Engineer A
Engineer B's duty of loyalty to the client required respecting the client's explicit instruction not to disclose the review engagement to Engineer A, because the client had a legitimate business interest in controlling the timing and manner of communication about the transition from Engineer A to Engineer B
Client loyalty in this context required Engineer B to subordinate the peer notification obligation to the client's instruction, given that the client's instruction reflected a legitimate business purpose and Engineer B was not acting from personal advantage in disclosing
we surmise that Engineer B's disclosure of his relationship with client constitutes a neglect of the interests of his client and we believe that on balance that the benefits to be derived by Engineer B's disclosure for all parties involved did not outweigh detriments that may be suffered by the client
Engineer A Incumbent Faithful Performance During Contract Wind-Down
Engineer A received notice of non-renewal of the contract; the franchiser simultaneously retained Engineer B to review pending design concerns; Engineer A's contract continued until expiration several weeks after Engineer B's review.
Incumbent Engineer Faithful Performance Under Contested Contract Obligation
Engineer A was obligated to continue performing all contracted design services faithfully and competently for the franchiser during the wind-down period following notice of non-renewal, notwithstanding the franchiser's concurrent engagement of Engineer B to review Engineer A's pending design work.
From receipt of non-renewal notice through the expiration of Engineer A's contract
Engineer A Outgoing Incumbent Design Engineer
{'license': 'Professional Engineer (implied)', 'tenure': 'Several years with franchiser', 'contract_status': 'Non-renewal notice received; contract expires at end of term', 'specialty': 'Franchise facility design, multi-jurisdiction'}
Provided engineering design services to the franchiser for several years under a long-term contract; received notice of non-renewal; had pending design concerns under active review at the time of contract wind-down; was the subject of a confidential successor review by Engineer B, who ultimately notified Engineer A of the review despite client instruction to the contrary.
{'type': 'client', 'target': 'Franchiser'}
{'type': 'peer', 'target': 'Engineer B Confidentiality-Directed Successor Design Engineer'}
Engineer A is retained by a major franchiser to provide engineering design services
Engineer A's agreement with the franchiser expires
franchiser decides to terminate its relationship with Engineer A
Franchiser Client Peer Review Procedural Fairness Client Instruction Non-Override BER Case
The franchiser explicitly instructed Engineer B not to disclose the review engagement to Engineer A; the Board found this instruction placed Engineer B in a conflict between the faithful agent duty and the Section III.8.a. collegial notification duty, and noted that Engineer B should have explored the client's reasons for the instruction before accepting
Peer Review Procedural Fairness Client Obligation
The franchiser, as the client commissioning a peer review of Engineer A's active work, was obligated to ensure that the review was conducted through procedurally fair means — including not instructing Engineer B to conduct the review covertly without Engineer A's knowledge — recognizing that such instructions placed Engineer B in an ethical conflict and undermined the procedural fairness owed to Engineer A as the incumbent engineer.
At the time the franchiser retained Engineer B and issued the confidentiality instruction
Franchiser Peer Review Procedural Fairness Non-Compliance Covert Instruction
The franchiser explicitly instructed Engineer B not to disclose the review engagement to Engineer A, thereby directing Engineer B to conduct a covert review of an active incumbent engineer's work — a violation of the franchiser's own obligation to ensure procedurally fair peer review.
The franchiser was obligated to refrain from instructing Engineer B to conduct the peer review of Engineer A's active work covertly, and to ensure that the peer review was conducted through procedurally fair means including notification of Engineer A before the review commenced.
Prior to retaining Engineer B and issuing confidentiality instructions
Pre-Engagement Client Instruction Clarification Obligation Applied to Engineer B
Engineer B's acceptance of the engagement and the client's instruction not to disclose the review to Engineer A
Engineer B should have explored the client's reasons for the confidentiality instruction before accepting the engagement and acting on that instruction, so that Engineer B could make an informed judgment about whether compliance was ethically permissible
The Board's concern that Engineer B proceeded without clarifying the client's reasons reflects a procedural due diligence obligation: engineers must understand the basis for unusual client instructions before accepting them, particularly when those instructions appear to conflict with normal professional obligations
Pre-Engagement Client Instruction Clarification Obligation
Professional Dignity of Incumbent Engineer Underlying Peer Notification Purpose
Engineer A's right to know that Engineer B was reviewing Engineer A's pending design work
The peer notification obligation under Section III.8.a. is grounded in part in the incumbent engineer's professional dignity — the right to know that one's work is under review and to have an opportunity to submit comments and explanations for technical decisions before the reviewing engineer forms conclusions
Professional dignity requires that an engineer whose work is under review be given the opportunity to participate in the review process by explaining technical decisions, not merely as a procedural courtesy but as a recognition of the engineer's professional standing and the integrity of the review process
Reasonable Timing Compliance in Peer Review Notification Applied to Engineer B One-Week Delay
Engineer B's one-week delay before notifying Engineer A of the review engagement
Engineer B's one-week delay in notifying Engineer A of the review engagement and preliminary results was found not to violate Section III.8.a., because the notification obligation requires disclosure within a reasonable period after the engagement is established, and no prejudice to Engineer A's rights was found from the short delay
Reasonableness of timing is assessed by whether the incumbent's professional rights were prejudiced by the delay, not by whether the notification was instantaneous — a short operational delay is permissible provided the incumbent can still meaningfully respond
Reasonable Timing Compliance in Peer Review Incumbent Notification
We interpret Section III.8.a. to require disclosure within a reasonable period of time following the establishment of the relationship and the review. We find nothing to suggest that Engineer A's rights were prejudiced by the short delay. In view of all of the facts and circumstances involved in this case, we believe the one week delay is not unreasonable and consistent with Section III.8.a.
Engineer B's delay in informing Engineer A of his relationship with client and the preliminary results of his review was not a violation of Section III.8.a.
Engineer B Altruistic Disclosure Non-Justification for Client Interest Neglect BER Case
The Board found that Engineer B did not appear to be motivated by personal advantage in informing Engineer A, but nonetheless concluded that the disclosure constituted a neglect of the client's interests and that the benefits of disclosure did not outweigh the detriments to the client
Altruistic Disclosure Non-Justification for Client Interest Neglect Obligation
Engineer B was obligated to recognize that the absence of personal advantage motivation in notifying Engineer A did not render that disclosure ethically permissible — and that the altruistic or collegial character of the disclosure did not cure the neglect of the franchiser client's interests caused by the unauthorized notification.
At the time Engineer B decided to notify Engineer A despite client instruction
we surmise that Engineer B's disclosure of his relationship with client constitutes a neglect of the interests of his client
Engineer B Peer Review Incumbent Notification Reasonable Timing Compliance BER Case
Engineer B delayed approximately one week before notifying Engineer A of the review engagement and preliminary results; the Board interpreted Section III.8.a. as requiring disclosure within a reasonable period of time, not instantaneous disclosure, and found the one-week delay consistent with that standard
Peer Review Incumbent Notification Reasonable Timing Compliance Obligation
Engineer B was obligated under Section III.8.a. to notify Engineer A of the review engagement within a reasonable period of time following the establishment of the review relationship — and the Board found that Engineer B's one-week delay in informing Engineer A of the engagement and preliminary results was not unreasonable and did not prejudice Engineer A's rights, and therefore did not constitute a violation of Section III.8.a.
From establishment of the review relationship to notification of Engineer A
the one week delay is not unreasonable and consistent with Section III.8.a.
Engineer B Pre-Engagement Client Instruction Rationale Clarification BER Case
The Board found that Engineer B took the project without first exploring why the client wanted Engineer B not to disclose the relationship with the client, and stated that this issue should first have been clarified — indicating a pre-acceptance diligence obligation
Pre-Engagement Client Instruction Rationale Clarification Obligation
Before accepting the franchiser's engagement and acting on the client's instruction not to disclose the review to Engineer A, Engineer B was obligated to explore and clarify the client's reasons for that confidentiality instruction, so that Engineer B could make an informed professional judgment about whether the instruction could be ethically followed and whether modified engagement terms were needed.
Before accepting the review engagement from the franchiser
Engineer B Preliminary Review Results Disclosure to Engineer A
After completing the review of Engineer A's pending design concerns, Engineer B notified Engineer A of both the engagement and the preliminary results of the review.
Peer Review Preliminary Results Disclosure to Reviewed Engineer Obligation
Following completion of the peer review, before or concurrent with reporting to the franchiser
Engineer B Successor Contract Acceptance After Engineer A Contract Expiration
Engineer B conducted the peer review while Engineer A's contract was still active; Engineer B accepted the successor design engineering contract only after Engineer A's agreement with the franchiser expired several weeks later.
Successor Engineer Post-Review Expired-Contract Acceptance Permissibility Obligation
Engineer B was obligated to refrain from accepting the successor design engineering contract from the franchiser until Engineer A's contract had fully expired, and was ethically permitted to accept the successor contract after that expiration given that Engineer B had fulfilled all collegial notification duties during the review phase.
From the time of review engagement through the expiration of Engineer A's contract
the franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns that are pending in connection with the design of several franchise facilities
{'entity_type': 'Major commercial franchiser', 'geographic_scope': 'United States (national)', 'procurement_action': 'Directed successor engineer to maintain confidentiality from incumbent — ethically problematic instruction'}
Major national franchiser that retained Engineer A for multi-year design services, elected not to renew the contract, and during the wind-down period retained Engineer B to review pending design concerns while directing Engineer B to conceal the engagement from Engineer A; ultimately transitioned full design services to Engineer B.
{'type': 'client_of', 'target': 'Engineer A Outgoing Incumbent Design Engineer'}
{'type': 'client_of', 'target': 'Engineer B Confidentiality-Directed Successor Design Engineer'}
National Franchise Engineering Services Client
Engineer A is retained by a major franchiser to provide engineering design services for a chain of stores throughout the United States
franchiser retains Engineer B as its design engineer
Incumbent Engineer Knowledge Requirement Invoked as Competing Obligation
Engineer B's review of Engineer A's pending design work while Engineer A's contract was still active
Section III.8.a. imposed on Engineer B an obligation to notify Engineer A that Engineer B was reviewing Engineer A's work, reflecting the purpose of giving the incumbent engineer an opportunity to submit comments and explanations for technical decisions so the reviewing engineer has a fuller understanding of the original design
The notification obligation exists to serve the incumbent engineer's professional dignity and to enable better-informed review, not merely as a procedural formality — but in this case it was found to be overridden by the faithful agent duty when the client had a legitimate reason for confidentiality
The Board found the faithful agent duty prevailed over the notification obligation on the specific facts, but affirmed the notification obligation remains a valid and important professional requirement
the purpose of Section 12(a) (now Section III.8.a.) is to provide the engineer whose work is being reviewed by another engineer an opportunity to submit...comments or explanations for...technical decisions, thereby enabling the reviewing engineer to have the benefit of a fuller understanding of the technical considerations in the original design
Tripartite Interest Balancing Invoked In Engineer A to Engineer B Transition
The overall transition from Engineer A to Engineer B as the franchiser's design engineer
The transition from Engineer A to Engineer B as the franchiser's design engineer required balancing: (1) the franchiser's interest in continuity of service and selecting its preferred engineering provider; (2) Engineer A's interest in completing its contractual obligations and protecting its professional standing; and (3) Engineer B's interest in accepting legitimate new client engagements
No single party's interest automatically overrides the others; the ethical resolution required Engineer B to notify Engineer A (protecting Engineer A's interest), the franchiser to provide advance notice of non-renewal (protecting Engineer A's interest), and Engineer B to conduct the review and succession in a professionally appropriate manner
Engineer B Confidentiality-Directed Successor Design Engineer
After several years, the franchiser decides to terminate its relationship with Engineer A and provides Engineer A of notice of its intent not to renew its contract with Engineer A's firm. In order to maintain continuity and before the contract expires, the franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns.
The tripartite balance was achieved through: franchiser providing advance notice to Engineer A; Engineer B notifying Engineer A of the review; and Engineer B accepting the successor contract only after Engineer A's contract expired
Client Direction Does Not Authorize Ethical Violation Invoked Against Franchiser Confidentiality Instruction
Franchiser's instruction to conceal review engagement from Engineer A
The franchiser's instruction to Engineer B not to disclose the review engagement to Engineer A constituted a client direction that, if followed, would have violated Engineer B's professional obligation to ensure the incumbent engineer had knowledge of the review; Engineer B correctly declined to follow this instruction
Client instructions that require an engineer to violate professional ethics obligations — here, the obligation to notify the incumbent engineer of a review — do not bind the engineer; the engineer retains independent professional authority to act in accordance with ethics obligations
Prior to the review, franchiser specifically tells Engineer B not to disclose to Engineer A, Engineer B's relationship with franchiser. Nevertheless, Engineer B reviews the design information the following week and following his review, notifies Engineer A of his relationship with franchiser and the preliminary results of his review.
Competing Code Provision Balancing Applied to Peer Notification vs. Faithful Agent Duty
Resolution of the conflict between Engineer B's peer notification obligation and faithful agent duty to client
The Board engaged in contextual balancing of two competing code provisions — the Section III.8.a. peer notification obligation and the Section II.4 faithful agent duty — weighing the purposes of each, the specific facts of the case, and the relative benefits and detriments to all parties, ultimately concluding that the faithful agent duty prevailed on these specific facts
The balancing process required the Board to interpret the meaning of 'trustee,' assess whether Engineer B's motivation was personal advantage, and weigh the benefits of disclosure against the detriments to the client — demonstrating that competing provisions must be resolved through purposive contextual analysis
Competing Code Provision Contextual Balancing Obligation
The facts in this case present the Board with two conflicting provisions of the Code of Ethics: (1) the obligation of the engineer to provide appropriate notice to another engineer in connection with his reviewing the work of that engineer, and (2) the general duty of the engineer as 'faithful agent and trustee.' In light of the facts and consistent with BER Case 79-7, we are persuaded that Engineer B acted unethically in notifying Engineer A of Engineer B's relationship with the client.
Faithful Agent Trustee Duty Invoked Against Engineer B Disclosure
Engineer B's decision to notify Engineer A of the review engagement against client instruction
Engineer B's duty as faithful agent and trustee to the client required Engineer B to follow the client's instruction not to disclose the review engagement to Engineer A, because the duty of loyalty and fair dealing obligated Engineer B to carry out the transaction in the manner most beneficial to the client and not in a way motivated by personal advantage
In this context, the faithful agent duty is interpreted as a general duty of loyalty and fair dealing — not strict fiduciary confidentiality — that required Engineer B to respect the client's confidentiality instruction absent a higher-order professional obligation overriding it
we are persuaded that Engineer B acted unethically in notifying Engineer A of Engineer B's relationship with the client. Engineer B had an obligation not to notify Engineer A once Engineer B was told by client not to tell Engineer A about Engineer B's relationship with the client.
we interpret the term 'trustee' to refer to the more general duty of loyalty and fair dealing
Successor Engineer Post-Review Contract Acceptance Permissibility Invoked By Engineer B
Engineer B's acceptance of the franchiser's design engineering contract after Engineer A's contract expiration
Engineer B accepted the franchiser's design engineering contract after Engineer A's contract expired; this was permissible because: (1) Engineer B had properly notified Engineer A of the review engagement and its preliminary results; (2) the franchiser had independently decided not to renew Engineer A's contract before retaining Engineer B; and (3) there is no indication Engineer B exploited the review access to improperly solicit the successor role
The review-to-succession transition was ethically permissible because proper notification was given and the client's decision to transition was independently motivated; the key ethical safeguard — incumbent notification — was satisfied
Successor Engineer Post-Review Contract Acceptance Permissibility Principle
Client Covert Review Instruction to Engineer B
From the moment client retained Engineer B through Engineer B's decision to notify Engineer A
Engineer B had an obligation not to notify Engineer A once Engineer B was told by client not to tell Engineer A about Engineer B's relationship with the client
Client's instruction to Engineer B not to notify Engineer A of the new engagement or review
Engineer B's unilateral decision to notify Engineer A despite client instruction
Client's explicit instruction to Engineer B to keep the new engagement confidential from Engineer A
Faithful Agent Obligation Within Ethical Limits Invoked By Engineer B Toward Franchiser
Engineer B's conduct in reviewing design concerns while managing the client's confidentiality instruction
Engineer B served the franchiser faithfully by conducting the requested review of pending design concerns, but retained and exercised the professional authority to override the client's confidentiality instruction when it conflicted with the professional obligation to notify Engineer A — demonstrating that faithful agency does not require blind compliance with client instructions that violate professional ethics
Engineer B's faithful agent role required diligent execution of the review assignment but did not require suppression of the incumbent engineer notification obligation; the 'within ethical limits' qualifier is operative here
the franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns that are pending in connection with the design of several franchise facilities throughout the US. Prior to the review, franchiser specifically tells Engineer B not to disclose to Engineer A, Engineer B's relationship with franchiser.
the franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns
Professional Dignity Invoked For Engineer A As Incumbent Subject To Covert Review
Franchiser's instruction to Engineer B to conceal the review engagement from Engineer A
Engineer A's professional dignity was implicated by the franchiser's instruction to conduct a covert review of Engineer A's active work without Engineer A's knowledge; the professional ethics norm protecting incumbent engineers from covert competitive review is grounded in this dignity interest
An incumbent engineer whose active work is reviewed without their knowledge suffers a professional dignity harm; the obligation to notify the incumbent is partly grounded in respect for the incumbent's professional standing
franchiser specifically tells Engineer B not to disclose to Engineer A, Engineer B's relationship with franchiser. Nevertheless, Engineer B reviews the design information the following week and following his review, notifies Engineer A of his relationship with franchiser and the preliminary results of his review.
Engineer B's notification of Engineer A vindicated Engineer A's professional dignity interest against the client's confidentiality instruction
Engineer B Covert Review Client Instruction Resistance
Franchiser instructed Engineer B to keep the review engagement confidential from Engineer A; Engineer B ultimately notified Engineer A, demonstrating resistance to the covert review instruction.
Covert Peer Review Client Instruction Resistance Obligation
Engineer B was obligated to resist the franchiser's instruction to conduct the peer review of Engineer A's work covertly, recognizing that compliance with the confidentiality instruction would have required Engineer B to facilitate an ethical violation against Engineer A's professional dignity and collegial rights.
Upon receiving the franchiser's confidentiality instruction, before commencing the review
Engineer B Faithful Agent Peer Review Collegial Boundary Exercise
Engineer B conducted the requested review for the franchiser (fulfilling the faithful agent role) and then notified Engineer A of the engagement and preliminary results (fulfilling the collegial duty), demonstrating that the faithful agent obligation operates within the outer boundary set by professional ethics.
Faithful Agent Peer-Review Collegial Duty Boundary Obligation
Engineer B was obligated to serve the franchiser faithfully by conducting a competent peer review while simultaneously recognizing that faithful agent loyalty did not extend to suppressing Engineer A's right to know that their active work was under independent evaluation, and to exercise independent professional judgment to fulfill the collegial notification duty despite the client's confidentiality instruction.
Throughout the review engagement — from retention through completion and notification
Engineer B Faithful Agent Trustee General Loyalty Non-Fiduciary Interpretation BER Case
The Board interpreted the term 'trustee' in Section II.4 as expressing a general duty of loyalty and fair dealing rather than a strict fiduciary/confidentiality relationship, based on the Code's separate and specific confidentiality provisions, and applied this interpretation to conclude that Engineer B's unauthorized disclosure to Engineer A neglected the client's interests
Faithful Agent Trustee General Loyalty Non-Fiduciary Interpretation Compliance Obligation
Engineer B was obligated to apply the faithful agent and trustee standard under Section II.4 as a general duty of loyalty and fair dealing toward the franchiser client — not as a strict fiduciary or confidentiality obligation — recognizing that the Code separately addresses confidentiality in Sections II.1.c., III.4., III.4.a., and III.4.b., and that the trustee duty required carrying out the client's transaction in the manner most beneficial to the client without allowing personal advantage to distort that service.
Throughout Engineer B's engagement with the franchiser client
in view of the fact that drafters of the Code included separate provisions specifically addressing the obligations of engineers to not disclose confidential information...we interpret the term 'trustee' to refer to the more general duty of loyalty and fair dealing
Engineer B Reviewed Engineer Technical Comment Opportunity Preservation BER Case
Engineer B was retained by the franchiser to review Engineer A's pending design work while Engineer A's contract was still active; the Board cited BER Case 79-7 to articulate that the purpose of the notification requirement is to give the reviewed engineer an opportunity to explain technical decisions
Reviewed Engineer Technical Comment Opportunity Preservation Obligation
Engineer B was obligated, upon being retained to review Engineer A's pending design work, to ensure that Engineer A had an opportunity to submit comments or explanations for technical decisions in the original design, so that Engineer B could have the benefit of a fuller understanding of the technical considerations before framing conclusions for the client — this being the substantive purpose of Section III.8.a.
the purpose of Section 12(a) (now Section III.8.a.) is to provide the engineer whose work is being reviewed by another engineer an opportunity to submit...comments or explanations for...technical decisions, thereby enabling the reviewing engineer to have the benefit of a fuller understanding of the technical considerations in the original design in framing comments or suggestions for the benefit of the client
Upon commencement of the peer review of Engineer A's active work
Incumbent Engineer Knowledge Requirement Invoked By Engineer B Against Client Instruction
Engineer B's review of Engineer A's pending design concerns for franchise facilities
Despite the franchiser's explicit instruction not to disclose the review engagement to Engineer A, Engineer B notified Engineer A of the engagement and the preliminary results of the review, fulfilling the professional obligation that an incumbent engineer must have knowledge of a review of their active work
The incumbent engineer's right to know their work is under review is a professional dignity and collegial ethics obligation that survives client instructions to the contrary; Engineer B correctly prioritized this professional obligation over the client's confidentiality instruction
Engineer B Faithful Agent Peer-Notification-Conflicted Reviewing Engineer
{'license': 'Professional Engineer', 'obligation_conflict': 'NSPE II.4 (faithful agent/trustee) vs. NSPE III.8.a (peer notification)', 'ethical_finding': "Acted unethically by disclosing relationship to Engineer A against client instruction; should have first explored client's reasons for confidentiality"}
Retained by client to review Engineer A's work; instructed by client not to disclose the engagement to Engineer A; ultimately did notify Engineer A of the relationship and preliminary review results after approximately one week; found to have acted unethically by notifying Engineer A in violation of the faithful agent duty, but the one-week delay before notification was found not to violate Section III.8.a.
{'type': 'peer', 'target': 'Engineer A Original Design Engineer Subject to Peer Review'}
{'type': 'retained_by', 'target': 'Client Confidentiality-Instructing Engineering Services Client'}
{'type': 'reviews_work_of', 'target': 'Engineer A Original Design Engineer Subject to Peer Review'}
Faithful Agent Peer-Notification-Conflicted Reviewing Engineer
Engineer B acted unethically in notifying Engineer A of Engineer B's relationship with the client
Engineer B had an obligation not to notify Engineer A once Engineer B was told by client not to tell Engineer A
Engineer B Faithful Agent Peer-Review Collegial Duty Boundary BER Case Discussion
Engineer B was obligated to act as a faithful agent and trustee for the franchiser client by conducting the requested review of Engineer A's pending design work in the manner most beneficial to the client — including respecting the client's explicit confidentiality instruction — while simultaneously recognizing that the faithful agent role operates within the outer boundary set by professional ethics obligations, and that the competing obligations of Section II.4 and Section III.8.a. required contextual balancing.
Code Section II.4 places the obligation upon engineers to act in professional matters for clients as 'faithful agents or trustees'
Throughout Engineer B's engagement with the franchiser
The facts in this case present the Board with two conflicting provisions of the Code of Ethics: (1) the obligation of the engineer to provide appropriate notice to another engineer in connection with his reviewing the work of that engineer, and (2) the general duty of the engineer as 'faithful agent and trustee'
Notification Duty vs. Faithful Agent Duty Conflict
From Engineer B's acceptance of engagement through the ethics board's resolution
Engineer B's simultaneous obligations under Code Section III.8.a (notify incumbent) and Code Section II.4 (faithful agent to client)
Ethics board determination that faithful agent duty prevailed in this context
Client's instruction not to notify Engineer A, creating direct conflict between two code provisions
{'license': 'Professional Engineer (implied)', 'specialty': 'Franchise facility design review and design services', 'ethical_action': 'Voluntarily disclosed engagement to incumbent despite client confidentiality instruction'}
Retained by the franchiser to review pending design concerns while Engineer A's contract was still active; directed by the franchiser not to disclose the engagement to Engineer A; chose to disclose the relationship and preliminary review results to Engineer A despite the client's instruction; subsequently retained as the franchiser's full design engineer after Engineer A's contract expired.
{'type': 'peer', 'target': 'Engineer A Outgoing Incumbent Design Engineer'}
{'type': 'successor_to', 'target': 'Engineer A Outgoing Incumbent Design Engineer'}
Confidentiality-Directed Successor Design Engineer
franchiser begins discussions with Engineer B and retains Engineer B to provide immediate review of design concerns
Engineer B Peer Review Notification and Consent Fulfillment
Engineer B was retained to review Engineer A's pending design work while Engineer A's contract was still active; the franchiser instructed Engineer B not to disclose the engagement; Engineer B notified Engineer A following the review.
Peer Review Notification and Consent Obligation
Engineer B was obligated to notify Engineer A that Engineer A's work was being subjected to an independent peer review before or upon commencing that review, recognizing that Engineer A's professional dignity and right to know that their active work was under evaluation required notification regardless of the franchiser's confidentiality instruction.
Prior to or immediately upon commencing the peer review
Engineer B Peer Review Notification of Engineer A Despite Client Instruction
Franchiser retained Engineer B to review pending design concerns while Engineer A's contract was still active; franchiser explicitly instructed Engineer B not to disclose the engagement to Engineer A; Engineer B notified Engineer A anyway.
Client Instruction Non-Override of Incumbent Peer-Review Notification Obligation
Engineer B was obligated to notify Engineer A of the peer review engagement despite the franchiser's explicit instruction to maintain confidentiality, because the client's direction to conduct a covert review of an active incumbent engineer's work does not override the collegial duty to notify the engineer whose active work is under independent evaluation.
Prior to or immediately upon commencing the peer review of Engineer A's active design work
Engineer B Client Confidentiality Instruction Faithful Agent Compliance BER Case
The franchiser explicitly instructed Engineer B not to tell Engineer A about Engineer B's relationship with the client; Engineer B nonetheless notified Engineer A; the Board concluded Engineer B acted unethically in doing so, finding that the faithful agent duty required compliance with the client's confidentiality instruction
Client Confidentiality Instruction Faithful Agent Compliance Obligation
Once Engineer B was explicitly instructed by the franchiser client not to disclose Engineer B's review engagement to Engineer A, Engineer B was obligated to comply with that instruction as a faithful agent and trustee, and to refrain from notifying Engineer A of the engagement — recognizing that the disclosure, even without personal advantage motivation, constituted a neglect of the client's interests.
From the moment the franchiser instructed Engineer B to maintain confidentiality about the engagement