At-Will Employment Symmetry Applied to Engineer C Recruitment
Engineer A's offer of employment to Engineer C
Engineer C's freedom to accept competing employment
Competitive Employment Freedom With Confidentiality Constraint
Specialized Knowledge Constraint on Post-Departure Competition
The Board found that Engineer A's offer of employment to Engineer C was not unethical because, absent a written agreement or specialized knowledge constraint, Engineer C had the same freedom to move to a competing firm as Firm X would have had to terminate her employment; the disruption to Firm X was acknowledged but characterized as the accepted cost of a free employment market
The at-will symmetry principle establishes that the ethical evaluation of Engineer A's recruitment of Engineer C must begin from a presumption of permissibility, with the burden on finding a specific constraint (written agreement or specialized knowledge) that would override the default freedom
At-Will Employment Symmetry and Engineer Mobility Right
This approach is in essence the 'flip side' of the standard employment relationship where an employer, with few exceptions, may generally discontinue the services of an employed engineer 'at will.'
No specialized knowledge constraint or written agreement was found, so the at-will symmetry principle governed and the employment offer was held permissible
The BER cannot find any specific language in the NSPE Code of Ethics that would prevent one engineer from offering an employment position to another engineer.
While the departure of an employee is often disruptive and costly to an employer's operations as well as to a client's needs, this is the price that a free society pays in striking a balance between the rights of individual employees and the legitimate business considerations in the employment market.
At-Will Employment Reciprocity Reasoning
At-Will Employment Ethics Analogy Framework
This approach is in essence the 'flip side' of the standard employment relationship where an employer, with few exceptions, may generally discontinue the services of an employed engineer 'at will.' While the departure of an employee is often disruptive and costly to an employer's operations as well as to a client's needs, this is the price that a free society pays in striking a balance between the rights of individual employees and the legitimate business considerations in the employment market.
NSPE Board of Ethical Review in evaluating whether Engineer A's offer to Engineer C was ethical
Applied to justify the ethical permissibility of Engineer C's departure from Firm X and Engineer A's hiring of Engineer C, in the absence of a written non-compete agreement
NSPE Board of Ethical Review Cases on Post-Employment Competition and Client Solicitation
Engineer A had represented that he was going to start his own one-person consulting firm, Firm Y, and that he would not be in the position of competing with Firm X
Ethics reviewers and Engineer B in assessing Engineer A's conduct
Provides analogical precedential reasoning for evaluating whether Engineer A's conduct — departing a firm, recruiting its employees, and soliciting its clients with disparaging statements — violates professional ethics obligations.
NSPE Board of Ethical Review Case No. 77-11
In Case No. 77-11, the Board found that four engineers who left the employ of a firm, founded a new firm, and contacted the clients of the former firm were not in violation of the NSPE Code for doing so. However, the Board determined in Case No. 77-11 that the four engineers violated the NSPE Code with regard to projects for which they had gained specialized knowledge while in the employ of the firm.
NSPE Board of Ethical Review for analogical reasoning on specialized knowledge restrictions and client contact
Cited as precedent establishing that engineers who leave a firm and contact former clients are not per se in violation of the NSPE Code, but that contacting clients on projects for which they gained specialized knowledge while employed does constitute a violation
NSPE Board of Ethical Review Case No. 79-10
In Case No. 79-10, the BER determined that an engineer employed by a firm that was winding down its operations, and who sought to offer his services to complete projects under his own responsibility and risk without the concurrence of the principal of his employing firm, was ethical.
NSPE Board of Ethical Review for analogical reasoning on engineer independence during firm dissolution
Cited as precedent finding it ethical for an engineer employed by a winding-down firm to offer services to complete projects under his own responsibility and risk without the concurrence of the firm's principal
NSPE Board of Ethical Review Case No. 86-5
in Case No. 86-5, a city requested proposals from various consulting engineers for a major job that was planned.
The Board concluded that, according to a strict interpretation of the Code, it would be ethical for Engineers X, Y, and Z to agree to a contract for consulting services independent of Engineer A's firm.
NSPE Board of Ethical Review for analogical reasoning on engineer departure and client solicitation
Cited as precedent where engineers who developed a proposal for their firm were approached directly by the client and, after disclosing to their employer and resigning, were found ethically permitted to contract independently with the client
NSPE Board of Ethical Review Case No. 97-2
unlike the facts in BER Case No. 97-2, in which the client actually approached the engineer and encouraged the engineer to open his own company and suggested that the engineer could expect a retainer with the client, there does not appear to be any client impetus that would mitigate the actions taken by Engineer A under the facts.
NSPE Board of Ethical Review to distinguish Engineer A's conduct from a more ethically defensible scenario
Cited as a distinguishing precedent where client impetus (the client approaching the engineer and encouraging independent practice) mitigated the ethical concerns about an engineer departing to compete — contrasted with the present case where no such client impetus existed
BER Client-Impetus Mitigating Factor Assessment Application
Client-Impetus Mitigating Factor Assessment Capability
The BER exercised the capability to assess whether client-initiated impetus was present in the current case — distinguishing it from BER 97-2 where the client proactively encouraged the engineer — and correctly determined that the absence of client impetus in Engineer A's case meant no mitigation applied to his competitive solicitation conduct.
BER's ethical analysis of Engineer A's solicitation of Firm X's clients
The BER's explicit comparison of the present case to BER 97-2 and determination that the absence of client impetus was a critical factual distinction that removed a potential mitigating factor from Engineer A's conduct.
Moreover, unlike the facts in BER Case No. 97-2, in which the client actually approached the engineer and encouraged the engineer to open his own company and suggested that the engineer could expect a retainer with the client, there does not appear to be any client impetus that would mitigate the actions taken by Engineer A under the facts.
BER Employment Transition Multi-Precedent Synthesis Application
BER Multi-Precedent Employment Transition Ethics Synthesis Capability
The BER exercised the capability to retrieve and synthesize multiple precedent cases (BER 77-11, 79-10, 86-5, 97-2) on engineer employment transitions, identify factual distinctions between those precedents and the present case, and apply the synthesized framework to reach a justified ethical conclusion about Engineer A's conduct.
BER's ethical analysis of Engineer A's departure from Firm X and subsequent competitive conduct
The BER's systematic review of Cases 77-11, 79-10, 86-5, and 97-2, extraction of the three-party balance framework, and application to Engineer A's specific conduct.
In each instance, the Board has sought to strike a fair balance between the basic right of an individual engineer to demonstrate individual initiative and ambition in establishing an independent engineering business entity, coupled with the obligation and responsibility of that engineer to his/her former employer and/or clients.
Considering all factors and earlier BER cases on this issue, the Board must conclude that Engineer A's actions fell below the standards of appropriate ethical conduct.
In reaching its conclusion in Case No. 86-5, the Board reviewed two earlier BER cases, Nos. 77-11 and 79-10.
BER Multi-Party Competing Interest Fair Balance Reasoning Application
Multi-Party Competing Interest Fair Balance Reasoning Capability
The BER exercised the capability to identify and fairly weigh the three competing legitimate interests — client choice of firm, individual engineer career mobility, and incumbent firm business goodwill — and apply this three-party balance framework to evaluate the ethics of Engineer A's conduct.
BER's ethical analysis of the competing interests in Engineer A's employment transition case
The BER's explicit articulation of the three-party balance framework and its application to distinguish permissible competitive conduct (offering employment to Engineer C) from impermissible conduct (disparaging Firm X to its clients).
In reviewing each case, the Board noted the need to balance (1) the interests of the client in retaining the firm of its choice; (2) the interests of the individually employed engineers; and (3) the interests of the firm and its interest in maintaining business goodwill with its clients.
Moving to the specific facts of this case and balancing the interests of all parties involved in this matter, the Board believes that Engineer A's actions in offering a position to Engineer C was not in and of itself unethical.
CausalLink_Departure Non-Competition Repr
CausalLink_Disparaging Firm X to Clients
CausalLink_Engineer C Accepts Employment
City Case 86-5 Municipal Client Directly Soliciting Firm Staff
{'entity_type': 'Municipal government', 'action': 'Direct solicitation of individual engineers away from employing firm', 'procurement_right': 'Right to retain engineers of its choice'}
The city in Case 86-5, upon learning which engineers actually developed the proposal, directly approached Engineers X, Y, and Z to retain them as independent consultants outside the employing firm, exercising its right to choose engineers while raising questions of fair dealing with the firm.
{'type': 'former_contract_with', 'target': 'Engineer A Firm Principal'}
{'type': 'solicited', 'target': 'Engineers X Y Z'}
Municipal Client Directly Soliciting Firm Staff
a city requested proposals from various consulting engineers for a major job
No one can deny that a client has a right to retain the engineering firm of its choice
a city official approached Engineers X, Y, and Z and asked if they would agree to a contract as consultants, independent of Engineer A's firm
Client Autonomy in Service Provider Selection Distinguished from Engineer-Manipulated Transition
Engineer A's solicitation of Firm X's clients
Disparaging Misrepresentation of Competitor Capability Prohibition
Non-Competition Representation Integrity Obligation
Self-Caused Incapacity Non-Exploitation Principle
The Board distinguished the current case from BER Case No. 97-2 (where client-initiated encouragement mitigated ethical concerns) by finding no client impetus in Engineer A's solicitation — Engineer A manufactured client concerns about Firm X's capacity rather than responding to genuine client-initiated interest in transition, thereby converting the client autonomy principle from a mitigating factor into an aggravating one
Client autonomy in service provider selection is a legitimate value that can mitigate ethical concerns when clients genuinely exercise their choice; but when an engineer manufactures the conditions that induce client concern and then presents himself as the solution, the client autonomy principle is being exploited rather than respected
Client Autonomy in Engineering Service Provider Selection
The absence of genuine client impetus meant the client autonomy principle provided no mitigation; Engineer A's conduct was found to fall below ethical standards
No one can deny that a client has a right to retain the engineering firm of its choice.
What must be addressed, however, is a method to effect that right in a manner that is both fair and equitable to all of the concerned parties.
Competitive Employment Freedom With Confidentiality Constraint Applied to Engineer C
Engineer C Recruited Former-Employer Staff Engineer
Engineer C, as a licensed professional engineer employed by Firm X, has a general right to accept employment with a competing firm (Firm Y) without ethical violation, provided she does not disclose or use confidential information from Firm X; her anticipated departure is not itself an ethical violation
Engineer C's right to accept Engineer A's offer is protected by the principle of competitive employment freedom; the ethical analysis of this case focuses on Engineer A's conduct in exploiting that anticipated departure, not on Engineer C's decision to consider the offer
Engineer A has contacted one of Firm X's employees, Engineer C, and offered her a position with Firm Y.
Engineer C's employment freedom is not constrained by Firm X's interest in retaining her; the ethical violations in this case are Engineer A's, not Engineer C's, provided Engineer C does not misuse confidential Firm X information
NSPE Code of Ethics; NSPE Board of Ethical Review
Professional Norms Governing Competitor Conduct in Procurement Contexts
Competitor Conduct in Procurement Standard
Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully on its projects and that Firm X's clients should hire Firm Y to perform engineering services
Applicable to Engineer A's approach to Firm X's existing clients, where Engineer A exploits knowledge of Firm X's internal staffing situation to disparage Firm X's capacity and gain competitive advantage in securing those clients for Firm Y.
It was ethical for Engineer A to offer a position to Engineer C.
Beyond the Board's finding that it was ethical for Engineer A to offer a position to Engineer C, the ethical permissibility of that recruitment rests on a narrow but important foundation: Engineer C had no written non-compete agreement and possessed no specialized knowledge that would restrict her competitive mobility. However, the Board's clean approval of the recruitment act in isolation obscures a morally significant complication — Engineer A's subsequent use of Engineer C's anticipated departure as the evidentiary basis for his capacity disparagement of Firm X transforms the recruitment from an independently permissible act into the first step of an integrated strategy of competitive harm. The ethical permissibility of the offer to Engineer C does not immunize the recruitment from scrutiny when it is viewed as part of that larger scheme. A more complete analysis would distinguish between the recruitment act considered in isolation, which is permissible, and the recruitment act considered as a deliberate instrument for manufacturing the very condition Engineer A then exploited to undermine Firm X's client relationships, which raises independent ethical concerns under the self-caused incapacity non-exploitation principle.
The Board's approval of Engineer A's offer to Engineer C should be read subject to an implicit temporal and representational constraint that the Board did not articulate: Engineer A's pre-departure representation that he would operate a one-person consulting firm and would not compete with Firm X created a residual ethical obligation that did not simply expire upon his departure. While that representation does not function as a legally enforceable non-compete covenant, it constitutes a voluntary professional undertaking of the kind that NSPE ethics doctrine treats as binding on a person's subsequent conduct. The act of recruiting Engineer C — which necessarily expanded Firm Y beyond a one-person operation and placed Engineer A in direct competition with Firm X for staff — was not merely a business decision but a breach of a self-imposed professional commitment. The Board's conclusion that the offer to Engineer C was ethical is therefore incomplete unless it is understood to address only the narrow question of whether Engineer C's at-will status and absence of specialized knowledge made the recruitment permissible in the abstract, not whether Engineer A's prior representation had already foreclosed that option as a matter of professional integrity.
The Board's finding that it was not ethical for Engineer A to make representations to Firm X's clients that Firm X would be 'hard pressed' to perform successfully addresses the surface-level misrepresentation but does not fully account for the compounded ethical wrong embedded in the self-caused incapacity dynamic. Engineer A's statements to clients were not merely false or misleading in the conventional sense — they were predictions about a condition that Engineer A himself had engineered by recruiting Engineer C. This distinguishes Engineer A's conduct from ordinary competitive disparagement, where a competitor observes and then comments on a rival's weakness. Here, Engineer A manufactured the weakness, then presented it to clients as an objective fact about Firm X's capacity, without disclosing that he was the cause of the very deficiency he was citing. This constitutes a form of artful misrepresentation that violates the prohibition on technically true but misleading statements: the prediction that Firm X would be 'hard pressed' may have been accurate in a narrow factual sense, but it was profoundly misleading because it omitted the material fact that Engineer A's own recruitment of Engineer C was the source of that anticipated incapacity. The ethical violation is therefore not only one of competitor reputation injury but also one of material omission in a client communication that was designed to redirect business.
The Board's conclusion on the client disparagement question implicitly resolves, but does not openly address, the tension between the client autonomy principle and the prohibition on engineer-manipulated transitions. Firm X's clients have a genuine and legitimate interest in accurate information about whether their engineering service provider can fulfill its contractual obligations. In principle, a competitor who possesses credible information about a rival's capacity limitations could argue that disclosing that information serves client interests. However, Engineer A's situation forecloses this argument for two independent reasons. First, Engineer A was not a neutral observer reporting an independently existing condition — he was the agent who created the condition he was reporting. Second, Engineer A's statements were framed not as neutral disclosures but as affirmative solicitations directing clients to hire Firm Y, which reveals that the client interest rationale was pretextual. The Board's conclusion is therefore correct, but a fuller analysis would make explicit that the client autonomy principle cannot be invoked to justify capacity disparagement when the disparaging party is both the cause of the capacity deficit and the direct commercial beneficiary of the client's resulting anxiety.
Neither of the Board's explicit conclusions addresses the ethical position of Engineer B, whose decision to report Engineer A's misconduct to a licensing board is complicated by Engineer B's status as a principal of Firm X — the direct commercial competitor harmed by Engineer A's conduct. The engineering profession's self-policing obligation is genuine and important, and Engineer B's report may well be substantively correct and professionally warranted. However, the mixture of motives present in Engineer B's situation — a sincere professional duty to report misconduct combined with a direct competitive interest in suppressing Engineer A's client solicitation — raises a question the Board left unresolved: whether the ethical quality of a self-policing act is diminished when the reporting party stands to benefit commercially from the outcome of the report. A more complete analysis would conclude that Engineer B's competitive interest does not nullify the reporting obligation, but it does impose a heightened duty of accuracy and good faith on Engineer B's report, and it would be ethically problematic for Engineer B to use the licensing board complaint as a strategic instrument to amplify reputational harm to Engineer A beyond what the facts warrant.
A dimension of the case that the Board's conclusions leave entirely unaddressed is the independent ethical position of Engineer C. Engineer C is treated throughout the Board's analysis as a passive object of recruitment rather than as a moral agent with her own professional obligations. However, if Engineer A's representations to Firm X's clients about Engineer C's departure were made without Engineer C's knowledge or consent — and particularly if those representations mischaracterized her intentions, her timeline, or the terms of any commitment she had made to Firm Y — Engineer C may bear an independent ethical obligation to correct the record. The NSPE Code's requirements of honesty and professional integrity apply to Engineer C as well, and if she became aware that her name was being used to undermine Firm X's client relationships in ways she had not authorized, silence could constitute a form of complicity in Engineer A's misrepresentation. This analysis does not alter the Board's conclusions but identifies an ethical actor whose obligations the Board's framework did not reach.
It was not ethical for Engineer A to make representations that because Engineer C is going to be leaving Firm X to work for Firm Y, that Firm X will be “hard pressed” to perform successfully on its projects and that Firm X’s clients should hire Firm Y to perform engineering services.
In response to Q101: Engineer A's pre-departure representation that he would operate a one-person consulting firm and would not compete with Firm X created a binding ethical obligation that extended beyond the moment of departure. Although no formal contractual non-compete agreement existed, the voluntary and specific nature of the representation — made to a party who would foreseeably rely on it — generated a moral duty of fidelity that constrained Engineer A's subsequent competitive conduct. The scope of that obligation encompassed at minimum the specific competitive behaviors Engineer A implicitly disclaimed: soliciting Firm X's employees and leveraging Firm X's client relationships through disparagement. The duration of the obligation is not indefinite, but it persists long enough to be meaningful — a month after departure is plainly within its operative window. Engineer A's conduct fell squarely within the zone of behavior his own representation foreclosed, making the ethical violation not merely one of misrepresentation at the moment of departure but a continuing breach of the reliance interest he voluntarily created.
In response to Q102: Engineer B's competitive motivation for reporting Engineer A's misconduct to a licensing board is ethically relevant but does not nullify the self-policing obligation Engineer B otherwise bears. The engineering profession's self-policing norm is grounded in the collective interest of the profession and the public, not in the purity of any individual reporter's motives. A report that is factually accurate and describes genuine ethical violations retains its professional legitimacy even when the reporter benefits competitively from the outcome. However, the mixture of motives is not ethically irrelevant: Engineer B bears a heightened obligation of accuracy and restraint, must not exaggerate or fabricate elements of the complaint to gain competitive advantage, and should be transparent about the competitive relationship if asked by the licensing board. The ethical quality of Engineer B's act is diminished — but not negated — by the competitive interest. The self-policing duty survives; the virtue of the act is partial rather than complete.
In response to Q103: Even if Engineer A's statements about Firm X being 'hard pressed' were technically accurate at the moment of utterance, the self-caused nature of the condition he was exploiting transforms the ethical character of those statements into an independent violation distinct from simple misrepresentation. Engineer A engineered the very staff departure he then weaponized as evidence of Firm X's incapacity. This self-caused incapacity exploitation dynamic means that even a technically true statement becomes ethically impermissible because Engineer A was the proximate cause of the condition he was representing to clients as a reason to abandon Firm X. The ethical wrong is not reducible to falsity alone — it encompasses the manipulation of a situation Engineer A himself created to generate a self-fulfilling competitive advantage. This represents a distinct violation of the prohibition on injuring a competitor's professional reputation through improper means, layered on top of and independent from any misrepresentation violation.
In response to Q104: Engineer C bears a limited but real independent ethical obligation in this scenario. If Engineer A's representations to Firm X's clients materially mischaracterized Engineer C's intentions, timeline, or commitment to leaving — for example, if Engineer C had not yet formally accepted the offer or had not yet decided to leave — then Engineer C's silence in the face of those misrepresentations, once she became aware of them, would be ethically problematic. The obligation is not absolute: Engineer C is not required to police Engineer A's conduct or to affirmatively contact Firm X's clients. However, if Engineer C knew that Engineer A was using her anticipated departure as a lever to mislead clients and she took no corrective action within her reasonable reach — such as clarifying her actual status to Firm X — she would be passively complicit in a misrepresentation that affected third parties. The strength of this obligation scales with Engineer C's actual knowledge of Engineer A's client communications and the degree to which those communications misrepresented her situation.
In response to Q201: The principle of free and open competition does conflict with the self-caused incapacity non-exploitation principle in this case, and the conflict is resolved against Engineer A. Free and open competition permits Engineer A to recruit Engineer C and to solicit Firm X's clients on the merits of Firm Y. It does not, however, permit Engineer A to use the departure he engineered as the evidentiary predicate for a capacity disparagement campaign against Firm X. The boundary between permissible competition and impermissible exploitation is crossed when a competitor manufactures the very condition he then represents as an independent fact about his rival's weakness. The free competition principle is a boundary condition that enables legitimate rivalry; it is not a license to construct and then exploit self-fulfilling incapacity narratives. The self-caused incapacity non-exploitation principle operates as a constraint within the competitive space, not as a denial of that space.
In response to Q202: The at-will employment symmetry principle — which grants Engineer C full freedom to accept Engineer A's offer — does conflict with the client autonomy principle when Engineer A uses Engineer C's anticipated departure as a lever to manipulate client decision-making before Engineer C has formally committed to leaving or actually departed. Client autonomy is genuinely served when clients receive accurate, timely, and unmanipulated information about their service providers' capacity. When Engineer A presents Engineer C's departure as a fait accompli to clients before it is one, he is not informing client autonomy — he is manufacturing a false urgency that forecloses the deliberative space client autonomy requires. The at-will symmetry principle protects Engineer C's freedom to leave; it does not authorize Engineer A to weaponize the anticipation of that freedom as a premature and misleading representation to third parties. The two principles operate in different domains and the conflict is resolved by recognizing that Engineer C's mobility rights and Engineer A's representational duties to clients are analytically separable.
In response to Q203: The tripartite interest balancing principle does create tension with the prohibition on reputation injury through competitive critique, but this tension does not justify Engineer A's conduct. Clients do have a genuine interest in accurate information about their service providers' capacity, and in principle some form of candid competitive communication could serve that interest. However, the resolution of this tension requires that any competitive communication be accurate, not self-caused, and not framed as a directive to abandon the incumbent firm. Engineer A's statements failed on all three counts: they were misleading in framing a contingent future departure as a present incapacity, they described a condition Engineer A himself engineered, and they were structured as client solicitations rather than neutral disclosures. A communication that genuinely served client interests in accurate information would have been factually precise, would have disclosed Engineer A's role in creating the situation, and would have left the client to draw their own conclusions. Engineer A's actual communications served his competitive interests at the expense of client deliberative autonomy and Firm X's reputation.
In response to Q204: The conflict between Engineer B's self-policing obligation and the honesty in professional representations principle is real but manageable. The risk that a licensing board complaint becomes a strategic business weapon rather than a good-faith professional duty is genuine when the reporter has a direct competitive interest in the outcome. The resolution is not to excuse Engineer B from the self-policing obligation — that obligation exists independently of motive — but to impose on Engineer B a heightened duty of accuracy and completeness in the complaint itself. Engineer B must not overstate the violations, must not omit facts that would contextualize Engineer A's conduct favorably, and should disclose the competitive relationship to the licensing board so that the board can weigh the report accordingly. If Engineer B meets these conditions, the self-policing act retains its ethical legitimacy despite the competitive motivation. If Engineer B uses the complaint as an opportunity to exaggerate or fabricate, the honesty principle is violated and the self-policing act becomes itself an ethical violation.
In response to Q301: From a deontological perspective, Engineer A violated a categorical duty of honesty by making representations about Firm X's capacity that he knew — or should have known — were misleading, regardless of whether those representations ultimately harmed Firm X's client relationships. The deontological wrong is located in the act of making misleading representations, not in their consequences. Engineer A's statements framed a contingent and self-caused future condition as a present and independent fact about Firm X's incapacity. A rational agent applying the categorical imperative could not universalize a maxim permitting competitors to represent self-engineered staff departures as independent evidence of a rival's incapacity — such a maxim would destroy the informational integrity on which professional client relationships depend. The absence of actual harm to Firm X's client relationships, if any, is irrelevant to the deontological analysis: the duty was violated at the moment the misleading representation was made.
In response to Q302: From a deontological perspective, Engineer A's voluntary pre-departure representation that he would not compete with Firm X created a binding moral duty — independent of any contractual non-compete agreement — that constrained his subsequent conduct toward Firm X's employees and clients. The moral force of this duty derives from the reliance interest it generated: Firm X's principals foreseeably relied on Engineer A's representation in their planning and in their decision not to seek contractual protections. A voluntary representation made to induce reliance generates a duty of fidelity that is morally binding even absent legal enforceability. From a Kantian perspective, Engineer A's subsequent conduct — recruiting Engineer C and soliciting Firm X's clients — cannot be universalized without destroying the institution of professional representations of intent, which depends on those representations being honored. The moral duty was not unlimited in duration or scope, but it clearly encompassed the conduct Engineer A engaged in within one month of departure.
In response to Q303: From a consequentialist perspective, Engineer A's strategy of recruiting Engineer C and then leveraging her anticipated departure to disparage Firm X's capacity produced net harm across all affected parties that outweighed any competitive benefit to Firm Y. Firm X suffered reputational harm and potential client loss based on misleading representations. Firm X's clients were deprived of accurate information and subjected to manipulated urgency in their service provider decisions, undermining their ability to make genuinely autonomous choices. Engineer C was placed in a professionally compromised position, potentially associated with a disparagement campaign she did not authorize. The engineering profession suffered erosion of the trust norms that make professional representations meaningful and that enable orderly competitive transitions. Against these harms, the competitive benefit to Firm Y — gaining clients through disparagement rather than merit — is not only modest in magnitude but is also the kind of benefit that consequentialist analysis in professional ethics contexts discounts heavily, because it is achieved through means that, if generalized, would produce systemic harm to professional trust far exceeding any individual competitive gain.
In response to Q304: From a virtue ethics perspective, Engineer A failed to demonstrate the professional character traits of integrity and collegiality when he used insider knowledge of Firm X's staffing structure — acquired during his employment — to engineer a self-fulfilling prediction of Firm X's incapacity and then exploit that prediction in client solicitations. A person of integrity does not make representations of intent that he does not honor, does not manufacture the conditions he then presents as independent facts, and does not use knowledge acquired in a relationship of trust to undermine the party who extended that trust. A collegial professional competes on the merits of his own firm's capabilities rather than on the manufactured weaknesses of his former employer. Engineer A's conduct reflects not merely a series of discrete rule violations but a pattern of character that is fundamentally incompatible with the professional virtues the engineering ethics framework is designed to cultivate and protect. The self-fulfilling disparagement strategy is particularly revealing of character because it required Engineer A to plan and execute a sequence of actions — departure, recruitment, client solicitation — each of which was individually calibrated to serve the overall strategy of undermining Firm X.
In response to Q305: From a virtue ethics perspective, Engineer B's decision to report Engineer A's misconduct to the licensing board reflects a mixture of genuine professional self-policing virtue and competitive self-interest that partially compromises the ethical quality of the act without eliminating it. Pure virtue in self-policing would involve reporting misconduct solely because it harms the profession and the public, with no personal benefit to the reporter. Engineer B's competitive interest in suppressing Engineer A's conduct means the act cannot be characterized as purely virtuous. However, virtue ethics does not require pure motives — it requires that the agent act in accordance with the virtues that a person of good character would display. A person of good professional character would report genuine misconduct even when they benefit from doing so, provided they do so accurately and in good faith. The ethical quality of Engineer B's act therefore depends heavily on how the report is made: if it is accurate, complete, and made in good faith, it reflects partial virtue; if it is exaggerated or strategically framed to maximize competitive damage, it reflects a failure of integrity that overwhelms the self-policing virtue.
In response to Q401: If Engineer A had disclosed to Firm X before departing that he intended to establish a firm that would compete for the same clients and potentially recruit Firm X staff, his subsequent offer to Engineer C would have remained ethically permissible — and the Board's analysis of the non-compete misrepresentation would have changed significantly. The ethical permissibility of recruiting Engineer C does not depend on the departure representation; it rests on the at-will employment symmetry principle and the absence of a written non-compete agreement or specialized knowledge restriction. Those conditions would have been unchanged by honest disclosure. However, the honest disclosure would have eliminated the independent ethical violation arising from the misrepresentation of intent, and it would have altered the moral context of the subsequent client solicitations. The client solicitations would still have been ethically problematic if they included capacity disparagement, but the layered violation of misrepresentation-plus-exploitation would have been reduced to the single violation of improper competitive communication. Honest disclosure at departure would not have sanitized the disparagement, but it would have removed one of the two independent grounds for ethical criticism.
In response to Q402: If Engineer C had ultimately declined Engineer A's offer and remained at Firm X, Engineer A's statements to Firm X's clients about Firm X being 'hard pressed' to perform would still constitute an ethical violation — but the nature and severity of that violation would differ from the scenario in which Engineer C actually departed. The ethical wrong in Engineer A's statements is not contingent on the predicted departure materializing; it is located in the act of making misleading representations to clients about a competitor's capacity based on a contingent future event that Engineer A himself was attempting to engineer. If Engineer C declined and remained, the statements would be revealed as both misleading and factually false, compounding the violation. The self-caused incapacity exploitation dynamic would be partially undermined — Engineer A would have attempted but failed to create the condition he was representing — but the misrepresentation violation would remain fully intact. The ethical wrong does not depend on the prediction coming true; it depends on the character of the representation at the moment it was made.
In response to Q403: If Firm X's clients had independently approached Engineer A and asked him to assess Firm X's capacity to complete ongoing projects — rather than Engineer A proactively soliciting them — the Board's ethical analysis of his capacity disparagement statements would likely have been somewhat more favorable, but would not have fully exonerated him. The client-impetus mitigating factor, recognized in BER precedent, reduces the ethical weight of competitive solicitation when the transition is client-initiated rather than engineer-initiated. However, even in a client-initiated inquiry, Engineer A would have retained the obligation to respond honestly and without misleading framing. He could not, even in response to a direct client question, represent a self-caused and contingent future departure as an independent present fact about Firm X's incapacity. The client-impetus factor mitigates the solicitation dimension of the violation but does not reach the misrepresentation dimension. Engineer A's statements would still have been ethically problematic for their misleading character, though the proactive solicitation aggravant would have been absent.
In response to Q404: If Engineer A had recruited Engineer C without making any disparaging statements to Firm X's clients — relying solely on Firm Y's own merits to attract business — the Board's conclusion on Question 1 would not have been affected, and the ethical permissibility of the recruitment would have been significantly cleaner. The Board's affirmative conclusion on Question 1 rests on the at-will employment symmetry principle and the absence of a written non-compete agreement or specialized knowledge restriction applicable to Engineer C. Those foundations are independent of the disparagement conduct addressed in Question 2. However, the ethical cleanliness of the recruitment scenario without disparagement is not absolute: Engineer A's pre-departure misrepresentation about not competing would still have been violated by the recruitment itself, since recruiting a key Firm X employee is plainly competitive conduct. The absence of disparagement would have eliminated the most serious ethical violation — the capacity misrepresentation to clients — but would not have fully resolved the misrepresentation-of-intent violation. The recruitment, standing alone, would have been ethically permissible under at-will symmetry principles while remaining ethically complicated by the departure representation.
The tension between free and open competition — which unambiguously permits Engineer A to recruit Engineer C and solicit Firm X's clients — and the self-caused incapacity non-exploitation principle was resolved by the Board in favor of the latter, but only with respect to the disparagement conduct, not the recruitment itself. This resolution reveals a critical doctrinal boundary: competitive freedom extends to acts that weaken a former employer (recruiting its staff, soliciting its clients), but it does not extend to using the consequences of those very acts as evidentiary ammunition to disparage the former employer's capacity. The ethical wrong is not that Engineer A competed; it is that he manufactured the condition of Firm X's alleged incapacity through his own recruitment of Engineer C and then weaponized that self-caused condition as a factual predicate for client-facing disparagement. Free competition permits Engineer A to make Firm X weaker; it does not permit him to then point to that weakness — which he created — as proof that clients should abandon Firm X. The self-caused incapacity non-exploitation principle thus functions as a limiting condition on competitive freedom rather than a competing value of equal weight, and the Board's resolution implicitly treats it as lexically superior once the self-causation nexus is established.
The at-will employment symmetry principle — which grants Engineer C full freedom to accept Engineer A's offer and grants Engineer A full freedom to extend it — was preserved intact by the Board's conclusion on Question 1, but this preservation was implicitly conditioned on a separation between the recruitment act and the disparagement act. The Board's analysis treats these as analytically distinct events even though they are causally linked in Engineer A's competitive strategy. This separation is ethically significant: it means that the at-will employment symmetry principle does not become contaminated or retroactively invalidated by the subsequent misuse of the recruitment's consequences. Engineer C's freedom to depart and Engineer A's freedom to hire her remain ethically clean even though Engineer A later exploited her anticipated departure unethically. The case therefore teaches that the ethical quality of an act is assessed at the moment of the act and under the principles governing that act, not retrospectively recharacterized by the actor's subsequent misuse of the act's consequences. However, this separation also creates a residual tension with the client autonomy principle: clients who received Engineer A's disparaging representations were denied the ability to make genuinely autonomous service decisions because their information environment was corrupted by Engineer A's self-serving framing of Engineer C's departure — a framing that exploited the very at-will freedom the Board simultaneously protected.
The tripartite interest balancing principle — which requires fair consideration of Engineer A's competitive interests, Firm X's continuity interests, and clients' genuine service interests — was resolved in a way that exposes a deep structural asymmetry in how the Board weights these interests when misrepresentation is present. In the absence of misrepresentation, the tripartite balance would likely permit Engineer A to communicate accurate information about Firm X's staffing changes to clients, because clients have a genuine and legitimate interest in knowing whether their service provider retains the personnel capacity to fulfill contractual obligations. This is the principle tension identified in Q203: clients' real informational interests could, in principle, justify some form of candid competitive communication about Firm X's capacity. However, the Board's resolution forecloses this possibility entirely once the communication takes the form of predictive disparagement engineered by the speaker himself. The prohibition on reputation injury through competitive critique is treated as categorical in this context — it does not yield to the clients' informational interest because the information being conveyed is not neutral fact but a self-serving prediction whose evidentiary basis was manufactured by the speaker. This resolution teaches that the tripartite balance is not a simple utilitarian calculus; it is constrained by deontological side-constraints on honesty and non-manipulation that prevent the clients' informational interest from being invoked to justify misleading communications, even technically accurate ones.
Should Engineer A honor his pre-departure non-competition representation by refraining from recruiting Firm X staff and soliciting Firm X clients, or proceed with competitive expansion on the grounds that no legally enforceable non-compete agreement exists?
Engineer A departed Firm X after explicitly representing he would start a one-person consulting firm and would not compete with Firm X. Within one month, he recruited Engineer C from Firm X and solicited Firm X's clients. The core question is whether Engineer A's voluntary pre-departure representation created a binding ethical obligation constraining his subsequent competitive conduct — specifically the recruitment of Firm X staff and direct solicitation of Firm X clients.
Refrain from recruiting Firm X employees and directly soliciting Firm X clients for a meaningful period following departure, consistent with the one-person firm representation made to Firm X, competing only on the merits of Firm Y's independent capabilities.
Proceed with recruiting Firm X staff and soliciting Firm X clients on the grounds that no legally enforceable non-compete covenant exists and the at-will employment symmetry principle fully protects competitive mobility, treating the departure statement as an informal expression of present intent rather than a binding commitment.
Return to Firm X to disclose that business conditions have changed and that Firm Y will need to expand beyond a one-person operation and compete for clients, giving Firm X the opportunity to seek contractual protections or adjust its reliance on the original representation before Engineer A proceeds with competitive conduct.
Should Engineer A offer Engineer C a position at Firm Y as a legitimate exercise of competitive recruitment, or refrain from recruiting Firm X employees given his non-competition representation and the risk that the recruitment will be weaponized as the basis for client-facing disparagement of Firm X?
Engineer A offered Engineer C a position at Firm Y. Engineer C is an at-will employee of Firm X with no written non-compete agreement and no specialized proprietary knowledge that would restrict her competitive mobility. The ethical question is whether Engineer A's offer to Engineer C was permissible given the at-will employment symmetry principle, and whether the subsequent use of Engineer C's anticipated departure as a basis for disparaging Firm X to clients transforms the recruitment from a permissible act into the first step of an impermissible integrated strategy.
Offer Engineer C the position at Firm Y as a legitimate competitive recruitment, but strictly refrain from using her anticipated departure as a basis for any representations to Firm X's clients about Firm X's capacity, competing for clients solely on Firm Y's own merits.
Offer Engineer C the position and proactively contact Firm X's clients to inform them of her anticipated departure, representing that Firm X will be hard pressed to perform and directing clients to engage Firm Y — treating the departure as a legitimate competitive differentiator in client solicitations.
Solicit Firm X's clients for Firm Y first on the basis of Firm Y's own capabilities, and only thereafter recruit Engineer C, maintaining temporal and causal separation between the competitive solicitation and the staff recruitment to avoid the self-caused incapacity exploitation dynamic.
Should Engineer A communicate to Firm X's clients about Engineer C's anticipated departure and its implications for Firm X's capacity, or refrain from making any capacity-related representations about Firm X given that he engineered the departure he is citing and is the direct commercial beneficiary of client anxiety?
Engineer A contacted Firm X's clients and represented that because Engineer C was leaving to join Firm Y, Firm X would be 'hard pressed' to perform successfully on its projects, and that clients should hire Firm Y. The ethical question is whether these representations — which may have been technically accurate in a narrow sense — constitute an ethical violation given that Engineer A himself caused the staff departure he was citing, and that the statements were framed as affirmative solicitations rather than neutral disclosures.
Make no representations to Firm X's clients about Firm X's capacity to perform, soliciting clients for Firm Y solely on the basis of Firm Y's own qualifications, experience, and capabilities without reference to Engineer C's departure or Firm X's alleged incapacity.
Inform Firm X's clients of Engineer C's anticipated departure while fully disclosing that Engineer A recruited Engineer C and is therefore the cause of the staffing change, leaving clients to draw their own conclusions about Firm X's capacity without directing them to hire Firm Y.
Proactively contact Firm X's clients to represent that Engineer C's departure will leave Firm X hard pressed to perform and that clients should engage Firm Y, treating the anticipated staffing change as a legitimate factual basis for competitive solicitation without disclosing Engineer A's causal role in creating that condition.
Should Engineer B report Engineer A's misconduct to the licensing board while disclosing the competitive relationship, report without such disclosure, or refrain from reporting given the conflict of interest created by Engineer B's direct competitive stake in the outcome?
Engineer B, a principal of Firm X and a direct commercial competitor of Engineer A, has learned of Engineer A's misconduct — including the false non-competition representation and the disparaging misrepresentations to Firm X's clients. Engineer B faces the question of whether to report Engineer A's conduct to the appropriate licensing authority, and if so, how to handle the competitive motivation that also drives the report. The engineering profession's self-policing obligation is genuine, but Engineer B's direct competitive interest in suppressing Engineer A's client solicitation creates a risk that the licensing board complaint becomes a strategic business weapon.
File an accurate, factually grounded report of Engineer A's misconduct with the licensing board while proactively disclosing to the board that Engineer B is a direct commercial competitor of Engineer A and that Engineer A is actively soliciting Firm X's clients, enabling the board to weigh the report's context appropriately.
File a report of Engineer A's misconduct with the licensing board presenting the violations on their professional merits without disclosing the competitive relationship, on the grounds that the validity of the underlying violations is independent of the reporter's motivations and that disclosure of competitive interest is not formally required.
Refrain from filing the complaint directly given the conflict of interest, and instead bring the documented misconduct to the attention of a neutral professional body or uninvolved licensed engineer who can evaluate the violations and file a report without the competitive motivation that compromises Engineer B's position.
Should Engineer C, upon learning that Engineer A has used her anticipated departure to make misleading representations to Firm X's clients without her authorization, take corrective action to clarify her actual status and intentions, or treat the matter as Engineer A's independent conduct for which she bears no responsibility?
Engineer C accepted Engineer A's offer to join Firm Y. Engineer A subsequently used Engineer C's anticipated departure as the basis for representations to Firm X's clients that Firm X would be 'hard pressed' to perform — representations that may have been made without Engineer C's knowledge or consent and that may have mischaracterized her intentions or timeline. The question is whether Engineer C bears an independent ethical obligation to correct the record with Firm X or its clients if she becomes aware that her name and anticipated departure are being used to mislead third parties.
Upon learning that Engineer A has used her anticipated departure to make representations to Firm X's clients that mischaracterize her intentions or timeline, proactively clarify her actual status and the terms of any commitment she has made to Firm Y, enabling Firm X to correct the record with its clients.
Refrain from any corrective action on the grounds that Engineer A's representations to Firm X's clients are his independent conduct for which Engineer C bears no professional responsibility, and that Engineer C's only obligations are to honor confidentiality of Firm X's proprietary information and to perform her new role at Firm Y competently.
Notify Engineer A that she does not authorize the use of her anticipated departure as a basis for representations to Firm X's clients, without directly contacting Firm X or its clients, placing the corrective obligation on Engineer A while preserving Engineer C's professional relationship with her new employer.
Should Engineer A, having legitimately recruited Engineer C from Firm X, treat Engineer C's anticipated departure as a permissible factual basis for communicating to Firm X's clients about Firm X's capacity, or recognize that his causal role in creating that condition forecloses its use as a competitive argument regardless of its narrow factual accuracy?
The case presents a structural tension between the principle of free and open competition — which unambiguously permits Engineer A to recruit Engineer C and solicit Firm X's clients — and the self-caused incapacity non-exploitation principle, which prohibits using the consequences of one's own competitive acts as evidentiary ammunition to disparage a former employer's capacity. The question is where the ethical boundary lies between permissible competitive conduct (weakening a rival by recruiting its staff) and impermissible exploitation (using the self-caused weakness as a factual predicate for client-facing disparagement).
Solicit Firm X's clients for Firm Y exclusively on the basis of Firm Y's own qualifications, personnel, and track record, refraining from any reference to Engineer C's departure or Firm X's resulting capacity as a basis for the solicitation, recognizing that the self-caused nature of the departure forecloses its use as competitive evidence.
Represent to Firm X's clients that Engineer C's departure is a factually accurate and material development affecting Firm X's capacity, treating the at-will recruitment as a legitimate competitive act whose consequences Engineer A is entitled to communicate to clients as accurate market information regardless of his causal role in creating those consequences.
Inform Firm X's clients of Engineer C's anticipated departure while fully disclosing that Engineer A recruited Engineer C and is therefore the proximate cause of the staffing change, presenting the information neutrally without directing clients to hire Firm Y, and allowing clients to make their own capacity assessments with full information about Engineer A's role.
Departure Non-Competition Representation
Departure Non-Competition Representation (Action 1) + Recruiting Firm X Employee (Action 2) + Disparaging Firm X to Clients (Action 3) → Firm X Reputation Materially Harmed (Event 6) — Aggregate Causal Chain
Departure Non-Competition Representation (Action 1) → Engineer A Departs Firm X (Event 1) → Firm Y Formally Established (Event 2)
Disparaging Firm X to Clients (Action 3) → Firm X Clients Receive False Information (Event 5) → Firm X Reputation Materially Harmed (Event 6)
Disparaging Misrepresentation of Competitor Capability Prohibition Violated By Engineer A
Firm X Clients Engineering Services Client Targeted by Competitor Disparagement
Free and Open Competition as Engineering Ethics Boundary Condition
Engineer A made affirmative predictive representations to Firm X's clients that Firm X would be 'hard pressed' to perform its projects successfully — a capability claim with no disclosed factual basis and made while Engineer A was simultaneously the cause of the anticipated staff departure he cited as the basis for the prediction
The capability prediction was either false (if Firm X could in fact perform without Engineer C) or misleading (by omitting Engineer A's own causal role in creating the predicted incapacity), in either case violating the prohibition on disparaging misrepresentation
Engineer B Incumbent Firm Principal Discovering Competitor Misconduct
Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully on its projects and that Firm X's clients should hire Firm Y to perform engineering services.
Competitive solicitation of clients is permissible; making false or misleading capability predictions about a competitor to that competitor's clients is not, regardless of competitive context
Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully on its projects
Firm X's clients should hire Firm Y to perform engineering services
Disparaging Misrepresentation of Competitor Capability Prohibition Violated by Engineer A
Engineer A's communications to Firm X's clients about Firm X's capacity
Prohibition on Reputation Injury Through Competitive Critique
Engineer A made representations to Firm X's clients stating or implying that Firm X would be 'hard pressed' to perform successfully on its projects because Engineer C was leaving — misrepresenting Firm X's capability to induce client defection to Firm Y, in violation of the NSPE Code prohibition on untruthfully criticizing other engineers to obtain professional engagements
The representation was doubly problematic: it was misleading about Firm X's actual capacity, and Engineer A was himself the cause of the alleged incapacity by recruiting Engineer C away — making the representation both a false capability claim and a self-caused incapacity exploitation
Engineer A has made at least one statement to the clients of Firm X stating or implying that Firm X might be incapable of fulfilling its professional obligations to them because of Engineer C's pending departure.
No competing principle mitigated Engineer A's conduct; the combination of the false representation, the self-caused nature of the alleged incapacity, and the prior non-competition representation compounded the ethical violation
the Board must conclude that Engineer A's actions fell below the standards of appropriate ethical conduct.
the NSPE Code of Ethics clearly states that (a) engineers shall not attempt to obtain employment or advancement or professional engagements by untruthfully criticizing other engineers, and that (b) engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers.
Professional Norms Governing Engineer Solicitation and Competitive Conduct
Engineer Solicitation and Competition Ethics Standard
Engineer A has contacted one of Firm X's employees, Engineer C, and offered her a position with Firm Y
Engineer A has contacted Firm X's clients and is making representations that Firm X will be 'hard pressed' to perform successfully on its projects and that Firm X's clients should hire Firm Y
Governs Engineer A's conduct in soliciting Firm X's clients by making disparaging statements about Firm X's ability to perform, and in recruiting Firm X's employee (Engineer C) to join Firm Y — both actions raising questions about ethical competitive conduct.
Engineer A Artful Misrepresentation Client Solicitation Recognition
Artful Misrepresentation in Negotiation Recognition Capability
Engineer A required the capability to recognize that his statements to Firm X's clients — while grounded in the factual premise of Engineer C's anticipated departure — were artfully constructed to create a false and misleading impression of Firm X's incapacity, constituting an ethical violation.
Engineer A's representations to Firm X's clients about Firm X being 'hard pressed' were technically grounded in an anticipated departure but created a misleading impression of incapacity.
Failure: Engineer A made artfully misleading statements to Firm X's clients by using a factual premise (Engineer C's departure) to create a false impression of Firm X's inability to perform.
Engineer A Artfully Misleading Client Representations
Engineer A's representation that Firm X would be 'hard pressed' to perform may have been technically grounded in Engineer C's departure but was designed to mislead clients about Firm X's overall capacity and to generate competitive advantage for Firm Y.
Artfully Misleading Statement Prohibition Obligation
Engineer A was obligated to refrain from making statements to Firm X's clients that, while potentially grounded in a factual premise (Engineer C's anticipated departure), were structured to create a false or exaggerated impression of Firm X's incapacity in order to divert clients to Firm Y.
During the period of client solicitation following departure from Firm X
Engineer A At-Will Employment Symmetry Competitive Mobility — Hiring Engineer C
The BER found that Engineer A's act of offering a position to Engineer C was not in and of itself unethical, distinguishing the permissible hiring from the impermissible subsequent disparagement
At-Will Employment Symmetry Competitive Mobility Permissibility Constraint
Engineer A's act of offering employment to Engineer C was itself ethically permissible under the at-will employment symmetry principle, given the absence of a written non-compete agreement and specialized knowledge restriction — the ethical violation arose from subsequent misrepresentations, not from the hiring itself.
NSPE BER Cases 77-11, 79-10, 86-5; NSPE Code of Ethics
the Board believes that Engineer A's actions in offering a position to Engineer C was not in and of itself unethical
At the time Engineer A extended an employment offer to Engineer C
The BER cannot find any specific language in the NSPE Code of Ethics that would prevent one engineer from offering an employment position to another engineer
the Board believes that Engineer A's conduct in hiring Engineer C is appropriate and within the bounds of what would be considered reasonable, particularly since Engineer A was an employee of Firm X and not a partner or principal of the firm
Engineer A Business Negotiation Artfully Misleading Client Representations — Engineer C Departure Framing
Engineer A used the technically true fact of Engineer C's anticipated departure — which Engineer A caused — to create a misleading impression of Firm X's organic incapacity
Business Negotiation Artfully Misleading Statement Prohibition Constraint
Engineer A was prohibited from framing Engineer C's departure — a departure Engineer A himself caused — as an independent factual basis for client concern about Firm X's performance capacity, because this framing, while grounded in a factual premise (Engineer C's departure), was structured to create a materially false impression that Firm X's incapacity was an organic development rather than an engineer-engineered outcome.
NSPE Code of Ethics — Non-Deception Provisions; NSPE Code Section II.3 on truthful statements in professional dealings
Engineer A Business Negotiation Honesty Non-Exemption Awareness
Business Negotiation Honesty Standard Non-Exemption Recognition Capability
Engineer A required the capability to recognize that professional honesty obligations applied with full force to his client solicitation communications and his representations to Firm X about his future competitive intentions, and that the competitive commercial context did not exempt him from these obligations.
Engineer A made misrepresentations in both his departure representation to Firm X and his subsequent client solicitation communications.
Failure: Engineer A treated client solicitation as a context exempt from professional honesty obligations, making misrepresentations about both his own competitive intentions and Firm X's capabilities.
Engineer A had represented that he was going to start his own one-person consulting firm, Firm Y, and that he would not be in the position of competing with Firm X.
Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully
Engineer A Case 86-5 Firm Principal Losing Staff to Client-Initiated Departure
{'role': 'Principal of large engineering firm', 'staff_solicited': 'Engineers X, Y, Z', 'soliciting_client': 'City'}
Engineer A (in Case 86-5) was the principal of a large engineering firm whose staff engineers (X, Y, Z) were directly solicited by the city client to work independently, representing a loss of business goodwill and client relationship.
{'type': 'client_relationship_at_risk', 'target': 'City Municipal Client'}
{'type': 'employer_of', 'target': 'Engineers X Y Z'}
Firm Principal Losing Staff to Client-Initiated Departure
Engineer A, a principal in a large engineering firm in the city decided to have his firm submit a proposal
the interests of the firm and its interest in maintaining business goodwill with its clients
Engineer A Client Impetus Mitigation Factor Absence — Firm X Client Solicitation
Engineer A self-initiated contact with Firm X's clients and made disparaging representations about Firm X's capacity — no client had approached Engineer A to encourage independent practice, removing the mitigating factor present in BER Case 97-2
Client Impetus Mitigation Factor Absence Aggravation Constraint
Engineer A's self-initiated solicitation of Firm X's clients lacked any client impetus that would mitigate the ethical concern — unlike BER Case 97-2 where the client approached the engineer, no client approached Engineer A, making his solicitation conduct subject to heightened ethical scrutiny.
NSPE BER Case 97-2; NSPE Code of Ethics Sections III.6, III.7
unlike the facts in BER Case No. 97-2, in which the client actually approached the engineer and encouraged the engineer to open his own company and suggested that the engineer could expect a retainer with the client, there does not appear to be any client impetus that would mitigate the actions taken by Engineer A under the facts
During Engineer A's solicitation of Firm X's clients following departure
Engineer A Collegial Non-Harm Competitive Context Failure
Collegial Non-Harm in Competitive Context Capability
Engineer A failed to exercise the capability to fulfill collegial obligations toward his former professional peers at Firm X by refraining from making representations to clients that would harm Firm X's professional reputation and competitive position, particularly given that Engineer A stood to benefit competitively from the harm caused.
Engineer A's competitive solicitation of Firm X's clients with disparaging representations
Failure: Engineer A made representations to Firm X's clients that Firm X would be 'hard pressed' to perform, directly harming Firm X's professional reputation and competitive position while Engineer A stood to gain those clients for Firm Y.
Engineer A was obligated, as a matter of collegial duty toward his former professional peers at Firm X, to refrain from making representations to clients that would harm Firm X's professional reputation.
the NSPE Code of Ethics clearly states that engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers.
Engineer A Collegial Non-Harm Competitive Context Obligation
Engineer A required the capability to recognize and fulfill collegial obligations toward his former professional peers at Firm X by refraining from making representations to clients that would harm Firm X's professional reputation and competitive position, particularly given that Engineer A stood to benefit competitively from that harm.
Engineer A's disparaging client solicitation communications directly harmed his former colleagues at Firm X while benefiting his competing firm.
Failure: Engineer A made disparaging representations to Firm X's clients that directly harmed Firm X's professional reputation and competitive position while Engineer A stood to benefit from that harm.
Engineer A Collegial Obligation Non-Disparagement of Firm X
Engineer A's campaign of disparaging representations to Firm X's clients constitutes a direct violation of the collegial duty of respect and fairness owed to professional peers, compounded by the fact that Engineer A was formerly a member of Firm X.
Engineer A was obligated, as a matter of collegial duty toward his former professional peers at Firm X, to refrain from making representations to clients that were designed to injure Firm X's professional standing and undermine its client relationships.
Ongoing from the date of departure from Firm X
Engineer A Collegial Obligation Non-Disparagement — Firm X Former Colleagues
Engineer A made disparaging capacity representations to Firm X's clients while simultaneously soliciting those clients for Firm Y
Covert Competitor Disparagement Prohibition Constraint
Engineer A was prohibited from making disparaging representations about Firm X's professional capacity to Firm X's clients in a manner structured to damage Firm X's professional reputation and prospects, particularly where Engineer A stood to benefit competitively from the damage caused.
NSPE Code of Ethics Section III.7; BER Case No. 77-11
Engineer A Competitor Reputation Injury Predictive Disparagement Violation
Engineer A contacted Firm X's existing clients and made representations about Firm X's future inability to perform, using Engineer C's anticipated departure as the basis for the prediction, in order to solicit those clients for Firm Y.
Competitor Reputation Injury Through Predictive Disparagement Prohibition Obligation
Engineer A was obligated to refrain from making predictive representations to Firm X's clients that Firm X would be 'hard pressed' to perform successfully on its projects, as such representations were designed to injure Firm X's professional reputation and undermine client confidence for competitive gain.
Upon initiating contact with Firm X's clients after departure
Engineer A Competitor Reputation Injury — Firm X Capacity Statements
Engineer A made statements to Firm X's clients that Firm X would be 'hard pressed' to perform successfully — statements designed to injure Firm X's professional reputation and prospects in order to gain competitive advantage for Firm Y
Competitor Reputation Injury Prohibition Constraint
Engineer A's statements to Firm X's clients implying Firm X would be unable to fulfill its professional obligations constituted an attempt to injure, maliciously or falsely, the professional reputation, prospects, practice, or employment of Firm X's engineers, in violation of NSPE Code Section III.7.
the NSPE Code of Ethics clearly states that... engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers
Engineer A has made at least one statement to the clients of Firm X stating or implying that Firm X might be incapable of fulfilling its professional obligations to them because of Engineer C's pending departure
Engineer A Competitor Reputation Injury — Firm X Client Solicitation Disparagement
Engineer A solicited Firm X's clients by disparaging Firm X's capacity to perform its existing projects
Engineer A was prohibited from making representations to Firm X's clients that Firm X would be 'hard pressed' to perform successfully, as such representations constitute an attempt to injure Firm X's professional reputation, prospects, and practice through false or misleading statements made in a competitive context where Engineer A stood to benefit directly from the reputational damage caused.
Engineer A Continuing Post-Termination Loyalty Obligation — Firm X
From Engineer A's departure from Firm X onward; duration indeterminate
Engineer A, a professional engineer working for a small private practice firm, leaves the employment of Firm X
Continuing Post-Termination Loyalty Obligation State
Engineer A's residual ethical obligations to Firm X following departure
Not yet terminated — continuing obligations persist
Termination of Engineer A's employment at Firm X
Engineer A Departing Engineer Client Solicitation Honesty
Departing Engineer Client Solicitation Honest Representation Capability
Engineer A required the capability to conduct his solicitation of Firm X's clients honestly — accurately representing Firm X's capabilities and refraining from false or misleading statements about Firm X's capacity to perform — a capability he failed to exercise.
Engineer A's post-departure client solicitation involved dishonest representations about Firm X's capacity to perform rather than honest promotion of Firm Y's merits.
Failure: Engineer A solicited Firm X's clients using misrepresentations about Firm X's ability to perform, rather than competing on the honest merits of Firm Y's capabilities.
Engineer A Departing Engineer Client Solicitation Honesty Failure
Engineer A failed to exercise the capability to conduct solicitation of Firm X's clients with full honesty, instead making misrepresentations about Firm X's capacity to perform that were grounded in a departure he himself caused.
Engineer A's solicitation of Firm X's clients after departing to form Firm Y
Failure: Engineer A solicited Firm X's clients with misleading representations about Firm X's future capacity, violating the honesty standard applicable to competitive solicitation.
the NSPE Code of Ethics clearly states that engineers shall not attempt to obtain employment or advancement or professional engagements by untruthfully criticizing other engineers
Engineer A Departing Engineer Client Solicitation Honesty Obligation
Engineer A used knowledge of Engineer C's anticipated departure — knowledge he possessed because he had recruited Engineer C — to make representations to Firm X's clients designed to undermine confidence in Firm X and divert business to Firm Y.
Departing Engineer Former Employer Client Solicitation Honesty Obligation
Engineer A was obligated to conduct any solicitation of Firm X's clients honestly and without misrepresentation of Firm X's capabilities, refraining from using insider knowledge of Engineer C's departure as a basis for misleading representations about Firm X's capacity.
During the period of competitive client solicitation following departure from Firm X
Engineer A Departing Engineer Starting Competing Firm
{'license': 'Professional Engineer', 'firm_founded': 'Firm Y', 'prior_employer': 'Firm X', 'representation_made': 'Would not compete with Firm X'}
Left Firm X after representing he would not compete, then started Firm Y, solicited Firm X's employee Engineer C, and made disparaging misrepresentations to Firm X's clients to divert business to Firm Y.
{'type': 'competitor', 'target': 'Firm X'}
{'type': 'former_employer', 'target': 'Firm X'}
{'type': 'recruiter', 'target': 'Engineer C'}
{'type': 'soliciting_competitor', 'target': 'Firm X Clients'}
Departing Engineer Starting Competing Firm
Engineer A has contacted Firm X's clients and is making representations that... Firm X will be 'hard pressed' to perform successfully
Engineer A Departure Representation Scope Accuracy — One-Person Firm Misrepresentation
Engineer A represented he would start a one-person firm, then within one month recruited Firm X's employee Engineer C to join Firm Y, contradicting the one-person firm representation
Departure Representation Scope Accuracy Constraint
Engineer A was constrained to ensure that his representation of starting a 'one-person firm' accurately reflected his genuine intentions at departure; his subsequent recruitment of Engineer C within one month indicates the representation did not accurately reflect his actual plans, constituting a violation of the departure representation accuracy constraint.
NSPE Code of Ethics — Non-Deception Provisions; NSPE Code Section III.2 on truthful statements
At the time of departure from Firm X and throughout the period of reliance by Firm X on the representation
A month after Engineer A departs from Firm X, Engineer B, a principal in Firm X learns that Engineer A has contacted one of Firm X's employees, Engineer C, and offered her a position with Firm Y.
Engineer A Employment Terminated — Firm X
From Engineer A's departure from Firm X onward
Engineer A's employment relationship with Firm X
Not terminated — post-employment state persists with continuing obligations
Engineer A Engineer Statement Professional Bond Integrity — Departure Representation
The BER found that Engineer A's statement, while not ethically required, must be assumed to have been intended as a truthful and honest statement of fact — and that his subsequent actions were in direct conflict with it
Engineer Statement Professional Bond Integrity Constraint
Engineer A's departure statement that he would start a one-person firm and not compete with Firm X constituted a professional bond — a binding representation of his integrity — that he was required to honor, and his subsequent competitive actions violated the professional bond integrity standard.
NSPE Code of Ethics provisions on honesty and truthfulness
While Engineer A was not ethically obligated to make this statement, one must assume that Engineer A intended the statement to be a truthful and honest statement of fact
From the time of Engineer A's departure statement through his subsequent competitive conduct
Engineer A's statement clearly could have a significant impact on the manner in which Firm X treated Engineer A during Engineer A's departure from Firm X
it is apparent that Engineer A's subsequent actions were in direct conflict with his statement
Engineer A Explicit Non-Competition Representation Binding Constraint
Engineer A departed Firm X representing he would start a one-person firm and not compete, then immediately recruited Firm X's employee and solicited Firm X's clients
Explicit Non-Competition Representation Binding Constraint
Engineer A's explicit representation to Firm X that he would start a one-person firm and would not compete with Firm X ethically bound him to refrain from direct competition with Firm X, regardless of the absence of a formal written non-compete agreement.
NSPE Code of Ethics — Non-Deception and Truthfulness Provisions; BER accumulated doctrine on post-employment competition
From the date of departure from Firm X onward, for a period consistent with the reasonable reliance period created by the representation
Engineer A Explicit Non-Competition Representation Binding — Departure Statement
Engineer A made a clear departure representation that he would not compete with Firm X, which the BER found could have significantly affected how Firm X treated him during departure — his subsequent actions were in direct conflict with this statement
Engineer A's explicit statement at departure that he would start a one-person firm and would not compete with Firm X constituted a binding professional representation that he was ethically obligated to honor — his subsequent competitive actions directly contradicted this representation.
NSPE Code of Ethics provisions on truthfulness and non-deception; NSPE BER Case analysis
Engineer A made it clear at the time of his departure from Firm X that he was going to start his own one-person consulting firm, Firm Y, and that he would not be in the position of competing with Firm X
Engineer A False Capacity Disparagement to Firm X Clients — Discussion Reaffirmation
From Engineer A's solicitation communications to Firm X's clients through the Board's ethical evaluation
Former Employer Client Solicitation with Capacity Disparagement State
Engineer A's statements to Firm X's clients implying Firm X cannot fulfill its obligations due to Engineer C's departure
engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers
engineers shall not attempt to obtain employment or advancement or professional engagements by untruthfully criticizing other engineers
Engineer A's statement to Firm X clients that Firm X would be 'hard pressed' to perform successfully due to Engineer C's pending departure
Engineer A Former Employer Capacity Predictive Disparagement — Firm X Clients
Engineer A made statements to Firm X's clients implying Firm X might be incapable of fulfilling its professional obligations due to Engineer C's pending departure — a departure Engineer A himself caused by recruiting Engineer C
Former Employer Capacity Predictive Disparagement Prohibition Constraint
Engineer A was prohibited from making predictive representations to Firm X's clients that Firm X would be 'hard pressed' to perform successfully on its projects due to Engineer C's pending departure — such predictive capacity disparagement violated NSPE Code Section III.7.
NSPE Code of Ethics Section III.7; NSPE BER Case analysis
the NSPE Code of Ethics clearly states that (a) engineers shall not attempt to obtain employment or advancement or professional engagements by untruthfully criticizing other engineers, and that (b) engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers
Engineer A Former Employer Capacity Predictive Disparagement — Hard Pressed Representation
Engineer A told Firm X's clients that because Engineer C was leaving, Firm X would be 'hard pressed' to perform successfully and that clients should hire Firm Y instead
Engineer A was prohibited from making predictive representations to Firm X's clients that Firm X would be 'hard pressed' to perform successfully on its projects, as such forward-looking capacity disparagement constitutes an attempt to injure Firm X's professional reputation, prospects, and practice through misleading predictive statements.
NSPE Code of Ethics Section III.7 — Prohibition on maliciously or falsely injuring professional reputation; NSPE Code Section II.3 — Truthfulness; BER Case No. 77-11
Engineer A Former Employer Client Solicitation with Capacity Disparagement
From shortly after Engineer A's departure, following the solicitation of Engineer C, through Engineer B's discovery and beyond
Engineer A's solicitation of Firm X's clients using misleading representations about Firm X's capacity
Not yet terminated — solicitation campaign ongoing at time of case
Engineer A contacts Firm X's clients and represents that Firm X will be 'hard pressed' to perform due to Engineer C's anticipated departure
Engineer A Former Employer Employee Solicitation — Engineer C
From approximately one month after Engineer A's departure, when contact with Engineer C was made, through Engineer B's discovery and beyond
Engineer B, a principal in Firm X learns that Engineer A has contacted one of Firm X's employees, Engineer C, and offered her a position with Firm Y
Former Employer Employee Solicitation State
Engineer A's solicitation of Engineer C from Firm X to join Firm Y
Not yet terminated — solicitation outcome (Engineer C's decision) pending
Engineer A contacts Engineer C and offers her a position with Firm Y
Engineer A Improper Competitive Method — Client Solicitation Through Capacity Disparagement
Engineer A sought to obtain Firm X's clients by making disparaging capacity representations rather than competing on merit
Improper Competitive Method Prohibition Constraint
Engineer A was prohibited from attempting to obtain professional engagements from Firm X's clients through the improper method of disparaging Firm X's capacity to perform, rather than competing on the demonstrated merits of Firm Y's capabilities.
NSPE Code of Ethics Section III.6 — Improper competitive methods; BER Case No. 77-11
Engineer A Non-Competition Representation Fidelity Self-Monitoring
Non-Competition Representation Fidelity Self-Monitoring Capability
Engineer A required the capability to monitor his own conduct against his explicit representation to Firm X that he would start a one-person firm and not compete — a capability he failed to exercise when he recruited Engineer C and solicited Firm X's clients.
Engineer A departed Firm X after representing he would not compete, then immediately began competing by recruiting staff and soliciting clients.
Failure: Engineer A acted contrary to his non-competition representation by recruiting Firm X's employee and soliciting Firm X's clients within one month of departure.
Engineer A Non-Competition Representation Fidelity Self-Monitoring Failure
Engineer A failed to exercise the capability to continuously monitor his own conduct against his explicit representation that he would operate only as a one-person firm and not compete with Firm X, failing to recognize that recruiting Engineer C and soliciting Firm X's clients contradicted that representation.
Engineer A's post-departure competitive conduct against Firm X
Failure: Engineer A made an explicit non-competition representation and then recruited Firm X's employee Engineer C and solicited Firm X's clients with disparaging statements about Firm X's capacity.
Engineer A made it clear at the time of his departure from Firm X that he was going to start his own one-person consulting firm, Firm Y, and that he would not be in the position of competing with Firm X.
it is apparent that Engineer A's subsequent actions were in direct conflict with his statement.
Engineer A Non-Competition Representation Fidelity Violation
Engineer A departed Firm X after representing he would not compete, then within one month began recruiting Firm X's employee Engineer C and soliciting Firm X's clients for his new competing firm Firm Y.
Non-Competition Representation Fidelity Obligation
Engineer A was obligated to honor his explicit representation to Firm X that he would start a one-person firm and would not compete with Firm X, and to refrain from immediately engaging in competitive solicitation of Firm X's clients and staff within one month of departure.
From the date of departure from Firm X through the period covered by the non-competition representation
Engineer A Non-Principal Employee Departure Competitive Conduct Proportionality
The BER specifically noted Engineer A's non-principal status as a factor supporting the permissibility of hiring Engineer C, while still finding his overall conduct fell below ethical standards due to the misrepresentations
Non-Principal Employee Departure Competitive Conduct Proportionality Constraint
Engineer A's status as a non-principal employee (rather than partner or principal) of Firm X was a mitigating factor in assessing the ethical permissibility of his departure and hiring of Engineer C — but this mitigation did not extend to his subsequent misrepresentations to Firm X's clients.
NSPE Code of Ethics; NSPE BER accumulated departure-competition doctrine
Throughout Engineer A's departure from Firm X and establishment of Firm Y
Engineer A Non-Principal Employee Status at Firm X
Throughout Engineer A's tenure at Firm X and relevant to ethical evaluation of his post-departure conduct
Engineer A's conduct in hiring Engineer C is appropriate and within the bounds of what would be considered reasonable, particularly since Engineer A was an employee of Firm X and not a partner or principal of the firm
Non-Principal Employee Departure Mitigating Status State
Engineer A's organizational role at Firm X prior to departure
Not terminated — status is a historical fact relevant to ethical evaluation
Engineer A's departure from Firm X as an employee (not partner or principal) to establish Firm Y
Engineer A Post-Employment Non-Compete Misrepresentation
From Engineer A's departure from Firm X through discovery by Engineer B approximately one month later and beyond
Post-Employment Non-Compete Misrepresentation State
Engineer A's conduct relative to Firm X following departure
Not yet terminated — state persists as Engineer A continues competitive activities
A month after Engineer A departs from Firm X, Engineer B, a principal in Firm X learns that Engineer A has contacted one of Firm X's employees
Engineer A's departure from Firm X after representing he would not compete with Firm X, followed by establishment of Firm Y as a competing practice
Engineer A Post-Employment Non-Compete Misrepresentation — Discussion Reaffirmation
From Engineer A's departure statement through his establishment of Firm Y and solicitation of Firm X's clients and employees
Engineer A's stated intention not to compete with Firm X versus his subsequent competitive actions
Engineer A's subsequent actions were in direct conflict with his statement
Engineer A's explicit representation at departure that he would not compete with Firm X, followed by establishment of competing Firm Y
Engineer A Predictive Competitor Incapacity Disparagement
Predictive Competitor Incapacity Disparagement Recognition and Avoidance Capability
Engineer A failed to exercise the capability to recognize that his predictive representation to Firm X's clients — that Firm X would be 'hard pressed' to perform successfully because of Engineer C's pending departure — constituted impermissible disparagement of a competitor's professional reputation through speculative future-state predictions.
Engineer A's competitive solicitation of Firm X's clients
Failure: Engineer A made predictive representations to Firm X's clients about Firm X's future inability to perform, based on the anticipated departure of Engineer C.
Engineer A Predictive Competitor Incapacity Disparagement Avoidance
Engineer A required the capability to recognize that predicting Firm X would be 'hard pressed' to perform on its projects — based on Engineer C's anticipated departure — constituted impermissible predictive disparagement of a competitor's professional reputation.
Engineer A contacted Firm X's clients with predictive claims about Firm X's inability to perform, using anticipated staff departure as the basis.
Failure: Engineer A made predictive disparaging representations to Firm X's clients that Firm X would be 'hard pressed' to perform successfully.
Engineer A Self-Caused Staff Departure Competitive Exploitation
Self-Caused Staff Departure Competitive Exploitation Prohibition Recognition Capability
Engineer A lacked or failed to exercise the capability to recognize that using Engineer C's anticipated departure — a departure Engineer A himself caused by recruiting her — as a basis for representing to Firm X's clients that Firm X would be 'hard pressed' to perform constituted impermissible exploitation of a competitive disadvantage he himself created.
Engineer A's solicitation of Firm X's clients using Engineer C's anticipated departure as leverage
Failure: Engineer A recruited Engineer C from Firm X and then used her anticipated departure as a basis for disparaging Firm X's capacity to perform to Firm X's clients.
The combination of the departure of Engineer C from Firm X and the hiring of Engineer C by Firm Y, along with the earlier expressed assurances by Engineer A about his intentions in establishing a new firm, give the Board great pause and concern in reviewing the motives and intentions of Engineer A.
Engineer A Self-Caused Staff Departure Competitive Exploitation — Engineer C Recruitment
The combination of Engineer A recruiting Engineer C from Firm X and then using Engineer C's pending departure to tell Firm X's clients that Firm X would be 'hard pressed' to perform compounded the original recruitment with a further act of bad faith
Self-Caused Staff Departure Competitive Exploitation Prohibition Constraint
Engineer A was prohibited from exploiting Engineer C's anticipated departure from Firm X — a departure Engineer A himself caused by recruiting Engineer C — as a basis for making disparaging representations to Firm X's clients about Firm X's capacity to perform.
NSPE Code of Ethics Sections III.6, III.7; NSPE BER Case analysis
The combination of the departure of Engineer C from Firm X and the hiring of Engineer C by Firm Y, along with the earlier expressed assurances by Engineer A about his intentions in establishing a new firm, give the Board great pause and concern in reviewing the motives and intentions of Engineer A
From the time Engineer A recruited Engineer C through his subsequent client solicitation using Engineer C's departure as a disparagement basis
Considering all factors and earlier BER cases on this issue, the Board must conclude that Engineer A's actions fell below the standards of appropriate ethical conduct
Engineer A Self-Caused Staff Departure Competitive Exploitation — Engineer C Recruitment to Client Disparagement
Engineer A recruited Engineer C from Firm X to join Firm Y, then used Engineer C's anticipated departure as the basis for telling Firm X's clients that Firm X would be unable to perform its projects
Engineer A was prohibited from recruiting Engineer C away from Firm X and then using Engineer C's anticipated departure as the factual predicate for disparaging representations to Firm X's clients that Firm X would be 'hard pressed' to perform successfully — because Engineer A was the proximate cause of the staffing disruption he was exploiting as a competitive weapon.
NSPE Code of Ethics Section III.7 — Prohibition on injuring professional reputation; NSPE Code Section III.6 — Improper competitive methods; BER Case No. 77-11
From the date Engineer A recruited Engineer C through the period of client solicitation
Engineer A Self-Caused Staff Departure Exploitation Recognition
Engineer A required the capability to recognize that recruiting Engineer C from Firm X and then using Engineer C's anticipated departure as a basis for soliciting Firm X's clients constituted impermissible exploitation of a competitive disadvantage he himself caused.
Engineer A offered Engineer C a position at Firm Y, then used Engineer C's anticipated departure as a competitive solicitation tool against Firm X's clients.
Failure: Engineer A recruited Engineer C and then immediately used Engineer C's anticipated departure to solicit Firm X's clients by claiming Firm X would be 'hard pressed' to perform.
Engineer A Self-Caused Staff Departure Non-Exploitation Violation
Engineer A first recruited Engineer C away from Firm X, then used Engineer C's anticipated departure as the factual predicate for telling Firm X's clients that Firm X would be 'hard pressed' to perform, compounding the ethical violation by exploiting a self-caused diminishment.
Self-Caused Staff Departure Non-Exploitation Competitive Solicitation Prohibition Obligation
Engineer A was obligated to refrain from using Engineer C's anticipated departure from Firm X — a departure Engineer A himself caused by recruiting Engineer C — as a basis for making disparaging representations to Firm X's clients about Firm X's capacity to perform.
From the time Engineer A offered Engineer C a position through the period of client solicitation
Engineer A Technically True Misleading Disparagement
Technically True Misleading Statement Recognition and Avoidance Capability
Engineer A failed to exercise the capability to recognize that his statement about Firm X being 'hard pressed' to perform — while potentially grounded in the factual premise of Engineer C's departure — was nonetheless materially misleading because it omitted the critical context that Engineer A himself caused that departure by recruiting Engineer C.
Engineer A's competitive solicitation communications to Firm X's clients
Failure: Engineer A made statements to Firm X's clients that were artfully misleading — grounded in a factual premise (Engineer C's departure) while omitting the critical context that Engineer A caused that departure.
Engineer A Third-Party Reputation Non-Impairment Client Solicitation
Third-Party Reputation Non-Impairment in Business Negotiation Capability
Engineer A required the capability to recognize that his representations to Firm X's clients about Firm X's capacity to perform implicated Firm X's and its engineers' professional reputation, and to refrain from such reputation-impairing misrepresentations out of collegial obligation.
Engineer A's client solicitation communications directly impaired the professional reputation of Firm X and its remaining engineers.
Failure: Engineer A made representations to Firm X's clients that impaired Firm X's professional reputation by predicting its inability to perform on projects.
Engineer A Three-Party Departure Interest Balancing Constraint
Engineer A departed Firm X, established Firm Y, recruited Engineer C from Firm X, and solicited Firm X's clients using disparaging misrepresentations about Firm X's capacity — failing to conduct competition in a manner fair and equitable to all parties
Three-Party Engineer Departure Interest Balancing Constraint
Engineer A was required to balance the interests of Firm X's clients (right to choose their firm), his own individual initiative rights, and Firm X's goodwill interests when departing and competing — his misrepresentations to clients about Firm X's capacity violated this balancing obligation.
NSPE BER Cases 77-11, 79-10, 86-5, 97-2; NSPE Code of Ethics Sections III.6, III.7
the Board noted the need to balance (1) the interests of the client in retaining the firm of its choice; (2) the interests of the individually employed engineers; and (3) the interests of the firm and its interest in maintaining business goodwill with its clients
From the time of Engineer A's departure from Firm X through his competitive solicitation of Firm X's clients
Engineer A Voluntary Representation Truthfulness Self-Binding Failure
Voluntary Representation Truthfulness Self-Binding Recognition Capability
Engineer A lacked or failed to exercise the capability to recognize that his voluntary departure statement — that he would start a one-person firm and not compete with Firm X — created an ethical self-binding obligation of truthfulness, and that his subsequent actions in recruiting Engineer C and soliciting Firm X's clients directly contradicted that voluntary representation.
Engineer A's departure from Firm X and establishment of competing Firm Y
Failure: Engineer A made a voluntary non-competition representation at departure and then acted in direct contradiction to it by recruiting Firm X's employee and soliciting Firm X's clients with disparaging representations.
While Engineer A was not ethically obligated to make this statement, one must assume that Engineer A intended the statement to be a truthful and honest statement of fact.
Engineer A's statement clearly could have a significant impact on the manner in which Firm X treated Engineer A during Engineer A's departure from Firm X.
However, it is apparent that Engineer A's subsequent actions were in direct conflict with his statement.
Engineer A contacting Engineer C with a job offer before Engineer A contacting Firm X's clients with misrepresentations
Engineer A contacting Firm X's clients with misrepresentations before Engineer C's actual departure from Firm X
Engineer A's departure from Firm X before Engineer A contacting Engineer C with a job offer
Engineer A's departure from Firm X before Engineer A contacting Firm X's clients with misrepresentations
Engineer A's departure from Firm X before Engineer A's representation about starting a one-person firm and not competing
Engineer A's representation about not competing before Engineer A's solicitation of Firm X's clients for Firm Y
Engineer A's representation about not competing equals Engineer A's departure from Firm X
Engineer B Competitive Interest Non-Subordination Reporting Duty
Competitive Interest Non-Subordination of Reporting Duty Self-Monitoring Capability
Engineer B required the capability to ensure that his direct competitive interest in the outcome — as a firm principal losing clients and staff to Engineer A — did not suppress his legitimate professional duty to report Engineer A's misconduct to the licensing board.
Engineer B's competitive relationship with Engineer A created a risk that competitive discomfort about appearing self-interested might suppress a legitimate reporting obligation.
Engineer B faced the risk that the appearance of competitive self-interest might cause him to withhold a legitimate misconduct report or that others might discount the report due to his competitive position.
Engineer B, a principal in Firm X learns that Engineer A has contacted one of Firm X's employees, Engineer C, and offered her a position with Firm Y.
Engineer B learns that Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully
Engineer B Competitive Motivation Disclosure in Peer Misconduct Reporting — Engineer A Report
Engineer B holds a direct competitive interest in the outcome of any complaint against Engineer A, as Engineer A is actively soliciting Firm X's clients
Competitor Misconduct Reporting Competitive Interest Neutrality Constraint
Engineer B, as a direct competitor of Engineer A whose clients are being solicited, was constrained to disclose to the licensing board any competitive relationship with Engineer A when filing a misconduct report, and was prohibited from allowing competitive self-interest to either drive the report as harassment or suppress the report of genuine violations.
NSPE Code of Ethics — Honest professional conduct; Competitor Misconduct Reporting Competitive Interest Neutrality Constraint doctrine
At the time of filing any misconduct report with the licensing board
Engineer B learns that Engineer A has contacted Firm X's clients and is making representations
Engineer B Competitive Motivation Disclosure — Licensing Board Report
Engineer B holds a direct competitive interest in Engineer A's misconduct — Engineer A is soliciting Engineer B's firm's clients — requiring transparency about this motivation when reporting to the licensing board
Engineer B, as a direct competitor of Engineer A whose clients are being solicited, was required to disclose to the licensing board any competitive interest in the outcome of the complaint and to ensure the reporting decision was grounded in genuine public interest rather than competitive self-interest.
NSPE Code of Ethics; Competitor Misconduct Reporting Competitive Interest Neutrality Constraint doctrine
At the time of and following Engineer B's decision to report Engineer A's misconduct
Engineer B Competitive Peer Misconduct Reporting Motivation Transparency
Engineer B has a direct competitive interest in the outcome of any misconduct report against Engineer A, since Engineer A is actively soliciting Firm X's clients. This competitive interest does not extinguish the reporting duty but requires transparency about the relationship.
Competitive Peer Misconduct Reporting Motivation Transparency Obligation
Engineer B, as a direct competitor of Engineer A whose clients are being solicited, was obligated to report Engineer A's misconduct to the licensing authority while being transparent about the competitive relationship, ensuring the report is factually grounded and not merely a competitive tactic.
Upon learning of Engineer A's misconduct and before or at the time of filing any report
Engineer B learns that Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully on its projects
Engineer B Competitive Peer Misconduct Reporting Motivation Transparency Application
Competitive Peer Misconduct Reporting Motivation Transparency Self-Application Capability
Engineer B, as a direct competitor of Engineer A whose clients were being solicited, needed to exercise the capability to recognize the appearance of competitive motivation in reporting Engineer A's misconduct, to transparently disclose that competitive relationship, and to ensure the report was grounded in professional duty rather than competitive self-interest.
Engineer B's decision whether and how to report Engineer A's misconduct to the licensing board
Engineer B's obligation to report Engineer A's misconduct to the licensing board while acknowledging and disclosing the competitive relationship that creates an appearance of self-interested motivation.
Engineer B, as a direct competitor of Engineer A whose clients are being solicited, was obligated to report Engineer A's misconduct to the licensing board while transparently disclosing the competitive relationship.
{'license': 'Professional Engineer', 'position': 'Principal', 'firm': 'Firm X'}
Principal of Firm X who discovers that former employee Engineer A is soliciting Firm X's staff and making disparaging representations to Firm X's clients to divert business to Firm Y.
{'type': 'discovers_misconduct_of', 'target': 'Engineer A'}
{'type': 'employer_firm', 'target': 'Firm X'}
{'type': 'former_colleague', 'target': 'Engineer A'}
{'type': 'peer', 'target': 'Engineer C'}
Incumbent Firm Principal Discovering Competitor Misconduct
Engineer B, a principal in Firm X learns that Engineer A has contacted one of Firm X's employees, Engineer C
Engineer B Reporting Motivation Purity Self-Assessment Competitive Context
Reporting Motivation Purity Self-Assessment Capability
Engineer B required the capability to examine and confirm that his decision to report Engineer A's misconduct was grounded in professional duty and public interest — rather than competitive self-interest in recovering lost clients or preventing further staff departures — recognizing that his competitive relationship with Engineer A complicated the purity of his reporting motivation.
Unlike the disinterested reporter scenario, Engineer B had a direct competitive stake in the outcome of any misconduct report against Engineer A, requiring heightened self-examination of reporting motivation.
Engineer B's position as a direct competitive victim of Engineer A's misconduct required careful self-examination to ensure reporting was duty-based rather than competitively motivated.
Engineer B Self-Policing Peer Misconduct Reporting Obligation
Engineer B is a principal of Firm X who has direct knowledge of Engineer A's departure representations and subsequent competitive misconduct, placing Engineer B in a position of both competitive interest and professional reporting obligation.
Self-Policing Profession Peer Misconduct Reporting Foundational Duty Obligation
Engineer B, upon learning of Engineer A's misconduct — including the false non-competition representation and the disparaging misrepresentations to Firm X's clients — was obligated to report Engineer A's conduct to the appropriate licensing authority as part of the engineering profession's foundational self-policing duty.
Upon learning of Engineer A's disparaging representations to Firm X's clients
Engineer B Self-Policing Peer Misconduct Reporting — Engineer A Violations
Engineer B is a principal in Firm X who has learned of Engineer A's false representations and disparaging client solicitations
Self-Policing Profession Peer Misconduct Reporting Foundational Duty Constraint
Engineer B, upon learning of Engineer A's misconduct — including the false non-competition representation and the disparaging misrepresentations to Firm X's clients — was constrained by the foundational duty of the self-policing profession to report Engineer A's conduct to the appropriate licensing authority, and could not treat this reporting as optional merely because Engineer B held a competitive interest in the outcome.
NSPE Code of Ethics — Self-policing profession provisions; NSPE Code Section III.2.b on reporting violations
Upon Engineer B's learning of Engineer A's misconduct
Engineer C At-Will Departure Non-Restriction — No Specialized Knowledge No Written Non-Compete
Engineer C held no written non-compete agreement with Firm X and had not acquired specialized knowledge that would restrict competitive employment
Non-Absolute Former Client Loyalty Perpetuity Prohibition Constraint
Engineer C's departure from Firm X to join Firm Y was not ethically prohibited in the absence of a written non-compete agreement and in the absence of specialized knowledge acquired at Firm X that would create a residual constraint on competitive employment — establishing that Engineer C's at-will mobility was ethically permissible under the accumulated BER doctrine on engineer departure and competition.
BER Case No. 77-11; BER Case No. 79-10; BER Case No. 97-2; Engineer Departure and Competition Ethics Standard
At the time of Engineer C's acceptance of Engineer A's offer
Engineer C At-Will Employment Reciprocity Recognition
At-Will Employment Reciprocity Ethical Boundary Recognition Capability
Engineer C needed to exercise the capability to recognize that, in the absence of a written agreement or other restriction, she had the freedom to accept Engineer A's employment offer and move to Firm Y, while also recognizing that this freedom did not suspend her confidentiality obligations regarding Firm X's proprietary information.
Engineer C's consideration of Engineer A's employment offer
Engineer C's evaluation of whether accepting Engineer A's offer was ethically permissible under the at-will employment reciprocity principle, subject to confidentiality constraints.
most engineers understand that in the absence of a written agreement or other restriction, an employed engineer has the freedom to move from one engineering position to another.
Also no formal written agreement between Engineer C and Firm X would address the issue of whether and under what terms Engineer C could compete with Firm X after departing from Firm X.
Engineer C At-Will Employment Symmetry Competitive Mobility Permissibility
Engineer C had no written non-compete agreement with Firm X and had not acquired specialized knowledge that would restrict her ability to work for Firm Y and compete against Firm X
Engineer C was ethically permitted to depart Firm X and join Firm Y in the absence of a written non-compete agreement and without having acquired specialized knowledge that would restrict competition — the at-will employment symmetry principle established this permissibility.
it does not appear that Engineer C has obtained any particular specialized knowledge as an employee of Firm X that would restrict her ability to go to work for Firm Y and eventually compete against Firm X
At the time of Engineer C's departure from Firm X and acceptance of employment with Firm Y
no formal written agreement between Engineer C and Firm X would address the issue of whether and under what terms Engineer C could compete with Firm X after departing from Firm X
Engineer C At-Will Professional Mobility
From Engineer C's decision to depart Firm X through her engagement with Firm Y
in the absence of a written agreement or other restriction, an employed engineer has the freedom to move from one engineering position to another
Engineer C's employment status and freedom to depart Firm X for Firm Y
this is the price that a free society pays in striking a balance between the rights of individual employees and the legitimate business considerations in the employment market
Engineer C's departure from Firm X in the absence of written restriction, mirroring the at-will employment framework
Engineer C Competitive Employment Acceptance Confidentiality Constraint
Engineer C is a current employee of Firm X who has been offered a position at Firm Y by Engineer A. As a licensed professional engineer, her right to accept competitive employment does not override her continuing confidentiality obligations to Firm X.
Competitive Employment Acceptance With Confidentiality Constraint Obligation
Engineer C, upon accepting or considering the offer from Engineer A's Firm Y, was obligated to refrain from disclosing or using any confidential or proprietary information belonging to Firm X in the course of her transition to or employment with Firm Y.
From the time of accepting the offer through the transition and subsequent employment at Firm Y
Engineer C No Specialized Knowledge Restriction
From Engineer C's departure from Firm X through her engagement with Firm Y on competitive work
No Specialized Knowledge Employment Restriction State
Engineer C's post-employment competitive status relative to Firm X
Not terminated within the case facts — restriction-free status persists
it does not appear to be anything under the facts to suggest that Engineer C is engaged in a specific project for which she has gained particular and specialized knowledge that would require Engineer C to gain the consent of Firm X or appropriate clients
Engineer C's departure from Firm X to join Firm Y without having acquired specialized project-specific knowledge
Engineer C No Written Non-Compete Agreement
From Engineer C's departure from Firm X onward
The employment relationship between Engineer C and Firm X
Engineer C's departure from Firm X in the absence of any executed written non-compete or non-solicitation agreement
Engineer C Permissible Competitive Employment Confidentiality Navigation
Permissible Competitive Employment Acceptance With Confidentiality Constraint Navigation Capability
Engineer C required the capability to navigate accepting a position at Firm Y while refraining from disclosing or using any confidential or proprietary information from Firm X in her new role, recognizing the ethical constraints that attach to competitive employment transitions.
Engineer C was offered a position at competing Firm Y by Engineer A, requiring her to navigate the ethical constraints on competitive employment transitions including confidentiality obligations to Firm X.
Engineer C's consideration of Engineer A's offer required navigation of the ethical constraints on using Firm X's confidential information in a competing firm.
{'license': 'Professional Engineer (implied)', 'current_employer': 'Firm X', 'prospective_employer': 'Firm Y'}
Current employee of Firm X who has been offered a position at Firm Y by Engineer A; her anticipated departure is being used by Engineer A as a basis for disparaging Firm X's capabilities to its clients.
{'type': 'current_employer', 'target': 'Firm X'}
{'type': 'peer', 'target': 'Engineer B'}
{'type': 'recruited_by', 'target': 'Engineer A'}
Recruited Former-Employer Staff Engineer
because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully on its projects
Engineer C Specialized Knowledge Competitive Restriction Self-Assessment
Departing Employee Specialized Knowledge Competitive Restriction Self-Assessment Capability
Engineer C needed to exercise the capability to assess whether she had acquired specialized knowledge during her employment at Firm X that would restrict her ability to work for Firm Y and compete against Firm X, correctly determining that no such specialized project knowledge existed that would require Firm X's or clients' consent.
Engineer C's consideration of Engineer A's employment offer from Firm Y
Engineer C's assessment of whether her employment at Firm X involved specialized knowledge triggering competitive restrictions, consistent with the BER 77-11 framework.
Unlike BER Case No. 77-11, it does not appear that Engineer C has obtained any particular specialized knowledge as an employee of Firm X that would restrict her ability to go to work for Firm Y and eventually compete against Firm X.
It should also be noted that there does not appear to be anything under the facts to suggest that Engineer C is engaged in a specific project for which she has gained particular and specialized knowledge that would require Engineer C to gain the consent of Firm X or appropriate clients to perform work for Firm Y.
Engineer Departure Three-Party Interest Balancing — Engineer A / Firm X / Clients
From Engineer A's departure from Firm X through the Board's ethical evaluation of all competitive conduct
Three-Party Engineer Departure Interest Balancing State
The competitive situation created by Engineer A's departure from Firm X and establishment of Firm Y
Board's ethical conclusion regarding Engineer A's conduct
balancing the interests of all parties involved in this matter
the two competing considerations are generally viewed as important positive values that should be encouraged for the benefit of the public as well as the engineering profession as a whole
Engineer A's departure from Firm X, establishment of Firm Y, hiring of Engineer C, and solicitation of Firm X's clients
Engineer Departure and Competition Ethics Standard - Accumulated BER Doctrine
NSPE Board of Ethical Review through accumulated case decisions
NSPE BER Accumulated Doctrine on Engineer Departure and Competition
Engineer Departure and Competition Ethics Standard
NSPE Board of Ethical Review in synthesizing BER Cases 77-11, 79-10, 86-5, and 97-2 to evaluate Engineer A's conduct
Applied as the overarching normative framework for balancing individual engineer initiative, employer goodwill, client rights, and specialized knowledge restrictions when engineers leave firms to compete
Engineering Business-Profession Duality Integrity — Departure Scenario Context
Engineer A's establishment of Firm Y as a competing engineering business
The Board acknowledged that establishing an independent engineering business is a legitimate and encouraged professional aspiration, but that the business pursuit must be conducted within professional ethical constraints — Engineer A's departure to establish Firm Y was legitimate in its business dimension, but his conduct in soliciting clients through disparagement violated the professional integrity dimension that constrains how business competition is conducted
The duality principle explains why the Board did not condemn Engineer A's departure or business formation per se, while still finding his solicitation conduct unethical — the business right to compete does not override the professional obligation to compete honestly
Engineering Business-Profession Duality Integrity Principle
the Board has sought to strike a fair balance between the basic right of an individual engineer to demonstrate individual initiative and ambition in establishing an independent engineering business entity, coupled with the obligation and responsibility of that engineer to his/her former employer and/or clients.
The business-profession duality is resolved by permitting competition while prohibiting dishonest competitive conduct; the ethical constraints on competition are the price of professional status
These cases are often not easily resolved because the two competing considerations are generally viewed as important positive values that should be encouraged for the benefit of the public as well as the engineering profession as a whole.
Engineering Self-Policing Obligation Invoked By Engineer B
Disinterested Professional Duty to Report Peer Misconduct
Mandatory Competitor Misconduct Reporting Obligation
Engineer B, upon learning of Engineer A's misconduct — including the false non-competition representation and the disparaging misrepresentations to Firm X's clients — has an obligation as a licensed professional engineer to report Engineer A's conduct to the appropriate professional or licensing authority, not merely to protect Firm X's commercial interests but to uphold the profession's integrity
Engineer B's discovery of Engineer A's ethical violations triggers the profession's self-policing obligation; the fact that Engineer B has a competitive interest in the outcome does not eliminate the reporting obligation, though it may affect the framing
Engineer B learns that Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully on its projects and that Firm X's clients should hire Firm Y to perform engineering services.
The self-policing obligation applies even when the reporting engineer has a competitive interest; the obligation is grounded in professional duty to the profession's integrity, not in the absence of self-interest
Engineers X Y Z Client-Solicited Departing Staff Engineers
{'license': 'Professional Engineer', 'former_employer': "Engineer A's firm", 'soliciting_party': 'City (municipal client)', 'disclosure_made': True, 'specialized_knowledge_constraint': 'Applicable to projects for which specialized knowledge was gained'}
Engineers X, Y, and Z developed a proposal for Engineer A's firm, were then directly approached by the city to consult independently, disclosed this to Engineer A, resigned, and entered negotiations with the city. The Board found this ethical under a strict reading of the Code, subject to specialized knowledge constraints.
{'type': 'former_employer', 'target': 'Engineer A Firm Principal'}
{'type': 'independent_contract_with', 'target': 'City Municipal Client'}
{'type': 'solicited_by', 'target': 'City Municipal Client'}
Client-Solicited Departing Staff Engineer
Engineers X, Y, and Z disclosed the facts to Engineer A, resigned from the firm, and entered into negotiations with the city
it would be ethical for Engineers X, Y, and Z to agree to a contract for consulting services independent of Engineer A's firm
Engineers X Y Z Specialized Knowledge Competitive Restriction Recognition
Engineers X, Y, and Z needed to exercise the capability to assess whether their specialized knowledge gained in developing the proposal for Engineer A's firm would restrict their ability to contract independently with the city, and to correctly navigate the ethical framework governing that transition.
BER Case 86-5: Engineers X, Y, and Z's decision to accept independent consulting contract with the city
Engineers X, Y, and Z disclosed the facts to Engineer A, resigned from the firm, and entered into negotiations with the city — demonstrating awareness of the need to navigate the specialized knowledge and competitive restriction framework.
Engineers X, Y, and Z disclosed the facts to Engineer A, resigned from the firm, and entered into negotiations with the city.
{'current_service_provider': 'Firm X', 'solicited_by': 'Engineer A / Firm Y'}
Existing clients of Firm X who are contacted by Engineer A with misleading representations about Firm X's ability to perform, and are solicited to transfer their business to Firm Y.
{'type': 'current_engineer', 'target': 'Firm X'}
{'type': 'prospective_client_of', 'target': 'Firm Y'}
{'type': 'solicited_by', 'target': 'Engineer A'}
Engineering Services Client Targeted by Competitor Disparagement
Firm X Clients Receive False Information
Firm X Conflict of Interest State — Engineer A Competitive Conduct
From Engineer B's discovery of Engineer A's activities onward
Firm X's position as a firm whose former employee is actively competing against it using insider knowledge and misrepresentation
Engineer B learns that Engineer A has contacted Firm X's employee and clients in a competitive and disparaging manner
Firm X Incumbent Consulting Engineer Under Contract
{'firm_type': 'Small private practice engineering firm', 'status': 'Incumbent provider under active client relationships'}
Firm X is the incumbent engineering service provider to its clients, currently under active service relationships, whose capability and continuity are being misrepresented by Engineer A to divert clients to Firm Y.
{'type': 'serves', 'target': 'Firm X Clients'}
{'type': 'subject_of_disparagement_by', 'target': 'Engineer A'}
Incumbent Consulting Engineer Under Contract
Firm X will be 'hard pressed' to perform successfully on its projects
{'firm_type': 'Engineering consulting firm', 'situation': 'Staff departure and client disparagement by former employee'}
Firm X is the incumbent engineering firm from which Engineer A and Engineer C departed, and whose clients were targeted by Engineer A's disparaging statements. The firm's business goodwill and ability to perform its contractual obligations are at the center of the ethical dispute.
{'type': 'former_employer_of', 'target': 'Engineer A'}
{'type': 'former_employer_of', 'target': 'Engineer C'}
{'type': 'service_provider_to', 'target': 'Firm X Clients'}
Engineer A made it clear at the time of his departure from Firm X
Firm X Incumbent Firm Competitor Misconduct Reporting Assessment
Competitor Misconduct Reporting Threshold Assessment Capability
Firm X, through Engineer B, required the capability to assess whether Engineer A's conduct — including the false non-competition representation and the disparaging misrepresentations to clients — met the threshold for formal misconduct reporting to the licensing board.
Firm X discovered Engineer A's misconduct involving false representations and competitor disparagement, requiring threshold assessment for formal reporting.
Firm X's discovery of Engineer A's multiple ethical violations required assessment of whether and how to report the misconduct to the appropriate licensing authority.
Free and Open Competition as Engineering Ethics Boundary Condition Contextualizing Engineer A Conduct
While Engineer A has a general right to compete freely in the engineering market — including by starting a new firm and seeking clients — that right operates within ethical boundaries that prohibit false representations, reputation injury, and exploitation of self-caused competitor incapacity; the case illustrates where competitive conduct crosses from permissible market participation into ethical violation
Free competition is the background norm; the ethical analysis identifies which of Engineer A's specific competitive acts fall outside the ethical boundary conditions that constrain how competition may be conducted
Engineer A had represented that he was going to start his own one-person consulting firm, Firm Y, and that he would not be in the position of competing with Firm X. A month after Engineer A departs from Firm X, Engineer B, a principal in Firm X learns that Engineer A has contacted one of Firm X's employees, Engineer C, and offered her a position with Firm Y.
The right to compete freely does not extend to false representations about non-competition, disparaging misrepresentations of competitor capability, or exploitation of self-caused competitor disadvantage
Honesty in Professional Representations Violated By Engineer A Toward Firm X
Engineer A made a representation to Firm X that he would not be competing with Firm X, which was either false at the time of making or became false almost immediately upon departure, as he began direct competitive conduct within one month
The representation of non-competition was a professional representation about Engineer A's future conduct; its almost immediate falsification by Engineer A's actual conduct raises questions about whether the representation was honest when made
Honesty in professional representations applies to representations about one's own future competitive conduct, not only to representations about qualifications; the rapid departure from the stated intent suggests the representation was not made in good faith
Honesty in Professional Representations — Engineer A Non-Competition Statement
Engineer A's departure statement about non-competition
Engineer A's statement at departure that he would start a one-person firm and not compete with Firm X was treated by the Board as a professional representation that Engineer A intended to be truthful; the subsequent competitive conduct violated the honesty norm applicable to professional representations made in the context of an employment transition
Even voluntary representations made in professional contexts carry honesty obligations; the Board's finding that 'one must assume that Engineer A intended the statement to be a truthful and honest statement of fact' establishes that professional honesty norms attach to departure representations regardless of their legal enforceability
The honesty obligation attached to the voluntary representation overrides the general competitive freedom Engineer A would otherwise have had; having made the representation, Engineer A was bound by it as a matter of professional honesty
NSPE Board of Ethical Review; NSPE Code of Ethics
Professional Norms Prohibiting Misrepresentation in Business Dealings
Misrepresentation in Business Dealings Standard
Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully on its projects and that Firm X's clients should hire Firm Y
Engineer A (as obligation bearer); Engineer B (as basis for assessing Engineer A's conduct)
Directly applicable to Engineer A's false or misleading statements to Firm X's clients that Firm X will be 'hard pressed' to perform successfully — a representation designed to divert business by mischaracterizing the former employer's capabilities.
National Society of Professional Engineers
Engineer A (as obligation bearer); Engineer B (as basis for evaluating Engineer A's conduct)
Primary normative authority governing Engineer A's obligations regarding honest representation, fair competition, and professional conduct toward Firm X and its clients after departing the firm.
NSPE Code of Ethics - Canon on Truthful Criticism and Reputation Injury
NSPE Board of Ethical Review in evaluating Engineer A's statements to Firm X's clients
Cited as prohibiting engineers from attempting to obtain employment or advancement by untruthfully criticizing other engineers, and from maliciously or falsely injuring the professional reputation, prospects, practice, or employment of other engineers
Non-Competition Representation Integrity Obligation Violated by Engineer A
Engineer A's departure representation to Firm X
Engineer A's subsequent solicitation of Firm X clients and staff
Engineer A explicitly represented at departure from Firm X that he was starting a one-person firm and would not be in competition with Firm X; this representation created an ethical obligation of fidelity to the stated intent; Engineer A's subsequent direct competitive solicitation of Firm X's clients and staff constituted a violation of professional honesty norms
The representation was not legally binding but created an ethical obligation; the Board found that Engineer A 'intended the statement to be a truthful and honest statement of fact' and that his subsequent actions were 'in direct conflict with his statement'
The voluntary representation of non-competition, once made, constrained Engineer A's subsequent conduct beyond what the general mobility right would otherwise permit; the ethical obligation arose from the representation itself, not from any legal constraint
Non-Competition Representation Integrity Violated By Engineer A
Engineer A explicitly represented to Firm X that he would start a one-person firm and would not compete with Firm X, then within one month began recruiting Firm X's staff and soliciting Firm X's clients for his new competing firm Firm Y
The explicit pre-departure representation of non-competition created an ethical obligation of fidelity that Engineer A violated by immediately engaging in direct competitive conduct against Firm X — soliciting both staff and clients — without any disclosed change of intent
While engineers have a general right to compete freely, that right is constrained by prior explicit representations of non-competition; the ethical violation lies not in the competition itself but in the breach of the stated representation that induced Firm X's reliance
Prohibition on Reputation Injury Through Competitive Critique Violated By Engineer A
Engineer A contacted Firm X's existing clients and made representations designed to injure Firm X's professional prospects by suggesting Firm X would be unable to perform its projects successfully, thereby attempting to redirect those clients to his own competing firm Firm Y
Engineer A's representations to Firm X's clients constitute an attempt to injure Firm X's professional reputation and prospects through disparaging competitive critique made while Engineer A stood to benefit directly from Firm X's diminished standing
The prohibition on reputation injury applies even in competitive contexts; free competition does not authorize false or misleading disparagement of a competitor's capability to that competitor's existing clients
Prohibition on Reputation Injury Through Competitive Critique — Engineer A NSPE Code Violation
Engineer A's statements to Firm X clients about Firm X's capacity to perform
The Board cited the NSPE Code provision prohibiting engineers from attempting to injure, maliciously or falsely, the professional reputation, prospects, practice, or employment of other engineers as directly applicable to Engineer A's statements to Firm X's clients about Firm X's alleged incapacity
The Code provision operates independently of the non-competition representation and specialized knowledge constraints; even if Engineer A had made no prior representation about non-competition, his false or misleading statements about Firm X's capacity would independently violate the reputation injury prohibition
Free competition does not authorize false or misleading statements about competitors; the reputation injury prohibition sets the ethical floor below which competitive conduct may not fall regardless of the competitive context
Was it ethical for Engineer A to offer a position to Engineer C?
Did Engineer A's departure representation — that he would operate a one-person consulting firm and would not compete with Firm X — create a binding ethical obligation that constrained his subsequent competitive conduct, and if so, what is the scope and duration of that obligation?
Is Engineer B's motivation for reporting Engineer A's misconduct to a licensing board ethically relevant, and does a competitive interest in the outcome of that report diminish or nullify the self-policing obligation Engineer B otherwise bears?
Even if Engineer A's statements about Firm X being 'hard pressed' were technically accurate at the moment of utterance, does the fact that Engineer A himself caused the condition he is exploiting — by recruiting Engineer C — transform an otherwise permissible competitive statement into an independent ethical violation distinct from simple misrepresentation?
Does Engineer C bear any independent ethical obligation to disclose to Firm X that Engineer A's representations to clients about her departure were made without her knowledge or consent, particularly if those representations materially mischaracterized her intentions or timeline?
Was it ethical for Engineer A to make representations to Firm X’s clients that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be “hard pressed” to perform successfully on its projects and that the clients should hire Firm Y to perform engineering services?
Does the principle of free and open competition — which permits Engineer A to recruit Engineer C and solicit Firm X's clients — conflict with the self-caused incapacity non-exploitation principle when Engineer A uses the very staff departure he engineered as the evidentiary basis for his capacity disparagement of Firm X?
Does the at-will employment symmetry principle — which grants Engineer C full freedom to accept Engineer A's offer — conflict with the client autonomy principle when Engineer A uses Engineer C's anticipated departure as a lever to manipulate client decision-making before Engineer C has actually left or formally committed to leaving?
Does the tripartite interest balancing principle — which requires fair consideration of Engineer A's competitive interests, Firm X's continuity interests, and clients' service interests — conflict with the prohibition on reputation injury through competitive critique when the clients' genuine interest in accurate information about Firm X's capacity could, in principle, justify some form of candid competitive communication?
Does the engineering self-policing obligation invoked by Engineer B conflict with the honesty in professional representations principle when Engineer B's competitive interest in the outcome of a licensing board complaint against Engineer A creates a risk that the reporting act itself becomes a strategic business weapon rather than a good-faith professional duty?
From a deontological perspective, did Engineer A violate a categorical duty of honesty by making representations about Firm X's capacity that he knew — or should have known — were misleading, regardless of whether those representations ultimately harmed Firm X's client relationships?
From a deontological perspective, did Engineer A's voluntary pre-departure representation that he would not compete with Firm X create a binding moral duty — independent of any contractual non-compete agreement — that constrained his subsequent conduct toward Firm X's employees and clients?
From a consequentialist perspective, did Engineer A's strategy of recruiting Engineer C and then leveraging her anticipated departure to disparage Firm X's capacity produce net harm across all affected parties — Firm X, Firm X's clients, Engineer C, and the engineering profession — that outweighed any competitive benefit to Firm Y?
From a virtue ethics perspective, did Engineer A demonstrate the professional character traits of integrity and collegiality when he used insider knowledge of Firm X's staffing structure — acquired during his employment — to engineer a self-fulfilling prediction of Firm X's incapacity and then exploit that prediction in client solicitations?
From a virtue ethics perspective, does Engineer B's decision to report Engineer A's misconduct to the licensing board reflect genuine professional self-policing virtue, or is it compromised by Engineer B's direct competitive interest in suppressing Engineer A's conduct — and does the mixture of motives diminish the ethical quality of the act?
If Engineer A had disclosed to Firm X before departing that he intended to establish a firm that would compete for the same clients and potentially recruit Firm X staff, would his subsequent offer to Engineer C have remained ethically permissible — and would the Board's analysis of the non-compete misrepresentation have changed?
If Engineer C had ultimately declined Engineer A's offer and remained at Firm X, would Engineer A's statements to Firm X's clients about Firm X being 'hard pressed' to perform still constitute an ethical violation — or does the ethical wrong depend on whether the predicted staff departure actually materialized?
If Firm X's clients had independently approached Engineer A and asked him to assess Firm X's capacity to complete ongoing projects — rather than Engineer A proactively soliciting them — would the Board's ethical analysis of his capacity disparagement statements have differed, given the precedent that client-initiated transitions carry mitigating weight?
If Engineer A had recruited Engineer C without making any disparaging statements to Firm X's clients — relying solely on Firm Y's own merits to attract business — would the Board's conclusion on Question 1 have been affected, and would the ethical permissibility of the recruitment have been cleaner given the absence of the self-caused incapacity exploitation dynamic?
Recruiting Firm X Employee (Action 2) → Engineer C Receives Job Offer (Event 3) → Engineer C Accepts Employment Offer (Action 4) → Engineer C's Departure Becomes Known (Event 4)
Self-Caused Incapacity Non-Exploitation Principle Violated By Engineer A
Engineer A first recruited Engineer C away from Firm X, then used Engineer C's anticipated departure — a departure Engineer A himself caused — as the factual predicate for telling Firm X's clients that Firm X would be unable to perform, without disclosing his own causal role in creating that alleged incapacity
Engineer A's conduct represents a compound ethical violation: first causing the condition (Engineer C's departure) and then exploiting that self-caused condition as a competitive weapon against Firm X, with the deceptive omission of his own causal role
Engineer A has contacted one of Firm X's employees, Engineer C, and offered her a position with Firm Y. Soon thereafter, Engineer B learns that Engineer A has contacted Firm X's clients and is making representations that because Engineer C is going to be leaving Firm X to work for Firm Y, Firm X will be 'hard pressed' to perform successfully on its projects.
The right to recruit staff and the right to compete do not extend to using the consequences of one's own competitive conduct as a misleading basis for disparaging a competitor's capability to that competitor's clients
Self-Caused Incapacity Non-Exploitation Principle Violated by Engineer A
Engineer A's recruitment of Engineer C combined with his subsequent client solicitation using Engineer C's departure as justification
Engineer A recruited Engineer C away from Firm X and then used Engineer C's anticipated departure as the basis for telling Firm X's clients that Firm X would be 'hard pressed' to perform — exploiting a condition of incapacity that Engineer A himself had caused, without disclosing his own causal role to the clients being solicited
The combination of acts — recruiting Engineer C and then using her departure as a client solicitation argument — is what the Board found particularly troubling; the self-caused nature of the alleged incapacity transforms what might otherwise be a factual observation into a deceptive misrepresentation by omission of Engineer A's own causal role
The self-caused incapacity exploitation compounded the other violations; the Board cited 'the combination of the departure of Engineer C from Firm X and the hiring of Engineer C by Firm Y, along with the earlier expressed assurances' as giving 'great pause and concern'
Specialized Knowledge Constraint Applied to Engineer C — No Violation Found
Engineer C's departure from Firm X to join Firm Y
The Board applied the specialized knowledge doctrine from BER Case No. 77-11 to Engineer C's situation and found no violation because Engineer C had not gained particular and specialized knowledge on any specific project at Firm X that would require consent before working for Firm Y
The specialized knowledge constraint is project-specific and knowledge-specific; general professional experience and competence developed during employment does not trigger the consent requirement — only knowledge that is particular to specific projects and would give the departing engineer an unfair advantage on substantially similar work
Absence of specialized project-specific knowledge meant the default mobility right governed; no consent from Firm X or its clients was required
Also, no formal written agreement between Engineer C and Firm X would address the issue of whether and under what terms Engineer C could compete with Firm X after departing from Firm X.
there does not appear to be anything under the facts to suggest that Engineer C is engaged in a specific project for which she has gained particular and specialized knowledge that would require Engineer C to gain the consent of Firm X or appropriate clients to perform work for Firm Y.
Technically True But Misleading Statement Prohibition Violated By Engineer A
Engineer A's representation that Firm X would be 'hard pressed' to perform because Engineer C was leaving may have been technically grounded in a true fact (Engineer C's anticipated departure) but was crafted to create a false overall impression — that Firm X was objectively incapable — while omitting that Engineer A himself was the cause of the departure and that Firm X's actual capacity was unknown to Engineer A
The ethical standard is not whether individual facts cited are true but whether the overall impression conveyed is accurate; Engineer A's selective framing created a materially false impression of Firm X's incapacity
Technically True But Misleading Statement Prohibition
Even if Engineer C's departure was a true anticipated fact, using it to imply Firm X's general incapacity without full context violates the prohibition on technically-true-but-misleading statements
Tripartite Interest Balancing Applied to Engineer A Departure Scenario
The Board evaluated Engineer A's conduct by balancing: (1) Firm X's clients' interest in retaining their chosen engineering firm; (2) Engineer A's and Engineer C's individual interests in career mobility and establishing independent practice; and (3) Firm X's interest in maintaining business goodwill — concluding that while Engineer A's offer to Engineer C was permissible, his disparaging representations to clients fell below ethical standards because they improperly manipulated all three interests simultaneously
The tripartite balancing framework reveals that Engineer A's conduct was not uniformly unethical: the employment offer to Engineer C was permissible under the individual engineer mobility interest, but the disparaging client solicitation improperly exploited the client interest dimension to serve Engineer A's personal business interest at Firm X's expense
Tripartite Interest Balancing in Engineer Departure Scenarios
The Board resolved the tension by disaggregating Engineer A's conduct into separate acts, applying the tripartite framework to each, and finding that the employment offer passed ethical scrutiny while the client disparagement failed it