Attorney-Directed Confidentiality Non-Override Violated By Engineer A Compliance
Attorney's confidentiality instruction regarding structural defect findings
Imminent structural danger to building tenants
Engineer A is instructed by the owner's attorney to maintain confidentiality over discovered structural defects; Engineer A complies; this compliance violates the principle that attorney-directed confidentiality cannot override the engineer's imminent safety disclosure obligation
The attorney's instruction attempts to invoke attorney-client confidentiality to suppress Engineer A's safety findings; this principle establishes that such an instruction cannot legally or ethically bind the engineer when the findings constitute an immediate threat to building occupants
Engineer A Current Case Attorney-Directed Confidentiality-Bound Safety-Discovering Engineer
Attorney-Directed Confidentiality Non-Override of Imminent Structural Safety Disclosure
Engineer A is told he must maintain this information as confidential as it is part of a lawsuit. Engineer A complys with the request of the attorney.
Attorney-directed confidentiality does not override the imminent safety disclosure obligation; Engineer A's compliance is an ethical violation
Engineer A complys with the request of the attorney.
Engineer A discovers serious structural defects in the building which he believes constitute an immediate threat to the safety of the tenants.
Upon reporting the findings to the attorney, Engineer A is told he must maintain this information as confidential as it is part of a lawsuit.
Attorney-Directed Confidentiality Non-Override — Imminent Structural Danger Current Case
Engineer A's response to attorney's confidentiality instruction upon discovering imminent structural danger to tenants
Confidentiality Agreement Non-Supersession of Imminent Danger Disclosure Obligation
The attorney's instruction to Engineer A to maintain confidentiality over the discovered structural defects does not legally or ethically bind Engineer A when those defects constitute an immediate and imminent threat to building tenants — Engineer A had an obligation to make absolutely certain that tenants and public authorities were immediately aware of the dangers.
The attorney-client relationship through which Engineer A was retained does not extend the attorney's confidentiality authority to suppress an engineer's paramount public safety obligation; when structural defects are imminent and life-threatening, the attorney's instruction yields to the engineer's professional duty.
Engineer A's client was the attorney and technically Engineer A had an obligation not to reveal facts, data or other information in a professional capacity without the prior consent of attorney. However, there were valid reasons why Engineer A should have revealed the information directly to the tenants and public authorities.
The attorney's confidentiality instruction is overridden by the engineer's paramount public safety obligation; the engineer must disclose to tenants and public authorities regardless of the attorney's instruction.
Engineer A's client was the attorney and technically Engineer A had an obligation not to reveal facts, data or other information in a professional capacity without the prior consent of attorney.
Engineer A, having become aware of the imminent danger to the structure, had an obligation to make absolutely certain that the tenants and public authorities were made immediately aware of the dangers that existed.
However, there were valid reasons why Engineer A should have revealed the information directly to the tenants and public authorities.
Attorney Confidentiality Instruction Over Immediate Safety Findings
From the moment the attorney instructs Engineer A to maintain confidentiality through Engineer A's compliance with that instruction
Attorney-Directed Safety Concealment in Litigation State
Engineer A's relationship with the owner's attorney regarding discovered structural defects
Not terminated — Engineer A complies with the instruction
Owner's attorney instructing Engineer A that the structural safety findings must be kept confidential as part of the lawsuit
Attorney Current Case Attorney Client Directing Confidentiality
{'case_reference': 'Current case', 'role_in_litigation': 'Retaining attorney for building owner'}
Retained Engineer A directly on behalf of building owner in litigation; instructed Engineer A to maintain confidentiality over discovered structural safety findings; Board found this confidentiality directive did not override Engineer A's paramount obligation to disclose imminent danger.
{'type': 'represents', 'target': 'Building Owner Current Case'}
{'type': 'retains', 'target': 'Engineer A Current Case Attorney-Directed Confidentiality-Bound Safety-Discovering Engineer'}
Attorney Client Directing Confidentiality
Engineer A's client was the attorney and technically Engineer A had an obligation not to reveal facts, data or other information in a professional capacity without the prior consent of attorney
Although Attorney retained Engineer A directly, he did so on behalf and for the benefit of the owner
Attorney Hires Engineer A → Structural Defects Discovered
Attorney Orders Confidentiality of Safety Findings
Attorney Orders Confidentiality of Safety Findings → Safety Threat Remains Undisclosed
BER-82-2 Engineer A Client Confidentiality Breach Without Prior Consent
BER Case 82-2: Engineer A sent an unauthorized carbon copy of the home inspection report to the real estate firm; the Board found this unethical even though Engineer A had no ulterior motive or intent to harm the client.
Benevolent Motive Non-Cure of Unauthorized Client Confidentiality Breach Obligation
Engineer A was obligated to recognize that sending the home inspection report to the real estate firm without client consent constituted an ethical violation regardless of benevolent intent, because the principle of client confidentiality predominates over the engineer's subjective motivation.
although it did not appear from the facts that Engineer A had acted with some ulterior motive or intention to cause the client any harm, the principle of the right of confidentiality on behalf of the client predominated.
At the time of distributing the inspection report
They also complained that Engineer A acted unethically in submitting a copy of the report to others who had not been a party to the agreement for the inspection services.
BER-82-2 Engineer A Unauthorized Home Inspection Report Disclosure to Real Estate Firm
BER Case 82-2: Engineer A performed a home inspection for a prospective purchaser, prepared a written report, and sent an unauthorized carbon copy to the real estate firm representing the seller — without client consent — prejudicing the client's bargaining position.
Altruistic Disclosure Non-Justification for Client Interest Neglect Obligation
Engineer A was obligated to refrain from sending a carbon copy of the home inspection report to the real estate firm without the client's prior consent, recognizing that the absence of an ulterior motive does not render the unauthorized disclosure ethically permissible and that the client confidentiality principle predominates.
Engineer A submitted his report to the client showing that a carbon copy was sent to the real estate firm handling the sale of the residence.
At the time of submitting the inspection report to the client
the Board concluded that Engineer A acted unethically in submitting a copy of the home inspection to the real estate firm representing the owner
BER-84-5 Engineer A Cost-Pressure Safety Recommendation Abandonment
BER Case 84-5: Engineer A was hired for complete engineering services on a potentially dangerous construction project; recommended a full-time on-site project representative; client refused on cost grounds; Engineer A proceeded with the work without the recommended safety measure.
Client Safety Violation Insistence or Project Withdrawal Obligation
Engineer A was obligated to insist that the client authorize a full-time on-site project representative as a condition of proceeding with the potentially dangerous construction project, or to withdraw from the project rather than abandoning the safety recommendation when the client objected on cost grounds.
Engineer A proceeded with the work on the project even though he had recommended that a full-time, on-site project representative should be hired.
Upon client's refusal to authorize the full-time on-site project representative and before proceeding with further work on the project
Engineer A was in violation of Section II.1.a. of the Code.
when costs concerns where raised by the client, Engineer A abandoned the ethical duty and proceeded with the work on the project.
BER-84-5 Engineer A Passive Acquiescence to Client Cost-Driven Safety Override
BER Case 84-5: Engineer A made a safety recommendation, client refused on cost grounds, and Engineer A silently proceeded with the work — treating the client's refusal as a final resolution rather than actively insisting on the safety measure.
Passive Acquiescence to Known Safety Violation Independent Ethical Failure Obligation
Engineer A was obligated to recognize that proceeding with the project after the client refused the safety recommendation — without insisting on the measure or withdrawing — constituted passive acquiescence to a known safety risk, which is an independent ethical failure separate from any failure to report.
Engineer A abandoned the ethical duty and proceeded with the work on the project.
Upon client's refusal and Engineer A's decision to proceed without the recommended safety measure
Engineer A appeared to have acted in a manner that suggests that the primary obligation was not to the public but to the client's economic concerns.
Engineer A did not recognize this primary obligation.
In BER Case 82-2, Engineer A offered home inspection services...
Unlike the facts presented in BER Case 82-2, there is not any conflict or potential conflict of interest that exists between owner and attorney with regard to the information.
the principle of the right of confidentiality on behalf of the client predominated.
Board of Ethical Review to analyze and distinguish the confidentiality obligation
Cited as precedent establishing the principle of client confidentiality in engineering reports; distinguished from the present case on the grounds that no conflict of interest between owner and attorney exists here, thereby limiting the confidentiality obligation and supporting disclosure to tenants and public authorities
Engineer A appeared to have acted in a manner that suggests that the primary obligation was not to the public but to the client's economic concerns. For that reason, Engineer A was in violation of Section II.1.a. of the Code.
Board of Ethical Review as illustrative precedent for the public safety obligation
Cited as precedent establishing that an engineer who abandons a safety recommendation due to client cost concerns violates the primary obligation to protect public safety under Section II.1.a; used analogically to ground the public safety obligation in the present case
BER 82-2: Confidential Information Held — Home Inspection Findings
From completion of inspection and report through unauthorized disclosure
Engineer A performed this service for a client for a fee and prepared a one-page written report
Engineer A's home inspection findings and written report prepared for prospective purchaser client
Unauthorized disclosure to real estate firm
the principle of the right of confidentiality on behalf of the client predominated
Engineer A completing the inspection and preparing the written report for the client
BER 82-2: Unauthorized Third-Party Disclosure of Home Inspection Report
From submission of report with carbon copy to real estate firm through ethical review conclusion
Engineer A submitted his report to the client showing that a carbon copy was sent to the real estate firm handling the sale of the residence
Unauthorized Third-Party Report Disclosure State
Engineer A's home inspection report shared with real estate firm without client consent
Engineer A acted unethically in submitting a copy of the home inspection to the real estate firm representing the owner
The client objected that such action prejudiced their interests by lessening their bargaining position with the owners of the residence
Engineer A sending a carbon copy of the inspection report to the real estate firm representing the property owner
BER 82-2 Good Intention Non-Exculpation Confidentiality Breach — Engineer A
Engineer A performed home inspection for prospective purchaser; submitted report with carbon copy to real estate firm handling the sale without client consent; client objected that this lessened their bargaining position
Good Intention Non-Exculpation for Confidentiality Breach Constraint
Engineer A's absence of ulterior motive or intention to harm the client did not exculpate the ethical violation arising from sending a carbon copy of the home inspection report to the real estate firm without the client's prior consent, establishing that benevolent motivation does not override the client's right of confidentiality.
In concluding that Engineer A acted unethically in submitting a copy of the home inspection to the real estate firm representing the owner, the Board concluded that although it did not appear from the facts that Engineer A had acted with some ulterior motive or intention to cause the client any harm, the principle of the right of confidentiality on behalf of the client predominated.
At the time of submitting the home inspection report with carbon copy to the real estate firm
BER 84-5: Client Cost-Driven Rejection of On-Site Safety Representative
From client's refusal to hire on-site representative through Engineer A's decision to proceed with the project
the client indicated to Engineer A that the project would be too costly if such a representative were hired
Client Cost-Driven Safety Oversight Rejection State
Engineer A's project engagement after client refused to fund on-site project representative
Project completion (ethical violation not remediated during project)
Engineer A appeared to have acted in a manner that suggests that the primary obligation was not to the public but to the client's economic concerns
Engineer A proceeded with the work on the project even though he had recommended that a full-time, on-site project representative should be hired
Client's determination that project would be too costly if a full-time on-site project representative were hired
BER 84-5: Client Relationship Established Between Engineer A and Client
From engagement through project completion
a client planned a project and hired Engineer A to furnish complete engineering services for a project
Professional engagement between Engineer A and client for complete engineering services
Client hired Engineer A to furnish complete engineering services for the project
BER 84-5: Public Safety at Risk from Dangerous Construction Without Oversight
From project commencement without on-site representative through project completion
Because of the potentially dangerous nature of implementing the design during the construction phase, Engineer A recommended to the client that a full-time, on-site project representative should be hired for the project
Construction project with potentially dangerous implementation phase lacking required safety oversight
Project completion (risk persisted throughout without mitigation)
Engineer A's recognition that the construction phase was potentially dangerous and required full-time on-site oversight
BER 84-5 Client Cost-Refusal Withdrawal Trigger — Engineer A
Client refused to fund on-site project representative after reviewing completed project plans and costs; Engineer A proceeded with work rather than withdrawing
Client Cost-Refusal Withdrawal Trigger Constraint
Engineer A was required to withdraw from the project after the client definitively refused to fund the full-time on-site project representative that Engineer A had determined was necessary for public safety during the dangerous construction phase, rather than proceeding with work that facilitated construction to a standard Engineer A had determined to be inadequate.
NSPE Code of Ethics Section II.1.a.; BER Case 84-5
After reviewing the completed project plans and costs, the client indicated to Engineer A that the project would be too costly if such a representative were hired.
From the client's definitive refusal to fund the on-site safety representative
For that reason, Engineer A was in violation of Section II.1.a. of the Code.
BER 84-5 Cost-Driven Safety Recommendation Abandonment — Engineer A
Engineer A recommended full-time on-site project representative for potentially dangerous construction phase; client refused due to cost; Engineer A proceeded with work without insisting on the safety measure
Cost-Benefit Safety Primacy Non-Subordination Constraint
Engineer A was prohibited from subordinating the professionally grounded safety recommendation — requiring a full-time on-site project representative — to the client's cost concerns, and was required to hold the safety standard paramount even when the client refused to fund the recommended oversight measure.
Engineer A, using his best professional judgment, made a recommendation consistent with that obligation. However, when costs concerns where raised by the client, Engineer A abandoned the ethical duty and proceeded with the work on the project.
From the moment the client refused to fund the on-site project representative through project completion
The Board concluded that Engineer A appeared to have acted in a manner that suggests that the primary obligation was not to the public but to the client's economic concerns.
BER Board BER-84-5 BER-82-2 Dual-Precedent Safety-Confidentiality Synthesis
BER Dual-Precedent Safety-Confidentiality Conflict Factual Distinction Synthesis Capability (84-5 and 82-2)
The Board demonstrated the capability to retrieve BER 84-5 and BER 82-2, identify the material factual distinctions between those precedents and the current case, and synthesize a framework recognizing that the natural tension between safety and confidentiality obligations must be resolved by reference to the specific factual context — particularly the presence or absence of a conflict of interest between nominal client and beneficial owner.
Board used both precedents to establish the natural tension between safety and confidentiality obligations, then distinguished the current case from BER 82-2 on the conflict-of-interest ground
Systematic analysis of BER 84-5 (cost-pressure safety abandonment) and BER 82-2 (altruistic confidentiality breach) to frame the confidentiality-safety conflict in the current case and identify the key distinguishing factor (absence of attorney-owner conflict of interest)
Given these two cases, it is clear that there may be facts and circumstances in which the ethical obligation of engineers in protecting the public health and safety conflict with the ethical obligation of engineers to maintain the right of confidentiality in data and other information obtained on behalf of a client.
While we recognize that this conflict is a natural tension which exists within the Code, we think that under the facts of this case, there were reasonable alternatives available to Engineer A which could assist him in averting an ethical conflict.
BER Board Conflict-of-Interest Absence Confidentiality Permissibility Condition Assessment
Conflict-of-Interest Absence Confidentiality Disclosure Permissibility Condition Capability
The Board demonstrated the capability to identify that the absence of a conflict of interest between the attorney (nominal client) and the building owner (beneficial owner) removed the key ethical barrier to disclosure that was present in BER 82-2, making safety disclosure permissible in the current case.
Board analysis establishing that the BER 82-2 violation trigger (conflict of interest between nominal client and beneficial owner) was absent in the current case, permitting safety disclosure
Explicit analysis distinguishing the current case from BER 82-2 on the ground that no conflict of interest existed between attorney and owner, and that the attorney retained Engineer A on behalf of and for the benefit of the owner
Although Attorney retained Engineer A directly, he did so on behalf and for the benefit of the owner. Therefore, the key issue in BER Case 82-2 upon which an ethical violation was found, is absent in this case.
BER Board Licensure-Grounded Superior Knowledge Public Safety Duty Articulation
Licensure-Grounded Superior Technical Knowledge Public Safety Duty Recognition Capability
The Board demonstrated the capability to articulate the dual foundations of the engineer's public safety duty — superior technical knowledge and state licensure — as the basis for the paramount obligation to protect public health and safety.
Board analysis establishing the theoretical foundation for why Engineer A's public safety obligation overrode the attorney's confidentiality instruction
Explicit articulation in the Discussion section of the dual grounding of the public safety obligation in superior technical knowledge and licensure-based duty to the state
This responsibility rests with the recognition that engineers with their education, training and experience possess a level of knowledge and understanding concerning technical matters which is superior to that of the lay public.
It also is rooted in the implicit fact that as individuals who are granted a license by the state to practice, engineers have a duty to engage in practice which is consistent with the interests of the state and its citizenry.
BER Board NSPE Code Section II.1.c. Exception Clause Activation Analysis
NSPE Code Section II.1.c. Public Safety Exception Clause Activation Capability
The Board demonstrated the capability to identify Section II.1.c. as the operative exception clause permitting and requiring disclosure of information obtained in a professional capacity when public health and safety is endangered, and to determine that the exception creates not merely a right but an ethical responsibility to disclose.
Board analysis establishing that Section II.1.c. activated the disclosure obligation in the current case, overriding the attorney's confidentiality instruction
Explicit invocation of Section II.1.c. exception clause and determination that it creates an ethical responsibility — not merely a right — to disclose when public health and safety is endangered
Section II.1.c. makes a clear exception concerning the obligation of engineers not to reveal facts obtained in a professional capacity without the client's consent.
That exception allows the disclosure of such information in cases authorized by the Code or required by law.
We believe that in cases where the public health and safety is endangered, engineers not only have the right but also the ethical responsibility to reveal such facts to the proper persons.
BER Board State Board Rules Safety Disclosure Mandate Awareness
State Board Professional Conduct Safety Disclosure Mandate Awareness Capability
The Board demonstrated awareness that state board rules of professional conduct may independently require safety disclosure by professional engineers, beyond the NSPE Code's permissive authorization, reinforcing the conclusion that Engineer A was obligated to disclose.
Board analysis noting that state board rules may independently require disclosure, providing an additional normative foundation for the safety disclosure obligation beyond the NSPE Code
Explicit reference to state board rules of professional conduct as a potential independent source of mandatory safety disclosure obligation
We also believe that state board rules of professional conduct might require such action by professional engineers.
BER Case 82-2 before current Engineer A case
BER Case 84-5 before current Engineer A case
BER Case 84-5 client cost objection before Engineer A proceeding with project work (BER Case 84-5)
BER Precedent Key Predicate Distinguishability — BER 82-2 vs. Current Case
BER Board analyzed whether BER 82-2's confidentiality violation finding applied to the current case; found the key predicate — conflict of interest between attorney and owner — absent; concluded BER 82-2 did not bar disclosure
BER Precedent Confidentiality Violation Key Predicate Distinguishability Constraint
The BER Board was required to assess whether the key predicate fact of BER 82-2 — the conflict of interest between the client and the third-party recipient of the report — was present in the current case before applying the BER 82-2 violation finding, and upon finding that predicate absent, was required to recognize that BER 82-2 did not support suppression of the structural defect disclosure.
BER Case 82-2 (distinguished); BER Board Discussion
At the time of BER Board analysis of the current case
Therefore, the key issue in BER Case 82-2 upon which an ethical violation was found, is absent in this case.
Benevolent Motive Does Not Cure — BER 82-2 Confidentiality Violation
Engineer A BER 82-2's unauthorized disclosure of home inspection report despite absence of malicious intent
In BER 82-2, the Board found Engineer A's unauthorized disclosure of the home inspection report to the real estate firm unethical even though Engineer A had no ulterior motive or intention to cause the client harm — the absence of malicious intent did not cure the ethical violation of the client's confidentiality right.
Good intentions do not excuse confidentiality violations; the ethical obligation of confidentiality is not contingent on the engineer's subjective intent but on the objective effect of the disclosure on the client's interests.
Board of Ethical Review (BER 82-2 precedent)
Benevolent Motive Does Not Cure Ethical Violation
The absence of malicious intent is noted but does not affect the ethical analysis; the client's right of confidentiality predominates regardless of the engineer's benevolent motive.
the Board concluded that although it did not appear from the facts that Engineer A had acted with some ulterior motive or intention to cause the client any harm, the principle of the right of confidentiality on behalf of the client predominated.
Professional engineering and structural safety bodies
Building Structural Safety Investigation Standard
Engineer A to inspect the building and give expert testimony
Engineer A discovers serious structural defects in the building which he believes constitute an immediate threat to the safety of the tenants
Engineer A during inspection of the apartment building
Provides technical and professional norms governing Engineer A's structural inspection of the apartment building, including obligations triggered upon discovering structural defects constituting an immediate threat to tenant safety
Building Owner Current Case Attorney-Represented Litigation Client
{'case_reference': 'Current case', 'relationship_to_engineer': 'Indirect beneficiary through attorney'}
Building owner represented by attorney in litigation; attorney retained Engineer A on owner's behalf; no conflict of interest between owner and attorney regarding the safety information — a key distinguishing factor from BER 82-2.
{'type': 'indirect_beneficiary_of', 'target': 'Engineer A Current Case Attorney-Directed Confidentiality-Bound Safety-Discovering Engineer'}
{'type': 'represented_by', 'target': 'Attorney Current Case'}
Building Owner Attorney-Represented Litigation Client
there is not any conflict or potential conflict of interest that exists between owner and attorney with regard to the information
{'role_type': 'Property owner and litigation defendant', 'building_condition': 'Multiple defects including serious structural safety hazards'}
Defendant in tenant litigation over building defects; retains attorney who hires Engineer A; owner's building contains serious structural defects posing immediate safety threats to tenants.
{'type': 'represented_by', 'target': "Owner's Attorney"}
{'type': 'safety_obligation_toward', 'target': 'Building Tenants'}
{'type': 'sued_by', 'target': 'Building Tenants'}
Tenants of an apartment building sue the owner to force him to repair many defects in the building
Owner's attorney hires Engineer A to inspect the building and give expert testimony in support of the owner
Building Tenants Tenant Litigation Plaintiff Stakeholder
{'role_type': 'Apartment building tenants and active litigants', 'safety_status': 'Unknowingly exposed to immediate structural safety threat'}
Plaintiffs suing the building owner to compel repair of habitability defects; unaware of serious structural safety defects discovered by Engineer A that are suppressed under attorney confidentiality directive; directly imperiled by the undisclosed structural hazards.
{'type': 'endangered_by_suppressed_findings_of', 'target': 'Engineer A'}
{'type': 'owed_safety_disclosure_by', 'target': 'Engineer A'}
{'type': 'suing', 'target': 'Building Owner'}
Tenants of an apartment building sue the owner to force him to repair many defects in the building which affect the quality of use
The tenants' suit has not mentioned these safety related defects
CausalLink_Attorney Orders Confidentialit
CausalLink_Engineer Accepts Inspection En
CausalLink_Engineer Complies With Confide
CausalLink_Engineer Reports Findings to A
NSPE Board of Ethical Review (emergent from case analysis)
Client Confidentiality vs. Public Safety Balancing Framework
there may be facts and circumstances in which the ethical obligation of engineers in protecting the public health and safety conflict with the ethical obligation of engineers to maintain the right of confidentiality in data and other information obtained on behalf of a client.
we think that under the facts of this case, there were reasonable alternatives available to Engineer A which could assist him in averting an ethical conflict.
Board of Ethical Review in resolving the ethical conflict faced by Engineer A
Applied by the Board to navigate the natural tension between the engineer's duty of client confidentiality and the paramount obligation to protect public health and safety, identifying reasonable alternatives and conditions under which disclosure is ethically required
Engineer A complys with the request of the attorney
Upon reporting the findings to the attorney, Engineer A is told he must maintain this information as confidential as it is part of a lawsuit
Engineer A when deciding whether to comply with the attorney's confidentiality directive
Directly applicable framework for resolving the tension between Engineer A's duty of confidentiality to the retaining attorney/owner and the paramount obligation to protect tenants facing an immediate structural safety threat
Client BER 82-2 Prospective Home Purchaser Inspection Client
{'case_reference': 'BER Case 82-2', 'interest': 'Confidentiality of inspection findings for bargaining purposes'}
Retained Engineer A for a pre-purchase home inspection; received written report; objected to unauthorized disclosure of report to real estate firm as prejudicing their bargaining position.
{'type': 'retains', 'target': 'Engineer A BER 82-2 Home Inspection Confidentiality Violating Engineer'}
Prospective Home Purchaser Inspection Client
Engineer A performed this service for a client for a fee
Client BER 84-5 Cost-Objecting Safety Staffing Refusing Client
{'case_reference': 'BER Case 84-5', 'refusal_basis': 'Cost concerns'}
Hired Engineer A for complete engineering services; refused to authorize a full-time on-site project representative on cost grounds, creating the ethical conflict that led to Engineer A's violation.
{'type': 'retains', 'target': 'Engineer A BER 84-5 Construction Phase Safety Recommendation Abandoning Engineer'}
Cost-Objecting Safety Staffing Refusing Client
Engineer A abandoned the ethical duty and proceeded with the work on the project
Code Exception Clause Activation — Section II.1.c. Public Safety Exception
Engineer A's authority and obligation to disclose imminent structural danger to tenants and public authorities despite general confidentiality obligation
The Board identifies and activates Section II.1.c.'s explicit exception to the general confidentiality obligation — which permits disclosure 'in cases authorized by the Code or required by law' — concluding that imminent public health and safety endangerment triggers this exception and transforms the permission to disclose into an ethical responsibility to disclose.
The ethics code's exception clause in Section II.1.c. is not merely a permission but, when activated by imminent public danger, generates an affirmative ethical responsibility to disclose; engineers must recognize and activate these exception clauses rather than treating the general confidentiality rule as absolute.
Code Exception Clause Activation for Public Safety Disclosure
Section II.1.c. makes a clear exception concerning the obligation of engineers not to reveal facts obtained in a professional capacity without the client's consent. That exception allows the disclosure of such information in cases authorized by the Code or required by law. We believe that in cases where the public health and safety is endangered, engineers not only have the right but also the ethical responsibility to reveal such facts to the proper persons.
The Section II.1.c. exception clause is activated by the imminent structural danger, transforming the general confidentiality obligation into an affirmative disclosure obligation; the exception clause is the mechanism by which the code resolves the tension between confidentiality and public safety.
Competing Code Provision Contextual Balancing — Safety vs. Confidentiality
Engineer A's competing obligations to maintain attorney-directed confidentiality and to warn tenants of imminent structural danger
The Board explicitly recognizes that the public safety obligation and the client confidentiality obligation may conflict, characterizes this as a 'natural tension within the Code,' and engages in contextual balancing to determine which obligation prevails under the specific facts — concluding that imminent structural danger to tenants triggers the safety obligation over the confidentiality obligation.
When two code provisions appear to conflict, the engineer must engage in contextual balancing rather than mechanically applying either provision; the Board's analysis of BER 82-2 versus the current case illustrates how the same tension resolves differently depending on whether a conflict of interest exists and whether public safety is immediately endangered.
Competing Code Provision Contextual Balancing Obligation
The Board resolves the tension in favor of public safety disclosure when the danger is imminent and the confidentiality rationale (protecting client from adversarial disadvantage) is absent — but acknowledges that the same tension resolves in favor of confidentiality when no public safety concern is present (BER 82-2).
It was unethical for Engineer A to not report the information directly to the tenants and public authorities.
Beyond the Board's finding that Engineer A was obligated to report directly to tenants and public authorities, the analysis reveals a threshold failure that preceded the confidentiality dispute entirely: Engineer A failed to recognize, at the moment of accepting the engagement, that a forensic expert witness retained in active litigation occupies a role categorically distinct from that of a legal advocate. Because Engineer A's professional obligations run to the public and to the integrity of the engineering profession — not to the litigation strategy of the retaining attorney — the attorney's confidentiality instruction was legally and ethically ultra vires from the outset. Engineer A bore an independent, pre-compliance duty to clarify the scope and limits of any confidentiality obligation before accepting the engagement, and the failure to do so made Engineer A complicit in a structural suppression that no subsequent good-faith reliance on legal advice could cure.
The Board's conclusion that Engineer A was obligated to notify tenants and public authorities is further strengthened by the active litigation context, which paradoxically created an additional — not a diminished — avenue for ethical discharge. Because the tenants' lawsuit was already before a court, Engineer A possessed a procedural pathway that would not have required unilateral breach of any legitimate confidentiality norm: Engineer A could have moved the court directly, or notified the presiding judge through appropriate channels, of the existence of an imminent structural danger affecting occupants. This avenue would have placed the disclosure decision within the judicial system's authority, insulated Engineer A from the attorney's litigation-strategy objections, and simultaneously fulfilled the public safety obligation under the NSPE Code. The Board's silence on this procedural alternative represents a gap in the analysis, because the existence of an active judicial forum means Engineer A's ethical options were broader than a binary choice between client loyalty and unilateral public disclosure.
The Board's conclusion that Engineer A acted unethically by maintaining confidentiality implies, but does not explicitly state, a graduated sequence of ethically required responses that Engineer A should have pursued before the situation reached the point of unilateral disclosure. Drawing on the precedent established in BER 84-5, Engineer A was first obligated to insist — as a condition of continued engagement — that the attorney either disclose the structural defects to the court and the tenants or permit Engineer A to do so. Only upon the attorney's refusal would withdrawal and independent disclosure have become the required course of action. This sequencing matters because it demonstrates that Engineer A's ethical failure was not merely the act of compliance with the confidentiality instruction, but also the failure to exhaust intermediate remedies: Engineer A neither conditioned continued engagement on disclosure, nor withdrew upon the attorney's refusal, nor independently notified the affected parties. Each of these omissions constitutes a distinct and independently cognizable ethical failure, meaning Engineer A's culpability is layered and cumulative rather than reducible to a single act of non-disclosure.
In response to Q101: Engineer A's obligation to the public superseded any duty of loyalty to the attorney-client relationship at the precise moment he formed a professional judgment that the structural defects constituted an immediate threat to tenant safety. That moment — not the moment of accepting the engagement, not the moment of reporting to the attorney, and not the moment of receiving the confidentiality instruction — was the ethical inflection point. Before that moment, confidentiality was a legitimate professional constraint. After it, the NSPE Code's public welfare paramount principle rendered confidentiality inapplicable as a matter of code hierarchy. Separately, Engineer A bore an independent obligation to clarify the scope and limits of confidentiality before accepting the engagement. A forensic expert entering a litigation context should affirmatively establish at the outset that any confidentiality arrangement cannot extend to suppression of imminent safety findings, because the engineer's licensure-grounded public duty is non-delegable and cannot be contracted away. Failure to establish this boundary at the engagement's inception does not create the confidentiality obligation — the NSPE Code's public safety exception would still override it — but it does represent a failure of professional diligence that contributed to the ethical conflict Engineer A subsequently faced.
In response to Q102: The existence of active litigation before a court created an additional and potentially less confrontational avenue through which Engineer A could have discharged his public safety duty. Engineer A could have sought leave to notify the presiding court directly — through counsel of his own if necessary — that he possessed safety-critical findings bearing on the physical welfare of building occupants that were not part of the existing litigation record. Courts possess inherent authority to address imminent dangers to persons within their jurisdictional reach, and a forensic expert's disclosure to a judge through proper procedural channels would not constitute a unilateral breach of litigation confidentiality in the same sense as a direct press disclosure. This avenue would have been consistent with Engineer A's non-advocate status as a forensic expert, would have preserved procedural integrity, and would have placed the disclosure decision in the hands of a neutral arbiter with authority over all parties. Engineer A's failure to consider or pursue this avenue reinforces the conclusion that his passive acquiescence to the attorney's confidentiality instruction reflected an insufficient appreciation of the range of ethically available options, not merely a difficult binary choice between silence and unilateral disclosure.
In response to Q103: Withdrawal from the expert witness engagement upon receiving the attorney's confidentiality instruction would have been a necessary step but would not alone have been sufficient to satisfy Engineer A's ethical obligations. The BER 84-5 precedent establishes that an engineer who withdraws from an engagement after identifying a safety threat but takes no further affirmative action to protect affected parties has not fully discharged the public safety duty. Withdrawal removes the engineer from the client relationship and eliminates ongoing complicity in suppression, but it does not warn the tenants who remain in physical danger, does not notify public authorities who could compel remediation, and does not activate the protective function that the NSPE Code's public welfare paramount principle is designed to serve. The ethical obligation triggered by discovery of an imminent structural threat is affirmative and outward-facing — it runs to the public, not merely to the engineer's own professional integrity. Accordingly, withdrawal would have been a required first step consistent with BER 84-5's insistence-then-withdrawal framework, but affirmative disclosure to tenants and public authorities remained independently required regardless of whether Engineer A continued or terminated the engagement.
In response to Q104: An attorney retaining an independent engineering expert as a forensic consultant does not thereby incorporate that expert into the attorney-client privilege framework in a manner that legally empowers the attorney to impose attorney-client confidentiality norms on the engineer's independent professional obligations. Attorney-client privilege attaches to communications between attorney and client; a retained expert occupies a distinct professional role governed by the expert's own licensure obligations and professional code. The attorney's instruction to Engineer A was therefore legally inapposite as applied to Engineer A's duty to disclose imminent safety findings — it may have reflected the attorney's litigation strategy, but it had no legal authority to override Engineer A's state-licensure-grounded public safety obligations. Engineer A bears responsibility for failing to recognize this distinction. A licensed engineer serving as a forensic expert should understand that the attorney directing the engagement cannot, by instruction alone, expand the scope of legally enforceable confidentiality to encompass suppression of imminent physical danger to third parties. Engineer A's uncritical acceptance of the attorney's legal characterization — without independent verification of its applicability to his professional obligations — constitutes a failure of the professional judgment that licensure demands.
In response to Q201: The NSPE Code does not treat confidentiality and public welfare as co-equal principles requiring case-by-case balancing without a predetermined hierarchy. Rather, the Code establishes public welfare as the paramount obligation — the foundational duty from which all other professional obligations derive their legitimacy — and treats confidentiality as a secondary obligation that operates within the space that public welfare concerns do not occupy. Section II.1.c.'s public safety exception is not a narrow carve-out reluctantly grafted onto a confidentiality norm; it is the expression of the Code's internal hierarchy made explicit. When Engineer A possessed superior technical knowledge of an imminent structural danger to occupied premises, the confidentiality principle lost its operative force as a matter of code structure, not merely as a matter of ethical judgment. The tension between the two provisions is therefore resolved by the Code itself, not by the engineer's discretionary weighing. Engineer A's framing of the situation as a genuine conflict between two equally binding obligations mischaracterized the Code's architecture and produced an ethically incorrect outcome.
In response to Q202: Engineer A's status as a forensic expert — rather than a legal advocate — imposed a distinct and structurally important constraint on the attorney's authority to direct his professional conduct. A forensic engineering expert retained for litigation is expected to provide objective, technically grounded findings that serve the fact-finding function of the legal proceeding, not to serve as an instrument of litigation strategy. When the attorney instructed Engineer A to suppress safety-critical structural findings, the attorney was not merely directing the scope of testimony — the attorney was directing Engineer A to abandon his non-advocate objectivity and function instead as a partisan suppressor of adverse evidence. This instruction was incompatible with the forensic expert role as defined by professional engineering standards. Engineer A's compliance therefore constituted a violation of his non-advocate status independent of and in addition to his violation of the public safety paramount obligation. The two violations are analytically distinct: the public safety violation concerns what Engineer A owed to the tenants and the public; the non-advocate violation concerns what Engineer A owed to the integrity of the forensic expert role itself and to the legal system that relies on expert objectivity.
In response to Q203: The BER 82-2 principle that a benevolent or legally-advised motive does not cure an ethical violation applies with full force to Engineer A's situation and does not conflict irreconcilably with the principle of mitigation for good-faith reliance — rather, the two principles operate at different analytical levels. The no-cure principle addresses whether the violation occurred; the mitigation principle addresses how the Board should characterize the engineer's culpability and what remedial or disciplinary response is appropriate. Engineer A's good-faith reliance on the attorney's legal instruction may be relevant to the latter question — it may distinguish his conduct from willful or bad-faith suppression — but it is entirely irrelevant to the former. The ethical violation was complete the moment Engineer A chose silence over disclosure in the face of an imminent structural threat to occupied premises, regardless of his subjective belief about the legality of the attorney's instruction. The Board's framework in BER 82-2 correctly forecloses the argument that a legally-advised motive transforms an objectively violative act into an ethically permissible one, while leaving open the separate question of how the engineer's good faith should inform the Board's assessment of character and appropriate response.
In response to Q204: The imminence and severity of the safety threat are the determinative factors that resolve the tension between confidentiality agreements and direct notification obligations in forensic engineering engagements. A confidentiality agreement entered into at the outset of an engagement is a legitimate professional constraint that binds the engineer with respect to findings that do not implicate imminent physical danger to identifiable third parties. However, when the discovered condition crosses the threshold from a quality-of-use defect — the type of defect at issue in the tenants' original lawsuit — to an immediate structural threat to life, the confidentiality agreement's operative scope is exhausted by the NSPE Code's public safety exception. The agreement does not become void in its entirety, but it cannot extend to cover the specific category of imminent-danger findings. Engineer A's obligation to directly notify the tenants and public authorities was therefore not a breach of the confidentiality agreement properly understood — it was the correct application of the agreement's inherent scope limitation. The tenants, as the parties facing direct physical harm, were entitled to notification independent of whether they were already plaintiffs in litigation, because their litigation status addressed quality-of-use claims, not the distinct and more urgent structural safety threat that Engineer A discovered.
In response to Q301: From a deontological perspective, Engineer A failed to fulfill the categorical duty to protect public safety that the NSPE Code imposes as a non-negotiable obligation. Deontological ethics evaluates the moral permissibility of an action by reference to the duty it expresses or violates, not by reference to the consequences it produces or the instructions it follows. Engineer A's duty to protect public safety — grounded in his licensure, his superior technical knowledge, and the NSPE Code's explicit hierarchy — was categorical in the sense that it admitted no exception for client loyalty, litigation strategy, or attorney instruction. By choosing compliance with the attorney's confidentiality instruction over disclosure to the tenants and public authorities, Engineer A acted on a maxim — 'an engineer may suppress imminent safety findings when instructed to do so by a retaining attorney' — that cannot be universalized without destroying the very foundation of public trust in licensed engineering. A universalized version of that maxim would mean that any attorney could neutralize any engineer's public safety obligation simply by issuing a confidentiality instruction, which would render the NSPE Code's public welfare paramount principle meaningless. Engineer A's compliance therefore violated his categorical duty not merely as a matter of code interpretation but as a matter of the underlying moral logic that the code expresses.
In response to Q302: From a consequentialist perspective, the harm calculus independently and decisively condemns Engineer A's compliance with the attorney's confidentiality instruction. The aggregate harms produced by Engineer A's silence include: continued occupancy of a structurally dangerous building by tenants who lacked the technical knowledge to assess their own risk; the probability — however uncertain in magnitude — of serious injury or death from structural failure; the denial to tenants of information they needed to make autonomous decisions about their own safety; the foreclosure of timely remediation that public authority notification might have compelled; and the systemic erosion of public trust in licensed engineers as reliable guardians of public safety. Against these harms, the benefits of honoring litigation confidentiality are limited to: preserving the attorney's litigation strategy, avoiding disruption to the legal proceeding, and maintaining Engineer A's relationship with the retaining attorney. No plausible consequentialist calculus — whether utilitarian, prioritarian, or risk-weighted — produces an outcome in which the litigation-strategy benefits outweigh the safety harms, particularly given that the tenants facing physical danger were the most vulnerable and least informed parties in the situation. The consequentialist analysis therefore converges with the deontological analysis in condemning Engineer A's compliance, reinforcing the conclusion that the ethical violation was not a close case.
In response to Q303: From a virtue ethics perspective, Engineer A's compliance with the attorney's confidentiality instruction reveals a failure of moral courage — the specific virtue that the forensic engineering role most demands when professional findings conflict with client interests. Virtue ethics evaluates conduct not merely by reference to rules or outcomes but by asking whether the agent acted as a person of good professional character would act. A forensic engineer of good character, possessing knowledge of an imminent structural threat to occupied premises, would have recognized that the attorney's instruction — however authoritatively delivered — could not override the engineer's fundamental identity as a licensed professional whose authority derives from public trust. The virtuous response would have been to insist on disclosure, to resist the instruction, and if necessary to withdraw and notify independently — not because a rule required it, but because a person of integrity could not in good conscience remain silent while tenants faced physical danger. Engineer A's compliance suggests a disposition toward deference to authority and avoidance of professional conflict that is incompatible with the courage, integrity, and trustworthiness that the engineering profession demands of its members, particularly those who hold themselves out as forensic experts whose objectivity the legal system depends upon.
In response to Q401: If Engineer A had notified the tenants and public authorities immediately upon discovering the structural defects — before reporting to the attorney — the attorney's subsequent confidentiality instruction would have had no practical force over the already-disclosed information and no ethical force over Engineer A's prior conduct. The disclosure would have been fully consistent with the NSPE Code's public safety exception under Section II.1.c., because the exception does not require that the engineer first exhaust client-directed channels before disclosing imminent safety findings. The sequence of disclosure matters: Engineer A's obligation to the public arose at the moment of discovery, and the attorney's confidentiality instruction arose only after Engineer A reported to the attorney. Had Engineer A acted on his public safety obligation first — as the Code's hierarchy of duties would support — the attorney's instruction would have arrived too late to suppress information already in the hands of those who needed it. This counterfactual illuminates a practical lesson: engineers who discover imminent safety conditions during forensic engagements should consider whether their obligation to notify affected parties is immediate and independent of the client reporting chain, rather than assuming that client notification must precede or substitute for public safety notification.
In response to Q402: If Engineer A had refused to accept the confidentiality instruction and instead conditioned continued engagement on the attorney's agreement to disclose the structural defects to the court or the tenants, this approach would have represented the ethically required first step before unilateral disclosure or withdrawal. The BER 84-5 precedent supports precisely this sequence: an engineer facing a client-imposed constraint that endangers public safety should first insist on remedial action, and only if that insistence fails should the engineer proceed to withdrawal and, where necessary, independent notification. Conditioning continued engagement on disclosure would have preserved the professional relationship, avoided unilateral breach, and given the attorney an opportunity to fulfill his own professional obligations — attorneys also bear duties to the court and to the administration of justice that may independently require disclosure of imminent physical dangers. This approach would not have required Engineer A to unilaterally breach client confidentiality, because the disclosure would have been made by or with the consent of the attorney. However, if the attorney refused, Engineer A's obligation to withdraw and notify independently would have been fully activated. The failure to even attempt this insistence-first approach is itself an independent ethical deficiency, separate from the ultimate failure to disclose.
In response to Q403: If the structural defects discovered by Engineer A had posed a potential rather than an immediate threat to tenant safety, the ethical calculus would have been more complex, but the NSPE Code's Section II.1.c. exception would not necessarily have been inapplicable. The exception's activation depends on the nature and severity of the safety risk, not solely on whether the risk is immediate in the sense of imminent collapse. A potential structural defect that, if left unaddressed, would foreseeably result in serious harm to occupants over a defined time horizon may still trigger the public safety exception, particularly where the affected parties — the tenants — lack the technical knowledge to assess the risk themselves and are therefore unable to make informed decisions about their own safety. However, the threshold of imminence does affect the ethical calculus in one important respect: the more immediate the threat, the less room exists for Engineer A to pursue sequential remedies such as insistence, negotiation, or gradual escalation before disclosure becomes obligatory. For a potential rather than immediate threat, Engineer A might have had more time and more ethical latitude to pursue the insistence-then-withdrawal sequence from BER 84-5 before resorting to independent notification. The imminence of the threat in the actual case compressed that sequence to near-zero, making immediate disclosure the only ethically adequate response.
In response to Q404: Even if the tenants' lawsuit had already included the structural safety defects as part of their claims — making the defects part of the active litigation record — Engineer A's ethical obligation to disclose independently to the tenants and public authorities would not have been fully extinguished. The existence of an imminent physical danger to building occupants creates a disclosure duty that is grounded in the engineer's licensure-based public safety obligation, not merely in the informational gap between what the tenants know and what Engineer A knows. If the defects were already in the litigation record, the informational gap would be narrowed, and the urgency of Engineer A's independent notification obligation would be reduced — because the tenants' counsel would presumably be aware of the safety claims and could seek emergency relief from the court. However, the presence of a claim in litigation does not guarantee that the court has ordered remediation, that the building has been vacated, or that the tenants have been warned to take protective measures in the interim. If Engineer A's inspection revealed that the structural threat was more severe or more imminent than the litigation record reflected, his independent obligation to notify would persist to the extent of that additional knowledge. The disclosure duty is therefore not fully displaced by litigation awareness; it is calibrated to the gap between what affected parties know and what the engineer's superior technical knowledge reveals.
The tension between client confidentiality and public welfare was resolved in this case by the NSPE Code's internal hierarchy, which places public safety as a paramount and non-negotiable obligation that supersedes all competing duties. The Code's Section II.1.c. confidentiality provision contains an explicit exception for circumstances endangering public safety, meaning the two provisions are not genuinely co-equal: confidentiality is a conditional duty, while public welfare protection is an unconditional one. Engineer A's error was treating these as symmetrical obligations requiring a difficult balancing act, when in fact the Code's structure resolves the conflict categorically in favor of disclosure whenever an imminent physical danger to identifiable persons exists. The case teaches that principle tensions in engineering ethics are not always resolved by contextual weighing — some tensions are pre-resolved by the Code's own internal priority ordering, and an engineer's failure to recognize that ordering is itself an ethical failure independent of the substantive outcome.
The principle that a forensic engineer must maintain non-advocate objectivity came into direct conflict with the principle of client loyalty and confidentiality when the attorney instructed Engineer A to suppress safety-critical findings. This case resolves that tension by establishing that the two principles are not merely in tension but are structurally incompatible when a litigation client's interest is to conceal an imminent physical danger. An engineer retained as a forensic expert does not occupy the same role as legal counsel and is not subject to the same professional norms of zealous client advocacy. When Engineer A complied with the attorney's confidentiality instruction, Engineer A effectively abandoned the forensic expert's role and assumed the functional posture of a legal advocate — suppressing unfavorable evidence to serve the client's litigation position. This case teaches that the principle of forensic expert objectivity is not merely a procedural norm about impartiality in testimony; it is a substantive ethical constraint that prohibits the engineer from allowing litigation strategy to determine what safety-relevant findings are disclosed. The attorney had no professional authority to override this constraint, and Engineer A bore independent responsibility for recognizing its limits.
The principle established in BER 82-2 — that a benevolent or legally-advised motive does not cure an ethical violation — interacts with the principle of good-faith reliance on professional legal counsel in a way that produces a nuanced but ultimately unambiguous conclusion: good faith reliance may be a mitigating factor in assessing culpability, but it cannot function as a complete defense when the underlying obligation is categorical. In this case, Engineer A acted on the advice of a licensed attorney, which represents a plausible and non-frivolous basis for believing the confidentiality instruction was legally valid. However, the NSPE Code's public safety obligation is not contingent on the engineer's independent legal analysis of the attorney's instruction — it is triggered by the objective fact of an imminent danger to identifiable persons. The case therefore teaches that the principle of good-faith reliance on legal advice operates within, not above, the Code's ethical framework: an engineer cannot delegate the ethical judgment about whether to disclose an imminent safety threat to an attorney whose professional interests are aligned with non-disclosure. The motive for compliance — however reasonable it appeared — does not alter the ethical character of the resulting harm to the tenants who remained in a structurally dangerous building.
Confidential Safety Information Held by Engineer A
From attorney's confidentiality instruction through Engineer A's compliance
Engineer A is told he must maintain this information as confidential as it is part of a lawsuit.
Engineer A's possession of structural defect findings under attorney-imposed confidentiality
Attorney's instruction designating the structural defect findings as confidential litigation material
Confidentiality Agreement Non-Supersession Violated By Engineer A Compliance With Attorney Instruction
Attorney-directed confidentiality obligation
Faithful Agent Obligation Within Ethical Limits
Engineer A accepts the attorney's confidentiality instruction as binding over the structural defect findings; this acceptance violates the principle that no confidentiality obligation supersedes the duty to disclose conditions constituting immediate danger to building occupants
The attorney's confidentiality instruction is treated by Engineer A as binding; but the principle establishes that such instructions are overridden by the imminent danger disclosure obligation; Engineer A's compliance is an independent ethical violation
Imminent danger disclosure obligation overrides attorney-directed confidentiality; Engineer A must disclose
Confidentiality Agreement Non-Supersession — Attorney Retention Context
Engineer A's contractual/professional confidentiality obligation to attorney versus obligation to disclose imminent structural danger
The confidentiality obligation arising from Engineer A's retention by the attorney — which would normally require prior consent before revealing facts obtained in a professional capacity — does not supersede Engineer A's professional duty to disclose conditions constituting an immediate and imminent danger to the safety of building occupants.
Any purported confidentiality obligation arising from the attorney-engineer retention relationship yields to the paramount public safety obligation when the discovered conditions constitute an immediate and imminent danger; the confidentiality obligation cannot be used to suppress life-safety disclosures.
Section II.1.c. makes a clear exception concerning the obligation of engineers not to reveal facts obtained in a professional capacity without the client's consent. That exception allows the disclosure of such information in cases authorized by the Code or required by law.
The confidentiality obligation is overridden by the imminent danger exception; Engineer A must disclose to tenants and public authorities as an ethical responsibility, not merely a permission.
Confidentiality Non-Applicability To Public Danger Violated In Tenant Safety Case
Structural defects constituting immediate threat to tenants
The attorney's confidentiality instruction is asserted over structural defect findings that constitute an immediate threat to tenant safety; the principle establishes that professional confidentiality does not bar disclosure of apparent public danger, making Engineer A's compliance ethically impermissible
The structural defects discovered by Engineer A constitute an apparent danger to the public (the tenants); confidentiality obligations do not bar disclosure of such danger to proper authorities; Engineer A's compliance with the confidentiality instruction violates this principle
Confidentiality Non-Applicability to Public Danger Disclosure
Confidentiality non-applicability to public danger means Engineer A must disclose; compliance with attorney instruction is a violation
Confidentiality Non-Applicability — Imminent Structural Danger to Tenants
Engineer A's obligation to disclose imminent structural defects to tenants and public authorities despite attorney confidentiality instruction
The Board concludes that Engineer A's confidentiality obligation to the attorney-client does not bar disclosure of the imminent structural danger to tenants and public authorities, because the public danger exception to confidentiality applies — the engineer not only has the right but the ethical responsibility to reveal such facts to the proper persons.
Professional confidentiality obligations do not bar engineers from advising proper authorities of apparent danger to the public; in this case, the imminent structural danger to tenants falls squarely within the public danger exception, making disclosure not merely permissible but obligatory.
The public danger exception to confidentiality is activated by the imminent structural threat; the confidentiality obligation yields entirely to the public safety disclosure obligation when the danger is immediate and the affected parties (tenants) are identifiable.
Confidentiality Principle Asserted By Attorney Against Engineer A Safety Disclosure
Structural defect findings discovered by Engineer A during building inspection
Third-Party Affected Party Direct Notification Obligation
The owner's attorney instructs Engineer A to maintain confidentiality over the structural defect findings on the ground that they are part of a lawsuit; Engineer A complies; the confidentiality obligation is asserted but must be balanced against the imminent danger to tenants
The attorney's confidentiality instruction invokes a relational confidentiality obligation, but this obligation must be balanced against the paramount public safety duty; the imminence and severity of the structural defects mean the confidentiality obligation yields
Confidentiality obligation is overridden by the public safety obligation; Engineer A's compliance with the confidentiality instruction is ethically impermissible
Confidentiality Principle — BER 82-2 Client Report Unauthorized Disclosure
Engineer A BER 82-2's unauthorized disclosure of home inspection report to real estate firm
In BER 82-2, Engineer A's unauthorized submission of a home inspection report to the real estate firm representing the seller — without the client's consent — violated the client's right of confidentiality, even though Engineer A had no ulterior motive, because the disclosure prejudiced the client's bargaining position.
Client confidentiality protects clients from having their commissioned professional reports used against their interests by third parties; the absence of malicious intent does not cure a confidentiality violation when the disclosure prejudices the client's position.
In BER 82-2, no public safety concern was present to override confidentiality; the principle of client confidentiality predominated because the disclosure served no public welfare purpose and harmed the client's bargaining position.
Confidentiality vs. Safety Natural Tension Code-Internal Resolution — Current Case
Engineer A faced natural tension between confidentiality obligation to attorney and paramount public safety obligation to warn tenants; BER Board resolved tension in favor of safety disclosure
Confidentiality Non-Bar to Safety-Critical Regulatory Disclosure Constraint
Engineer A's professional confidentiality obligation to the attorney did not bar disclosure of the structural defect findings to tenants and public authorities, because the NSPE Code's confidentiality obligation is defeasible in the face of the paramount public safety duty when public health and safety is endangered — establishing that the natural tension between confidentiality and safety within the Code is resolved in favor of safety disclosure when imminent danger is present.
NSPE Code of Ethics Sections II.1.a., II.1.c.; BER Board Discussion
From the moment Engineer A discovered the imminent structural danger and received the attorney's confidentiality instruction
It appears that Engineer A, having become aware of the imminent danger to the structure, had an obligation to make absolutely certain that the tenants and public authorities were made immediately aware of the dangers that existed.
Conflict-of-Interest Absence as Confidentiality Disclosure Permissibility Condition — Attorney-Owner Alignment
Engineer A's confidentiality obligation analysis distinguishing current case from BER 82-2
The Board distinguishes the current case from BER 82-2 by noting that no conflict of interest exists between the attorney (nominal client) and the building owner (ultimate beneficiary) — the attorney retained Engineer A on behalf of and for the benefit of the owner — making the key BER 82-2 rationale for confidentiality protection (preventing disclosure that would harm the client's adversarial position) absent in the current case.
The confidentiality protection rationale in BER 82-2 was that disclosure harmed the client's bargaining position against an adversary (the real estate firm); in the current case, no such adversarial dynamic exists between the attorney and the owner, so the same confidentiality rationale does not apply with equal force, making public safety disclosure more clearly permissible.
Conflict-of-Interest Absence as Confidentiality Disclosure Permissibility Condition
Unlike the facts presented in BER Case 82-2, there is not any conflict or potential conflict of interest that exists between owner and attorney with regard to the information. Although Attorney retained Engineer A directly, he did so on behalf and for the benefit of the owner.
The absence of a conflict of interest between attorney and owner removes the primary rationale for treating confidentiality as a bar to disclosure; combined with the imminent danger exception, this makes Engineer A's disclosure obligation clear.
Although Attorney retained Engineer A directly, he did so on behalf and for the benefit of the owner.
Unlike the facts presented in BER Case 82-2 , there is not any conflict or potential conflict of interest that exists between owner and attorney with regard to the information.
Current Case: Attorney-Client Confidentiality Barrier to Imminent Structural Danger Disclosure
From Engineer A's discovery of imminent structural danger through the point at which disclosure to tenants and public authorities is made
Attorney-Client Confidentiality Barrier to Imminent Danger Disclosure State
Engineer A's confidentiality obligation to attorney-client running against duty to warn tenants and public authorities of imminent structural danger
Engineer A notifying tenants and public authorities of the danger (as ethically required)
Engineer A, having become aware of the imminent danger to the structure, had an obligation to make absolutely certain that the tenants and public authorities were made immediately aware of the dangers that existed
there were valid reasons why Engineer A should have revealed the information directly to the tenants and public authorities
Engineer A discovering imminent danger to the structure while retained by attorney on behalf of owner, without attorney's authorization to disclose
Current Case: Client Relationship Established — Engineer A Retained by Attorney
From attorney's retention of Engineer A through completion of engineering services
Professional relationship between Engineer A and attorney (retained on behalf of property owner)
Attorney retaining Engineer A directly on behalf of and for the benefit of the property owner
Current Case: Confidentiality vs. Imminent Public Danger Competing Duties
From discovery of imminent structural danger through resolution by mandatory disclosure
there may be facts and circumstances in which the ethical obligation of engineers in protecting the public health and safety conflict with the ethical obligation of engineers to maintain the right of confidentiality
Confidentiality Obligation vs. Imminent Public Danger Competing Duties State
Structural tension between engineer's confidentiality obligation to attorney-client and primary public safety obligation to warn tenants and public authorities
Board's determination that safety exception overrides confidentiality, requiring immediate disclosure to tenants and public authorities
Section II.1.c. makes a clear exception concerning the obligation of engineers not to reveal facts obtained in a professional capacity without the client's consent
in cases where the public health and safety is endangered, engineers not only have the right but also the ethical responsibility to reveal such facts to the proper persons
Engineer A's discovery of imminent structural danger while holding confidential information in professional capacity for attorney-client
Current Case: Ethical Dilemma — Safety Disclosure vs. Client Confidentiality
From discovery of imminent structural danger through Board's resolution that safety exception mandates disclosure
there may be facts and circumstances in which the ethical obligation of engineers in protecting the public health and safety conflict with the ethical obligation of engineers to maintain the right of confidentiality in data and other information obtained on behalf of a client
Engineer A's ethical dilemma between protecting public safety through disclosure and honoring client confidentiality obligation
Board's ethical analysis establishing that safety obligation overrides confidentiality in cases of imminent public danger
we think that under the facts of this case, there were reasonable alternatives available to Engineer A which could assist him in averting an ethical conflict
Engineer A's simultaneous awareness of imminent structural danger and confidentiality obligation to attorney-client
Current Case: Public Safety at Risk — Imminent Structural Danger to Tenants
From Engineer A's discovery of imminent structural danger through notification of tenants and public authorities
Tenants and public at risk from imminent structural danger discovered by Engineer A
Tenants and public authorities made immediately aware of the dangers
Engineer A becoming aware of imminent danger to the structure while tenants remain in occupancy
Current Case Engineer A Attorney-Directed Confidentiality Non-Override Imminent Tenant Safety
Current case: Engineer A retained by attorney on behalf of building owner discovers serious structural defects constituting an immediate threat to tenant safety; attorney instructs Engineer A to maintain confidentiality; Engineer A complies — violating the paramount public welfare obligation.
Attorney-Directed Confidentiality Non-Override of Imminent Occupant Safety Obligation
Engineer A was obligated to notify the building tenants and appropriate public authorities of the imminent structural danger discovered during the forensic inspection, notwithstanding the attorney's instruction to maintain confidentiality, because the attorney-imposed confidentiality obligation is superseded by the immediate and imminent danger to the building's tenants.
Immediately upon discovery of the serious structural defects constituting an immediate threat to tenant safety
Current Case Engineer A Competing Confidentiality-Safety Provision Contextual Balancing
Current case: Engineer A faces a conflict between the attorney's confidentiality instruction (grounded in Code III.4.) and the paramount public safety obligation (Code II.1.a.); the Board identifies Section II.1.c. as the resolution mechanism.
Competing Confidentiality-Safety Code Provision Contextual Balancing Obligation
Engineer A was obligated to recognize the natural tension between the Code's confidentiality obligation and the public safety obligation, and to resolve that tension contextually by applying the Section II.1.c. exception — which the Board identifies as a 'reasonable alternative' available to Engineer A to avert the ethical conflict — rather than treating the attorney's confidentiality instruction as an absolute bar to disclosure.
Upon discovery of the imminent structural danger and receipt of the attorney's confidentiality instruction
Current Case Engineer A Confidentiality Scope Limitation Public Danger Disclosure
Current case: Engineer A's confidentiality obligation to the attorney is asserted over structural defect findings constituting an immediate threat to tenant safety; the Board concludes that confidentiality does not bar disclosure of public danger findings.
Confidentiality Scope Limitation for Public Danger Disclosure Obligation
Engineer A was obligated to recognize that the professional confidentiality obligation owed to the attorney does not extend to bar disclosure of structural defect findings that constitute an immediate public danger, because confidentiality protects clients' technical processes and business affairs — not findings that bear on imminent public safety — and the paramount public welfare obligation requires communication of those findings to appropriate parties.
in cases where the public health and safety is endangered, engineers not only have the right but also the ethical responsibility to reveal such facts to the proper persons.
Current Case Engineer A Conflict-of-Interest Absence Confidentiality Permissibility Assessment
Current case: The Board distinguishes the current case from BER 82-2 by noting that the attorney retained Engineer A on behalf of and for the benefit of the owner, with no divergent interests between them — removing the conflict-of-interest basis for the BER 82-2 violation finding.
Conflict-of-Interest Absence Confidentiality Disclosure Permissibility Condition Obligation
Engineer A was obligated to recognize that, unlike BER 82-2, no conflict of interest existed between the attorney (nominal client) and the building owner (ultimate beneficiary), and that this absence of conflict removed the key basis for finding an ethical violation in disclosure — making the Section II.1.c. exception applicable without the complicating factor present in BER 82-2.
At the time of assessing whether to disclose the structural defect findings
Current Case Engineer A Forensic Expert Non-Advocate Objectivity Compliance Failure
Current case: Engineer A is retained to provide expert testimony 'in support of the owner' and then instructed to suppress adverse safety findings; compliance with the attorney's confidentiality instruction causes Engineer A to function as an advocate rather than an objective forensic expert.
Forensic Expert Witness Objectivity in Adversarial Proceeding Obligation
Engineer A was obligated to maintain objectivity as a forensic expert witness and to resist the attorney's instruction to suppress adverse structural defect findings, recognizing that compliance with the confidentiality instruction constituted adoption of an advocacy role inconsistent with the engineer's non-advocate status in adversarial proceedings.
Upon receipt of the attorney's instruction to maintain confidentiality over the structural defect findings
Current Case Engineer A Licensure-Grounded Superior Knowledge Public Safety Duty
Current case: The Board grounds Engineer A's public safety obligation in both the engineer's superior technical knowledge relative to the lay public and the reciprocal duty arising from the state grant of a professional license.
Licensure-Grounded Superior Technical Knowledge Public Safety Duty Obligation
Engineer A was obligated to act on the superior technical knowledge acquired through engineering education, training, and experience — which revealed the imminent structural danger — and to fulfill the reciprocal duty arising from state licensure by engaging in practice consistent with the interests of the state and its citizenry, including disclosing the imminent danger to tenants and public authorities.
Upon discovery of the serious structural defects constituting an immediate threat to tenant safety
Current Case Engineer A Public Authority Notification Imminent Structural Danger
Current case: Engineer A discovers imminent structural danger; attorney instructs confidentiality; Engineer A fails to notify public authorities — violating the Code's public safety exception clause and potentially state board rules of professional conduct.
Engineer A was obligated to notify appropriate public authorities of the imminent structural danger discovered during the forensic inspection, notwithstanding the attorney's confidentiality instruction, because state board rules of professional conduct may require such action and the Code's Section II.1.c. exception authorizes disclosure when public health and safety is endangered.
Immediately upon discovery of the serious structural defects and attorney's confidentiality instruction
we also believe that state board rules of professional conduct might require such action by professional engineers.
Current Case Engineer A Section II.1.c. Exception Clause Activation
Current case: Engineer A discovers imminent structural danger while retained under attorney-directed confidentiality; Section II.1.c. provides an explicit exception to the general confidentiality prohibition that Engineer A was obligated to invoke.
Public Safety Code Exception Clause Activation Disclosure Obligation
Engineer A was obligated to recognize and invoke the Section II.1.c. exception clause of the NSPE Code, which permits and requires disclosure of information obtained in a professional capacity when public health and safety is endangered, as the affirmative basis for disclosing the imminent structural danger to tenants and public authorities notwithstanding the attorney's confidentiality instruction.
Current Case Engineer A Tenant Direct Notification Imminent Structural Danger
Current case: Engineer A discovers serious structural defects constituting an immediate threat to building tenants who are plaintiffs in litigation against the building owner; tenants are unaware of the structural danger; Engineer A is instructed by attorney to maintain confidentiality.
Tenant Imminent Structural Danger Direct Notification Obligation
Engineer A was obligated to directly notify the building tenants of the imminent structural danger discovered during the forensic inspection, recognizing that the tenants are identifiable third parties directly exposed to the hazard and that the paramount public welfare obligation requires direct notification to those at risk.
Immediately upon discovery of the serious structural defects
there were valid reasons why Engineer A should have revealed the information directly to the tenants and public authorities.
Should Engineer A comply with the attorney's confidentiality instruction and suppress the structural safety findings, or should Engineer A disclose the imminent structural danger directly to the tenants and public authorities notwithstanding the attorney's instruction?
Engineer A, retained as a forensic expert witness by the building owner's attorney, discovers structural defects constituting an immediate threat to tenant safety. The attorney instructs Engineer A to maintain confidentiality over these findings as part of active litigation. Engineer A must decide whether to comply with the attorney's confidentiality instruction or to disclose the imminent danger to tenants and public authorities, invoking the NSPE Code's Section II.1.c. public safety exception.
Invoke the NSPE Code's Section II.1.c. public safety exception and directly notify the tenants and appropriate public authorities of the imminent structural danger, notwithstanding the attorney's confidentiality instruction, on the ground that the paramount public welfare obligation supersedes any litigation-strategy confidentiality claim.
Treat the attorney's assertion of legal confidentiality as a binding professional constraint, defer to the attorney's legal expertise regarding the scope of privilege applicable to retained experts, and refrain from independent disclosure pending resolution of the litigation — on the ground that an engineer operating within a legal proceeding should not unilaterally override the directing attorney's legal judgment.
Rather than disclosing directly to tenants or unilaterally to public authorities, seek leave to notify the presiding court — through independent counsel if necessary — of the existence of imminent safety-critical findings bearing on the physical welfare of building occupants, placing the disclosure decision within the judicial system's authority and avoiding direct breach of litigation confidentiality norms while still discharging the public safety obligation.
When the attorney instructs Engineer A to maintain confidentiality over the structural safety findings, should Engineer A passively comply and continue the engagement, insist on disclosure as a condition of continued engagement and withdraw if refused, or immediately withdraw without insisting on remedial action?
Upon receiving the attorney's confidentiality instruction after reporting the structural findings, Engineer A must decide whether to passively comply and continue the engagement, or to first insist — as a condition of continued engagement — that the attorney disclose the structural defects to the court or tenants, and if refused, to withdraw and independently notify affected parties. This decision point concerns whether Engineer A exhausted the intermediate remedies required by the BER 84-5 insistence-then-withdrawal framework before the situation reached the point of unilateral disclosure.
Condition continued engagement on the attorney's agreement to disclose the structural defects to the court or the tenants; if the attorney refuses, withdraw from the engagement and independently notify the tenants and public authorities of the imminent structural danger, following the BER 84-5 insistence-then-withdrawal sequence as the ethically required graduated response.
Accept the attorney's confidentiality instruction as a binding professional constraint, continue the forensic expert engagement without insisting on disclosure or withdrawing, and defer to the litigation process to eventually surface the structural safety issues — on the ground that the attorney's legal expertise and the active judicial proceeding provide an adequate institutional mechanism for addressing the safety concern.
Immediately withdraw from the forensic expert engagement upon receiving the confidentiality instruction — thereby eliminating ongoing complicity in suppression — but take no further affirmative action to notify tenants or public authorities, on the ground that withdrawal removes the engineer from the client relationship and that the litigation process, now without Engineer A's participation, will independently address the safety findings.
Should Engineer A treat the attorney's confidentiality instruction as legally and ethically binding on his independent professional obligations as a licensed forensic expert, or should Engineer A recognize that the attorney's instruction is ultra vires with respect to his licensure-grounded public safety duties and resist compliance on that basis?
Engineer A, a licensed forensic expert witness retained by the building owner's attorney in active tenant litigation, must determine whether the attorney's instruction to maintain confidentiality over structural safety findings is legally and ethically binding on his independent professional obligations — and whether Engineer A bore a pre-compliance duty to clarify the scope and limits of confidentiality before accepting the forensic engagement. This decision point concerns Engineer A's role identity as a non-advocate forensic expert and whether the attorney had any professional authority to override Engineer A's licensure-grounded public safety obligations.
Recognize that the attorney's confidentiality instruction is legally and ethically ultra vires with respect to Engineer A's licensure-grounded public safety obligations, refuse to treat it as binding on independent professional duties, and proceed to discharge the public safety obligation through disclosure to tenants and public authorities — on the ground that attorney-client privilege does not extend to override a retained expert's professional code obligations.
Treat the attorney's assertion of legal confidentiality as a plausible and authoritative legal claim that Engineer A — as a non-lawyer — is not professionally equipped to independently refute, comply with the instruction in good-faith reliance on the attorney's legal expertise, and document the reliance as a mitigating factor — on the ground that an engineer operating within a legal proceeding should not substitute independent legal judgment for that of a licensed attorney directing the engagement.
Before either complying with or resisting the attorney's confidentiality instruction, retain independent legal counsel to assess whether the attorney's claim of privilege legally extends to Engineer A's professional obligations as a forensic expert — thereby making an informed decision about the instruction's legal validity rather than either uncritically deferring to the retaining attorney or unilaterally overriding a potentially legitimate legal constraint.
Should Engineer A comply with the attorney's confidentiality instruction and suppress the structural safety findings, or disclose those findings to the tenants and public authorities in fulfillment of the forensic expert's independent public safety obligation?
Engineer A, retained as a forensic expert in active tenant litigation, discovers imminent structural defects and reports them to the retaining attorney, who then orders confidentiality. The core decision is whether Engineer A should comply with the attorney's suppression instruction or fulfill the independent public safety and non-advocate objectivity obligations that forensic expert status imposes.
Refuse the attorney's confidentiality instruction as applied to imminent safety findings and notify the tenants and relevant public authorities directly, invoking the NSPE Code's Section II.1.c. public safety exception as the basis for overriding the litigation confidentiality constraint.
Accept the attorney's assertion that attorney-client confidentiality legally binds Engineer A's findings and maintain silence, treating the attorney's legal instruction as a sufficient basis for deferring the independent public safety disclosure obligation pending resolution of the litigation.
Rather than disclosing directly to tenants or unilaterally breaching litigation confidentiality, seek leave to notify the presiding judge through appropriate procedural channels of the imminent structural danger, placing the disclosure decision within the judicial system's authority while preserving Engineer A's non-advocate status.
Should Engineer A insist on attorney-initiated disclosure as a condition of continued engagement before resorting to withdrawal and independent notification, or should Engineer A immediately withdraw and independently notify tenants and public authorities upon receiving the confidentiality instruction?
Upon receiving the attorney's confidentiality instruction after reporting structural findings, Engineer A must decide whether to first insist — as a condition of continued engagement — that the attorney disclose the defects to the court or tenants, or to immediately withdraw and independently notify affected parties, or to comply and remain in the engagement. This decision point concerns the sequencing of ethically required responses and whether Engineer A exhausted intermediate remedies before the situation required unilateral disclosure.
Condition continued engagement on the attorney's agreement to disclose the structural defects to the court or tenants; if the attorney refuses, withdraw from the engagement and independently notify tenants and public authorities, following the BER 84-5 insistence-before-withdrawal sequence while ensuring affirmative public safety notification.
Withdraw from the expert witness engagement upon receiving the confidentiality instruction, treating withdrawal as a sufficient discharge of ethical obligations on the grounds that Engineer A's continued participation would constitute ongoing complicity, while leaving disclosure to the litigation process already underway.
Comply with the confidentiality instruction and remain in the engagement on the basis that the active tenant lawsuit will produce disclosure and remediation through the litigation process, and that Engineer A's unilateral notification would disrupt proceedings and exceed the scope of the forensic expert role.
Should Engineer A have clarified and negotiated the limits of any confidentiality obligation — specifically excluding imminent safety findings from its scope — before accepting the forensic expert engagement, or was it reasonable to accept the engagement under standard terms and address confidentiality conflicts only if and when they arose?
At the moment of accepting the forensic engagement — before any findings were made — Engineer A faced a threshold decision about whether to clarify the scope and limits of any confidentiality obligation as a precondition of engagement. The attorney's subsequent confidentiality instruction was legally ultra vires as applied to Engineer A's licensure-based public safety obligations, but Engineer A's failure to establish this boundary at inception contributed to the ethical conflict that followed. This decision point concerns whether Engineer A bore a pre-compliance duty to negotiate confidentiality scope before accepting the engagement.
Before accepting the forensic engagement, affirmatively establish with the attorney that any confidentiality arrangement cannot extend to suppression of imminent safety findings, documenting this limit in the engagement agreement so that the engineer's licensure-based public safety obligations are explicitly preserved from the outset.
Accept the forensic engagement under standard professional terms without pre-negotiating confidentiality scope, on the basis that the NSPE Code's public safety exception operates regardless of engagement agreement terms and that a competent retaining attorney should understand the limits of engineering expert confidentiality obligations.
Before accepting the engagement, consult independent legal counsel to clarify the extent to which attorney-client privilege or litigation confidentiality rules could be asserted against the engineer's independent professional obligations, and condition acceptance on receiving a written legal opinion confirming that public safety findings cannot be suppressed.
Engineer Confidentiality and Loyalty Obligation Standard
Engineer A is told he must maintain this information as confidential as it is part of a lawsuit
Engineer A in evaluating the attorney's instruction to maintain confidentiality
Defines the scope and limits of Engineer A's duty of confidentiality to the retaining attorney and owner, establishing that confidentiality obligations do not extend to suppressing findings that constitute an immediate public safety threat
Engineer Public Safety Escalation Standard
Upon reporting the findings to the attorney, Engineer A is told he must maintain this information as confidential
Engineer A after being instructed by the attorney to suppress safety findings
Governs Engineer A's obligation to escalate the immediate structural safety threat to appropriate authorities when the retaining attorney refuses to act on the safety findings and instructs confidentiality
Engineer A Attorney-Directed Confidentiality-Bound Safety-Discovering Engineer
{'license': 'Professional Engineer', 'specialty': 'Building inspection and structural assessment', 'engagement_type': 'Forensic expert witness retained by defense attorney'}
Retained by the building owner's attorney to inspect the building and provide expert testimony; discovers serious structural defects constituting an immediate threat to tenant safety not raised in the existing lawsuit; reports findings to the attorney; complies with the attorney's instruction to maintain confidentiality over the safety-critical findings.
{'type': 'retained_by', 'target': "Owner's Attorney"}
{'type': 'subject_to_confidentiality_directive_from', 'target': "Owner's Attorney"}
Attorney-Directed Confidentiality-Bound Safety-Discovering Engineer
Engineer A Attorney Confidentiality Compliance Imminent Tenant Safety Violation
Engineer A, retained by the building owner's attorney as a forensic expert, discovered serious structural defects constituting an immediate threat to tenant safety; the attorney instructed Engineer A to maintain confidentiality; Engineer A complied.
Engineer A was obligated to notify appropriate public authorities of the imminent structural danger to tenants notwithstanding the attorney's instruction to maintain confidentiality, because the paramount public welfare obligation pre-empts attorney-directed confidentiality when the safety risk is immediate and serious.
Upon receiving the attorney's confidentiality instruction after reporting the structural defect findings
Engineer A Attorney Confidentiality Instruction Imminent Structural Danger Non-Override
Engineer A was retained by the owner's attorney as a forensic expert witness in a tenant quality-of-use lawsuit; upon discovering serious structural defects constituting an immediate threat to tenant safety, the attorney instructed Engineer A to maintain confidentiality; Engineer A complied, violating this constraint.
Attorney Instruction Imminent Structural Danger Confidentiality Non-Override Constraint
Engineer A was constrained from treating the attorney's confidentiality instruction as a bar to disclosing the discovered imminent structural danger to tenants and public authorities; the attorney's litigation authority did not extend to suppressing life-safety findings.
NSPE Code of Ethics Section II.1 (public safety paramount); NSPE Code Section II.1.c (confidentiality exception for public safety endangerment)
From the moment Engineer A reported structural findings to the attorney and received the confidentiality instruction
Engineer A BER 82-2 Benevolent Motive Non-Justification Recognition Failure
Benevolent Motive Non-Justification Recognition Capability
Engineer A in BER 82-2 failed to recognize that the absence of ulterior motive or intent to harm the client did not render the unauthorized disclosure of the home inspection report to the real estate firm ethically permissible.
BER 82-2: Engineer A's disclosure to real estate firm was not motivated by personal gain or intent to harm, but the Board found the confidentiality violation nonetheless
Sending report to real estate firm apparently without malicious intent, but failing to recognize that good intentions do not override confidentiality obligations
Engineer A BER 82-2 Client Confidentiality Boundary Recognition Failure
Client Confidentiality Boundary Recognition Capability
Engineer A in BER 82-2 failed to exercise the capability to recognize that sending a carbon copy of the home inspection report to the real estate firm without client consent crossed the confidentiality boundary, even though the disclosure was not motivated by ulterior motive or intent to harm.
BER 82-2: Engineer A performed home inspection for prospective purchaser; sent carbon copy of report to real estate firm without client consent; client objected that this lessened their bargaining position
Sending unauthorized carbon copy of home inspection report to real estate firm representing the seller, without client's prior consent
The client objected that such action prejudiced their interests by lessening their bargaining position with the owners of the residence.
Engineer A BER 82-2 Home Inspection Confidentiality Violating Engineer
{'license': 'Professional Engineer', 'violation': 'Unauthorized third-party disclosure of client report', 'case_reference': 'BER Case 82-2'}
Offered home inspection services to prospective purchasers; performed inspection and prepared written report for client; sent unauthorized carbon copy of report to real estate firm representing the seller — found to have acted unethically by violating client confidentiality.
{'type': 'disclosed_to', 'target': 'Real Estate Firm BER 82-2'}
{'type': 'serves', 'target': 'Client BER 82-2 Prospective Home Purchaser'}
Home Inspection Confidentiality Violating Engineer
Engineer A offered home inspection services, whereby Engineer A undertook to perform an engineering inspection of residences by prospective purchasers
the Board concluded that Engineer A acted unethically in submitting a copy of the home inspection to the real estate firm
Engineer A BER 84-5 Client Insistence Safety Enforcement Failure
Client Insistence or Project Withdrawal Safety Enforcement Capability
Engineer A in BER 84-5 failed to exercise the capability to insist that the client authorize a full-time on-site project representative as a condition of proceeding, or to withdraw from the project when the client refused, instead abandoning the safety recommendation under cost pressure.
BER 84-5: Potentially dangerous construction project; client refused full-time on-site representative; Engineer A proceeded without enforcing safety recommendation
Failure to insist on safety staffing recommendation or withdraw from engagement when client refused on cost grounds
Engineer A BER 84-5 Construction Phase Safety Recommendation Abandoning Engineer
{'license': 'Professional Engineer', 'violation': 'Section II.1.a. NSPE Code of Ethics', 'case_reference': 'BER Case 84-5'}
Retained for complete engineering services on a potentially dangerous construction project; recommended a full-time on-site project representative for safety; abandoned the recommendation when client raised cost objections and proceeded with the work — found in violation of Section II.1.a. of the NSPE Code.
{'type': 'obligation_to', 'target': 'Public Safety'}
{'type': 'serves', 'target': 'Client BER 84-5'}
Construction Phase Safety Recommendation Abandoning Engineer
Engineer A recommended to the client that a full-time, on-site project representative should be hired for the project
Engineer A was in violation of Section II.1.a. of the Code
Engineer A BER 84-5 Cost-Pressure Safety Abandonment Passive Acquiescence Failure
Passive Acquiescence Ethical Insufficiency Self-Recognition Capability
Engineer A in BER 84-5 failed to exercise the capability to recognize that proceeding with the project after the client refused the full-time on-site representative recommendation — without insisting on the recommendation or withdrawing — constituted passive acquiescence to a known safety risk and an independent ethical failure.
BER 84-5: Engineer A recommended full-time on-site project representative for dangerous construction project; client refused on cost grounds; Engineer A proceeded without insisting or withdrawing
Proceeding with project work after client refused safety staffing recommendation on cost grounds, without insisting on the recommendation or withdrawing from the engagement
Engineer A Client-Directed Ethical Violation Non-Compliance Attorney Confidentiality Instruction
The attorney instructed Engineer A to maintain confidentiality over structural defect findings as part of the litigation; Engineer A complied, violating the constraint that client-directed ethical violations must not be followed.
Client-Directed Ethical Violation Non-Compliance Constraint
Engineer A was constrained from complying with the attorney's instruction to maintain confidentiality over imminent structural safety findings; the attorney's instruction directed Engineer A to suppress information in a manner that violated the paramount public safety obligation, and client authority did not override Engineer A's independent ethical obligations.
NSPE Code of Ethics; ethical constraint that client authority does not override engineer's independent ethical obligations
From receipt of attorney confidentiality instruction
Engineer A Client Consent Non-Prerequisite Safety Escalation Attorney Instruction
The attorney instructed Engineer A to maintain confidentiality over the structural findings; Engineer A complied, treating the attorney's instruction as a bar to escalation; this violated the constraint that client consent is not a prerequisite for safety escalation.
Client Consent Non-Prerequisite for Safety Escalation Constraint
Engineer A was constrained from treating the attorney's refusal to permit disclosure (confidentiality instruction) as a bar to escalating the imminent structural danger to appropriate public authorities; attorney consent was not a prerequisite for safety escalation.
NSPE Code of Ethics Section II.1; inviolable constraint that client non-consent does not bar regulatory escalation when public safety is engaged
Engineer A Client Insistence or Withdrawal Safety Enforcement Failure
Engineer A possessed but failed to exercise the capability to insist that the attorney permit disclosure of the imminent structural danger or to withdraw from the forensic engagement when the attorney refused
Attorney instructed Engineer A to maintain confidentiality over discovered structural defects; Engineer A complied rather than insisting on disclosure or withdrawing
Compliance with attorney's suppression instruction without insisting on corrective action or withdrawing from the engagement, constituting a failure to enforce the paramount public safety obligation
Engineer A Client Loyalty vs Public Safety Priority Forensic Expert Context
Engineer A faced a direct conflict between loyalty to the retaining attorney-client and the paramount obligation to protect tenants from imminent structural danger; the priority constraint required Engineer A to choose public safety over client loyalty.
Client Loyalty vs. Public Safety Priority Constraint
Engineer A was constrained by the priority rule that public safety obligations supersede client (attorney) loyalty obligations; the attorney's instruction to maintain confidentiality over imminent structural danger could not override Engineer A's paramount duty to protect tenant safety.
NSPE Code of Ethics Section II.1; priority constraint establishing public safety precedence over client fidelity
From receipt of attorney confidentiality instruction through the duration of the engagement
Engineer A Client Safety Violation Insistence Withdrawal Failure Attorney Confidentiality
The attorney refused to allow disclosure of structural defect findings constituting an immediate threat to tenant safety; Engineer A neither insisted on corrective action nor withdrew from the engagement, instead passively complying.
Engineer A was obligated to insist that the attorney (as client-proxy) allow disclosure of the imminent structural danger or, if the attorney refused, to withdraw from the forensic engagement rather than passively complying with the suppression instruction.
Upon the attorney's refusal to permit disclosure of the structural defect findings
Engineer A Competing Duties Between Attorney Instruction and Safety Obligation
From attorney's confidentiality instruction through Engineer A's compliance decision
Engineer A's compliance decision (factually resolves the tension, but the ethical competing duty persists)
Simultaneous existence of (a) attorney-imposed confidentiality obligation and (b) paramount professional duty to protect public safety from immediate structural threat
Engineer A Competing Duties — Client Loyalty vs. Public Safety Paramount Obligation
From the attorney's confidentiality instruction through Engineer A's compliance decision
Client-Interest vs. Public-Interest Open Conflict State
Engineer A's professional situation after receiving the attorney's confidentiality instruction
Engineer A's compliance decision (resolves the tension, but wrongly — the conflict state persists ethically)
Attorney's instruction to suppress immediate safety findings in the interest of the client's litigation position
Engineer A Confidential Client Information Imminent Safety Override
Engineer A held structural defect findings under attorney-imposed confidentiality; the confidentiality constraint was operative but bounded by the public safety exception; Engineer A failed to apply the exception when the attorney refused to permit disclosure.
Confidential Client Information Constraint
Engineer A's confidentiality obligation to the retaining attorney was bounded by the overriding obligation to disclose imminent structural safety risks to tenants and public authorities when the attorney refused to permit disclosure; the confidentiality constraint was defeasible in the face of imminent public danger.
NSPE Code of Ethics Section II.1.c; confidentiality constraint bounded by public safety override
Engineer A Confidential Report Brief Mention Insufficiency Recognition Failure
Confidential Report Brief Mention Insufficiency for Public Authority Safety Notification Recognition Capability
Engineer A possessed but failed to exercise the capability to recognize that reporting findings to the attorney within the confidential litigation context did not satisfy the independent obligation to notify appropriate public authorities of the imminent structural danger
Engineer A reported structural defect findings to the retaining attorney within the confidential litigation context; complied with attorney's confidentiality instruction without separately notifying public authorities
Treating the report to the attorney as sufficient discharge of safety obligations, without recognizing the separate non-waivable duty to notify public authorities
Engineer A Confidentiality Agreement Scope Limitation Imminent Structural Safety
Confidentiality Agreement Scope Limitation for Imminent Structural Safety Disclosure Capability
Engineer A possessed but failed to exercise the capability to recognize that the attorney's confidentiality instruction did not extend to bar disclosure of structural defects posing imminent danger to building occupants
Attorney instructed Engineer A to maintain confidentiality over structural defect findings as part of litigation; Engineer A complied without recognizing the scope limitation of that instruction
Failure to correctly assess the scope boundary of the attorney's confidentiality instruction; treated the instruction as barring disclosure of imminent safety findings
Engineer A Confidentiality Non-Applicability Public Danger Assessment Failure
Confidentiality Non-Applicability to Public Danger Disclosure Assessment Capability
Engineer A possessed but failed to exercise the capability to correctly determine that the attorney's confidentiality instruction did not apply to bar disclosure of structural defects constituting an immediate public danger
Engineer A retained under attorney-directed confidentiality; discovered structural defects posing immediate tenant danger; failed to assess whether confidentiality applied to bar disclosure of public danger findings
Compliance with attorney's confidentiality instruction without assessing whether the discovered structural defects fell outside the permissible scope of confidentiality as apparent danger to public interest
Engineer A Confidentiality Non-Override Imminent Structural Safety Compliance Failure
Engineer A discovered structural defects constituting an immediate threat to tenant safety while retained under an attorney-client confidentiality framework; the attorney directed confidentiality; Engineer A complied rather than disclosing to authorities or tenants.
Confidentiality Non-Override of Imminent Structural Safety Obligation
Engineer A was obligated to notify affected parties and appropriate public authorities of the imminent structural danger notwithstanding the attorney-implied confidentiality obligation, because the paramount public welfare duty pre-empts confidentiality when the safety risk is immediate and serious.
Upon discovery of the structural defects and receipt of the attorney's confidentiality instruction
Engineer A Confidentiality Pre-emption by Public Safety Recognition
Confidentiality Pre-emption by Public Safety Recognition Capability
Engineer A possessed — but failed to exercise — the capability to recognize that the attorney's confidentiality instruction was pre-empted by the paramount obligation to protect the tenants from immediate structural danger
Engineer A retained as forensic expert witness by building owner's attorney; discovered serious structural defects posing immediate tenant danger; complied with attorney's confidentiality instruction
Failure demonstrated by compliance with attorney's confidentiality instruction despite discovering structural defects constituting an immediate threat to tenant safety
Engineer A Confidentiality Scope Limitation Public Danger Structural Defects
The attorney's confidentiality instruction purported to cover structural defect findings that constitute an immediate threat to tenant safety — a public danger scenario where confidentiality obligations do not apply under the NSPE Code.
Engineer A was obligated to recognize that the attorney's confidentiality instruction did not extend to bar disclosure of structural defect findings constituting an immediate public danger, and to disclose those findings to appropriate regulatory authorities accordingly.
Upon receipt of the attorney's confidentiality instruction
{'license': 'Professional Engineer', 'discovery': 'Imminent structural danger to building tenants', 'obligation': 'Disclose to tenants and public authorities despite confidentiality instruction'}
Retained by attorney on behalf of building owner; discovered imminent structural danger to tenants; instructed by attorney to maintain confidentiality; Board found Engineer A had obligation to disclose directly to tenants and public authorities notwithstanding attorney's confidentiality directive.
{'type': 'indirect_client', 'target': 'Building Owner Current Case'}
{'type': 'obligation_to', 'target': 'Tenants and Public Authorities'}
{'type': 'retained_by', 'target': 'Attorney Current Case'}
engineers not only have the right but also the ethical responsibility to reveal such facts to the proper persons
Engineer A Current Case Confidentiality Agreement Scope Limitation Imminent Safety Failure
Engineer A failed to exercise the capability to recognize that the attorney's confidentiality instruction did not extend to bar disclosure of structural defects posing imminent danger to building occupants, and that the NSPE Code's paramount safety obligation superseded the confidentiality instruction in this context.
Engineer A retained under attorney-directed confidentiality; discovered imminent structural danger; failed to recognize that confidentiality scope did not extend to bar safety disclosure
Compliance with attorney's confidentiality instruction over discovered imminent structural danger, failing to recognize the scope limitation of that confidentiality obligation
Engineer A Current Case Conflict-of-Interest Absence Permissibility Assessment Failure
Engineer A failed to exercise the capability to assess that no conflict of interest existed between the attorney and the building owner, and therefore that the key BER 82-2 barrier to disclosure was absent — meaning safety disclosure to tenants and public authorities was permissible and required.
Engineer A retained by attorney on behalf of building owner; no conflict between attorney and owner; Engineer A failed to recognize this alignment as removing the confidentiality barrier to safety disclosure
Compliance with attorney's confidentiality instruction without assessing whether the attorney-owner alignment removed the BER 82-2 conflict-of-interest barrier to disclosure
Engineer A Current Case Dual NSPE Code Provision Simultaneous Obligation Recognition Failure
Dual NSPE Code Provision Simultaneous Obligation Recognition Capability
Engineer A failed to exercise the capability to recognize that the situation simultaneously triggered both the confidentiality obligation (Section III.4) and the public safety paramount obligation (Section II.1.a./II.1.c.), and that both provisions were operative — with the safety provision taking precedence through the Section II.1.c. exception clause.
Engineer A faced simultaneous confidentiality and safety obligations but failed to recognize both as operative and resolve the conflict correctly
Treating the attorney's confidentiality instruction as wholly displacing the public safety obligation, rather than recognizing both as operative and resolving the conflict through the Section II.1.c. exception
Engineer A Current Case Forensic Expert Objectivity Suppression Resistance Failure
Forensic Expert Witness Objectivity Maintenance Capability
Engineer A failed to exercise the capability to maintain objectivity as a forensic expert witness and resist the attorney's instruction to suppress adverse structural safety findings, instead complying with the confidentiality instruction in a manner inconsistent with the non-advocate objectivity standard.
Engineer A retained as forensic expert witness; discovered serious structural defects; attorney instructed confidentiality; Engineer A failed to maintain objectivity and resist suppression
Compliance with attorney's instruction to maintain confidentiality over discovered structural defects, rather than maintaining independent professional judgment and reporting adverse findings
Engineer A Current Case Section II.1.c. Exception Clause Activation Failure
Engineer A failed to exercise the capability to identify and apply Section II.1.c. of the NSPE Code as the operative exception clause that would have permitted and required disclosure of the imminent structural danger to tenants and public authorities notwithstanding the attorney's confidentiality instruction.
Engineer A discovered imminent structural danger but failed to recognize that Section II.1.c. activated a disclosure obligation overriding the attorney's confidentiality instruction
Compliance with attorney's confidentiality instruction without invoking the Section II.1.c. public safety exception clause that would have authorized and required disclosure
Engineer A Forensic Expert Non-Advocate Independence Attorney Instruction Compliance
Engineer A was retained to provide expert testimony in support of the owner; upon discovering structural defects, the attorney instructed confidentiality; compliance with this instruction caused Engineer A to suppress adverse findings, violating the non-advocate independence constraint.
Engineer Expert Non-Advocate Independence Constraint
Engineer A was constrained from adopting an advocate role by suppressing adverse structural safety findings at the attorney's direction; as a forensic expert witness, Engineer A's duty was to render objective, complete findings regardless of the retaining attorney's adversarial interests.
NSPE Code of Ethics professional independence provisions; principle that engineers are not advocates in rendering professional services
Owner's attorney hires Engineer A to inspect the building and give expert testimony in support of the owner.
Throughout the forensic expert witness engagement
Engineer A Forensic Expert Non-Advocate Objectivity Suppression Violation
Engineer A was retained 'in support of the owner' as a forensic expert; upon discovering structural defects adverse to the owner's litigation position, the attorney instructed suppression; Engineer A complied, adopting an advocate's role rather than an objective expert's role.
Engineer A was obligated to render objective, independent professional findings and resist the attorney's instruction to suppress adverse safety findings, functioning as an assistant to the trier of fact rather than as an advocate for the building owner.
Throughout the forensic engagement, and specifically upon receipt of the attorney's confidentiality instruction
Engineer A Forensic Expert Selective Data Defense Assumption Structural Safety Suppression
Engineer A was retained to support the owner's position in litigation; upon discovering structural defects adverse to the owner's interests, the attorney instructed confidentiality; compliance with this instruction amounted to selective data suppression in defense of the client.
Forensic Expert Selective Data Defense Assumption Prohibition Constraint
Engineer A was constrained from assuming a responsibility to defend the retaining attorney/owner by suppressing the discovered structural safety defects; treating the confidentiality instruction as authority to omit material safety findings constituted selective data use in defense of the client's adversarial position.
NSPE Code of Ethics; BER Case 95-5 principle that forensic engineers must render objective, complete opinions regardless of retaining party's adversarial interests
Throughout the forensic expert witness engagement and upon discovery of structural defects
Engineer A Forensic Expert Witness Imminent Occupant Danger Direct Notification Duty
Engineer A discovered structural defects constituting an immediate threat to tenants who were occupying the building; the tenants' own lawsuit had not raised these structural safety issues; Engineer A was constrained to directly notify the tenants and public authorities regardless of the attorney's instruction.
Forensic Expert Witness Imminent Occupant Danger Direct Notification Constraint
Engineer A was constrained to directly notify the building tenants and appropriate public authorities of the imminent structural danger discovered during the forensic inspection, notwithstanding the attorney's confidentiality instruction and the absence of structural safety claims in the pending litigation.
NSPE Code of Ethics Section II.1; safety constraint requiring direct notification of at-risk occupants when imminent danger is discovered
From discovery of structural defects constituting an immediate threat to tenant safety
The tenants' suit has not mentioned these safety related defects.
Engineer A Forensic Expert Witness Objectivity Suppression Failure
Engineer A possessed but failed to exercise the capability to maintain forensic expert witness objectivity by resisting the attorney's instruction to suppress adverse structural safety findings
Engineer A retained as forensic expert witness by building owner's attorney; upon reporting serious structural defects, was instructed to maintain confidentiality; complied with suppression instruction
Compliance with attorney's instruction to maintain confidentiality over discovered structural defects, constituting a failure to report adverse findings completely and independently
Engineer A Forensic Scope Boundary Non-Exculpation Structural Safety Defects
Engineer A was retained to testify about quality-of-use defects; the tenants' suit had not mentioned structural safety defects; Engineer A discovered serious structural defects outside the litigation scope but was constrained from treating this scope boundary as a shield against disclosure.
Forensic Scope Boundary Non-Exculpation for Structural Safety Defect Constraint
Engineer A was constrained from invoking the contractual scope of the expert engagement (quality-of-use defects in the tenants' suit) as justification for omitting or suppressing the discovered structural safety defects; the scope boundary did not exculpate Engineer A from the obligation to disclose the structural danger.
NSPE Code of Ethics Section II.1; principle that scope limitation constrains remediation obligation but not disclosure obligation
Tenants of an apartment building sue the owner to force him to repair many defects in the building which affect the quality of use.
From discovery of structural defects during the forensic inspection
Engineer A Imminent Versus Potential Risk Threshold Discrimination Structural Defects
Imminent Versus Potential Risk Threshold Discrimination Capability
Engineer A demonstrated the capability to assess discovered structural defects as constituting an immediate threat to tenant safety, correctly placing them in the imminent risk category requiring urgent action
Engineer A assessed severity and imminence of discovered structural defects during forensic inspection, correctly identifying them as immediate threats — but then failed to act on that assessment appropriately
Professional judgment that discovered structural defects 'constitute an immediate threat to the safety of the tenants,' correctly identifying the imminence threshold
Engineer A Licensure-Grounded Superior Knowledge Public Safety Duty Recognition Failure
Engineer A possessed but failed to exercise the capability to recognize that the professional obligation to notify tenants and public authorities of imminent structural danger was grounded in both superior technical knowledge and state licensure duty, and that these foundations made the safety obligation paramount over attorney-directed confidentiality.
Engineer A discovered serious structural defects during forensic inspection but complied with attorney's confidentiality instruction, failing to recognize that licensure-grounded superior knowledge created a non-waivable duty to notify
Failure to act on superior technical knowledge of structural defects constituting imminent danger, despite possessing the engineering education, training, and experience that created the duty to act
Engineer A Litigation Confidentiality Instruction Imminent Safety Suppression Non-Compliance Violation
Engineer A received an attorney instruction to maintain confidentiality over structural defect findings as part of litigation strategy; Engineer A complied with this instruction, thereby suppressing information about an imminent structural threat to tenants; this compliance violated the constraint.
Litigation Confidentiality Instruction Imminent Safety Suppression Non-Compliance Constraint
Engineer A was prohibited from complying with the attorney's litigation confidentiality instruction insofar as that instruction required suppression of findings revealing an imminent threat to the safety of building occupants; compliance with the instruction constituted an independent ethical violation of the public safety paramount canon.
NSPE Code of Ethics Section II.1 and II.1.c; ethical constraint that litigation confidentiality does not extend to suppressing imminent danger information
From receipt of attorney confidentiality instruction through Engineer A's compliance
Engineer A Non-Acquiescence Attorney Economic Litigation Interest Override Safety
The attorney's confidentiality instruction was motivated by litigation strategy (protecting the owner's position in the lawsuit); Engineer A's compliance with this instruction for litigation strategy reasons constituted acquiescence to a client strategic override of the primary safety duty.
Non-Acquiescence to Client Economic Override Constraint
Engineer A was constrained from acquiescing to the attorney's instruction to suppress structural safety findings for litigation strategy reasons; the attorney's interest in maintaining confidentiality for litigation advantage constituted an economic/strategic override of the primary public safety duty that Engineer A was prohibited from accepting.
NSPE Code of Ethics; BER Case 84-5 precedent; constraint prohibiting engineer from abandoning primary safety duty due to client strategic interests
Engineer A Out-of-Scope Safety Observation Structural Defects Disclosure
Engineer A was retained to inspect and testify about quality-of-use defects; during the inspection, Engineer A discovered structural safety defects outside the contracted scope; Engineer A reported these to the attorney but then complied with the confidentiality instruction rather than ensuring disclosure to appropriate authorities.
Out-of-Scope Safety Observation Disclosure Constraint
Engineer A was constrained to disclose the structural safety defects discovered during the forensic inspection to the client (attorney/owner) and appropriate authorities, notwithstanding that the structural defects fell outside the contracted scope of the expert witness engagement (quality-of-use defects).
NSPE Code of Ethics; ethical constraint requiring disclosure of out-of-scope safety deficiencies observed while lawfully present at a client's property
Engineer A Passive Acquiescence Attorney Confidentiality Ethical Failure
Engineer A possessed but failed to exercise the capability to recognize that complying with the attorney's confidentiality instruction after reporting findings constituted an independent ethical failure requiring affirmative insistence on corrective action or withdrawal
Engineer A reported structural defect findings to attorney; attorney instructed confidentiality; Engineer A complied passively without further action to protect tenant safety
Simply complying with the attorney's confidentiality instruction after reporting structural defect findings, without insisting on disclosure or withdrawing from the engagement
Engineer A Passive Acquiescence Attorney Confidentiality Independent Ethical Failure
Engineer A reported the structural defect findings to the attorney and then passively complied with the attorney's confidentiality instruction without further insistence, dissent, or escalation.
Engineer A was obligated to actively insist on corrective action or disclosure after reporting the structural defect findings to the attorney; passive compliance with the confidentiality instruction — after having reported the findings — constitutes an independent ethical failure separate from the failure to disclose.
After reporting findings to the attorney and receiving the confidentiality instruction
Engineer A Passive Acquiescence Attorney Confidentiality Instruction Independent Ethical Violation
Engineer A reported structural findings to the attorney and then complied with the confidentiality instruction without active insistence on disclosure or withdrawal from the engagement; this passive compliance constituted an independent ethical violation.
Passive Safety Acquiescence Independent Ethical Violation Constraint
Engineer A was constrained from passively complying with the attorney's confidentiality instruction without active insistence on disclosure or corrective action; silent compliance with the instruction constituted an independent ethical violation distinct from any failure to escalate to external authorities.
NSPE Code of Ethics; BER Case 84-5 precedent establishing that passive acquiescence to known safety violations is an independent ethical failure
From the moment Engineer A received the attorney's confidentiality instruction
Engineer A Preliminary Structural Instability Assessment Forensic Inspection
Preliminary Structural Instability Assessment Capability
Engineer A demonstrated the technical capability to identify serious structural defects during a forensic building inspection and assess them as constituting an immediate threat to tenant safety
Engineer A retained to inspect building and provide expert testimony; conducted inspection and identified structural defects beyond the scope of the existing habitability litigation
Discovery of serious structural defects during building inspection that were not alleged in the existing tenant litigation
Engineer A Public Safety Paramount Confidentiality Non-Override Compliance Failure
Engineer A discovered serious structural defects constituting an immediate threat to tenant safety during a forensic expert witness engagement; the attorney's confidentiality instruction did not override the paramount public safety obligation, yet Engineer A complied with the instruction.
Engineer A was constrained by the paramount public safety obligation from subordinating the disclosure of an imminent structural threat to tenants to the attorney's confidentiality instruction; compliance with the attorney's instruction violated this inviolable constraint.
NSPE Code of Ethics Section II.1; foundational engineering canon that public safety, health, and welfare must be held paramount
Throughout Engineer A's forensic engagement and upon discovery of structural defects
Engineer A Scope-Exceeding Safety Discovery in Expert Witness Engagement
From Engineer A's discovery of structural defects during the inspection through the end of the described events
Forensic Engagement Scope-Exceeding Safety Discovery State
Engineer A's expert witness engagement for the building owner
Engineer A, retained to inspect and testify about quality-of-use defects, discovers serious structural defects beyond the scope of the tenants' lawsuit
Engineer A Scope Limitation Non-Exculpation Known Structural Safety Risk
Engineer A's engagement scope was limited to quality-of-use defects in the tenants' lawsuit; the structural safety defects were outside this scope; however, Engineer A was constrained from using the scope limitation to justify non-disclosure of the imminent safety threat.
Scope Limitation Non-Exculpation for Known Safety Risk Constraint
Engineer A was constrained from treating the contracted scope of the expert witness engagement (quality-of-use defects) as a complete shield against professional responsibility for the structural safety risk actually observed and assessed during the inspection.
NSPE Code of Ethics; ethical constraint that scope limitation constrains remediation but not disclosure of known safety risks
From the moment structural defects were discovered during the forensic inspection
Engineer A Tenant Direct Notification Imminent Structural Danger Failure
Engineer A discovered structural defects constituting an immediate threat to tenant safety; the tenants are plaintiffs in the litigation but their suit does not mention the structural defects; no other party is positioned to protect them; Engineer A complied with the attorney's confidentiality instruction and did not notify the tenants.
Engineer A was obligated to directly notify the building tenants of the imminent structural danger discovered during the forensic inspection, given that the tenants are identifiable proximate victims of the hazard, are parties to the litigation, and are unaware of the structural defects that constitute an immediate threat to their safety.
Upon discovery of the structural defects and confirmation that the tenants' suit did not address them
Engineer A Written Third-Party Tenant Safety Notification Failure
Written Third-Party Safety Notification Capability
Engineer A possessed but failed to exercise the capability to directly notify the building tenants of the imminent structural danger discovered during the forensic inspection
Building tenants were plaintiffs in habitability litigation but unaware of the specific structural defects discovered by Engineer A; Engineer A complied with attorney's confidentiality instruction and did not notify tenants
Failure to notify tenants of serious structural defects constituting an immediate threat to their safety, despite tenants being the at-risk parties unaware of the specific structural danger
Engineer A rendering written report (BER Case 82-2) before client objection to report sharing (BER Case 82-2)
Engineer A reporting findings to attorney meets attorney instructing confidentiality
Engineer A's compliance with confidentiality during ongoing litigation
Engineer A's inspection before Engineer A reporting findings to attorney
Engineer Complies With Confidentiality Instruction
Engineer Complies With Confidentiality Instruction → Engineer's Ethical Violation Established
Engineer Non-Advocate Status Violated By Engineer A Compliance With Litigation Confidentiality
Attorney instruction to suppress structural defect findings
Expert testimony engagement in civil litigation
Engineer A is retained to give expert testimony 'in support of the owner' and then instructed to suppress adverse safety findings; compliance with this instruction converts Engineer A into a partisan advocate, violating the principle that engineers are not advocates in adversarial proceedings
The attorney's instruction to suppress safety findings attempts to make Engineer A function as a partisan advocate for the owner's litigation position; the engineer's non-advocate status requires refusal and objective disclosure of all material technical findings
Engineer Non-Advocate Status in Adversarial Proceedings
Non-advocate status requires Engineer A to provide complete, objective findings regardless of their adverse effect on the owner's litigation position
Engineer Non-Advocate Status — Forensic Expert Objectivity in Litigation Context
Engineer A's role as forensic expert witness retained by attorney in tenant litigation
Engineer A, retained as a forensic expert witness by the building owner's attorney in tenant litigation, is not an advocate for the building owner's litigation position — Engineer A's role is to provide objective technical analysis, and this non-advocate status means Engineer A cannot be bound by the attorney's confidentiality instruction when that instruction would suppress life-safety information from those at risk.
The forensic expert's non-advocate status means that the attorney's authority to direct the expert's conduct is limited by the expert's independent professional obligations; the attorney cannot use the retention relationship to transform the engineer into a partisan advocate who suppresses safety-critical findings.
Forensic Expert Non-Advocate Status in Civil Litigation
Engineer A's non-advocate status as a forensic expert means the attorney's confidentiality instruction cannot override Engineer A's independent professional obligation to disclose imminent structural danger; the engineer's objectivity and independence are not subordinated to the litigation strategy.
Engineer's Ethical Violation Established
Forensic Engineering Expert Completeness Standard
Engineer A in his role as expert witness for the building owner
Governs Engineer A's duty as a forensic expert to report all material technical findings — including the serious structural defects — rather than selectively withholding safety-critical data to serve the retaining party's litigation position
Forensic Expert Non-Advocate Status Violated By Engineer A Suppression Of Structural Defect Findings
Structural defect findings adverse to retaining party
Engineer A is retained as a forensic expert in civil litigation and discovers structural defects adverse to the owner's litigation position; the attorney instructs suppression of these findings; compliance violates the forensic expert non-advocate principle requiring complete and objective analysis
Engineer A's role as forensic expert requires objective, complete technical analysis; the instruction to suppress adverse findings converts the expert role into advocacy, which is ethically impermissible; the structural defects must be disclosed in the expert report and testimony
Owner's attorney hires Engineer A to inspect the building and give expert testimony in support of the owner. Engineer A discovers serious structural defects in the building which he believes constitute an immediate threat to the safety of the tenants.
Forensic expert non-advocate status requires complete disclosure of all material findings; suppression at attorney's direction is an ethical violation
Immediate Structural Threat to Tenant Safety
From the moment Engineer A identifies the serious structural defects onward, persisting through Engineer A's compliance with the attorney's confidentiality instruction
Not terminated — Engineer A complies with confidentiality instruction, leaving the hazard unaddressed
Engineer A's inspection revealing serious structural defects constituting an immediate threat to tenant safety
Insistence on Client Remedial Action — BER 84-5 Safety Representative Refusal
Engineer A BER 84-5's obligation upon client refusal to authorize full-time safety representative
In BER 84-5, Engineer A should have insisted that the client authorize a full-time on-site project representative as a condition of proceeding with the dangerous construction project, and upon the client's refusal, should have withdrawn from the project rather than proceeding without the required safety staffing.
When a potentially dangerous project requires specific safety measures and the client refuses to authorize them, the engineer's obligation is not merely to note the concern but to insist on the safety measure or withdraw — proceeding without it violates the paramount public safety obligation.
Board of Ethical Review (BER 84-5 precedent)
Insistence on Client Remedial Action or Project Withdrawal Obligation
Engineer A did not recognize this primary obligation. Engineer A, using his best professional judgment, made a recommendation consistent with that obligation. However, when costs concerns where raised by the client, Engineer A abandoned the ethical duty and proceeded with the work on the project.
The engineer's public safety obligation requires insistence on necessary safety measures; client cost concerns do not override this obligation, and the engineer must either secure the safety measure or withdraw from the project.
Engineer A, using his best professional judgment, made a recommendation consistent with that obligation.
However, when costs concerns where raised by the client, Engineer A abandoned the ethical duty and proceeded with the work on the project.
Legal and professional engineering bodies
Engineer A navigating the attorney's confidentiality instruction within the litigation context
Provides legal and professional norms governing Engineer A's conduct in the adversarial legal proceeding, including the interaction between attorney-client privilege, work-product doctrine, and the engineer's independent professional obligations
Legal Profession Analogy Inapplicability Violated By Attorney Imposition Of Confidentiality Norms On Engineer A
Attorney's confidentiality instruction grounded in litigation strategy
Engineer A's professional independence in forensic engagement
The attorney attempts to impose legal advocacy confidentiality norms on Engineer A's professional findings; Engineer A's compliance accepts this importation of legal norms into engineering practice, violating the principle that engineering professional independence cannot be subordinated to the adversarial logic of legal proceedings
The attorney treats Engineer A as subject to attorney-client confidentiality norms applicable to legal advocates; but engineers are not advocates and their professional independence cannot be subordinated to litigation strategy; Engineer A must resist this importation of legal norms
Legal Profession Analogy Inapplicability to Engineering Independence Principle
Engineering professional independence is not subordinated to legal advocacy norms; Engineer A must maintain independent professional judgment and disclose safety findings
Licensure-Grounded Public Duty — State Grant Creates Reciprocal Public Obligation
Engineer A's foundational obligation to protect public safety as a condition of holding an engineering license
The Board grounds Engineer A's public safety obligation in the nature of professional licensure itself — the state grants engineers a license to practice, and in exchange engineers have a duty to engage in practice consistent with the interests of the state and its citizenry, making public safety protection a constitutive element of licensed engineering practice.
The engineering license is not merely a commercial credential but a state grant that creates a reciprocal public duty; this social contract dimension of licensure grounds affirmative public safety obligations that transcend contractual relationships with clients or attorneys.
Licensure-Grounded Public Duty Principle
The licensure-grounded public duty is a foundational obligation that cannot be subordinated to contractual confidentiality arrangements; the state grant of licensure creates a duty to the public that overrides private contractual obligations when public safety is at stake.
This obligation has long been recognized by this board.
Licensure-Grounded Superior Knowledge Public Safety Duty — Engineer A Current Case
Engineer A retained as forensic expert witness by attorney representing building owner; discovered structural defects constituting imminent danger to tenants during inspection; attorney instructed Engineer A to maintain confidentiality
Licensure-Grounded Superior Technical Knowledge Public Safety Duty Constraint
Engineer A's superior technical knowledge of structural defects — acquired through engineering education, training, and experience — and the state's grant of a license to practice created a duty to act on that knowledge to protect the building tenants and public, prohibiting Engineer A from withholding the imminent structural danger findings from those at risk on the basis of the attorney's confidentiality instruction.
NSPE Code of Ethics Section II.1.a.; BER Board Discussion on Licensure-Grounded Public Safety Duty
From the moment Engineer A discovered the structural defects during the forensic inspection
National Society of Professional Engineers
NSPE Code of Ethics for Engineers – Section II.1.a
Section II.1.a. admonishes engineers to recognize that their primary obligation is to protect the public safety, health, property and welfare.
Board of Ethical Review in analyzing Engineer A's conduct
Cited as the primary normative authority establishing engineers' paramount obligation to protect public safety, health, property, and welfare; applied to evaluate Engineer A's decision to proceed with a project despite safety concerns
NSPE Code of Ethics for Engineers – Section II.1.c
Board of Ethical Review in resolving the confidentiality vs. public safety conflict
Cited as the provision creating an explicit exception to client confidentiality obligations when public health and safety is endangered or when disclosure is required by law, grounding the ethical right and responsibility to disclose to tenants and public authorities
Engineer A is told he must maintain this information as confidential
Engineer A in determining whether to comply with attorney's confidentiality instruction
Governs Engineer A's paramount obligation to protect public safety even when serving as a retained expert witness under attorney instruction to maintain confidentiality; establishes that public safety supersedes client loyalty
NSPE Code Section II.1.c. Safety Exception Clause Activation — Current Case Engineer A
Engineer A discovered imminent structural danger during forensic inspection; attorney instructed Engineer A to maintain confidentiality; Section II.1.c. creates explicit exception for safety-endangered situations
NSPE Code Section II.1.c. Safety Exception Clause Confidentiality Override Constraint
Engineer A was required to recognize and invoke the Section II.1.c. exception clause of the NSPE Code, which explicitly permits and requires disclosure of information obtained in a professional capacity when public health and safety is endangered — prohibiting Engineer A from treating the attorney's confidentiality instruction as overriding this code-authorized exception and establishing that Engineer A had not only the right but the ethical responsibility to reveal the structural defect findings to the tenants and public authorities.
NSPE Code of Ethics Section II.1.c.; State Board Rules of Professional Conduct
From the moment Engineer A discovered the imminent structural danger and the attorney refused to permit disclosure
Out-of-Scope Safety Finding Reporting Standard
Engineer A upon discovering structural defects not covered by the tenants' lawsuit
Engineer A was retained to testify about quality-of-use defects, but discovered structural safety defects outside the scope of the tenants' suit; this standard governs whether and how such out-of-scope safety-critical findings must be reported despite client suppression instructions
Owner-Attorney Interest Alignment Confidentiality Conflict-of-Interest Absence — Current Case Engineer A
Attorney retained Engineer A on behalf of building owner; no conflict between attorney and owner regarding structural defect information; distinguished from BER 82-2 where real estate firm's interests were adverse to client's bargaining position
Owner-Attorney Interest Alignment Confidentiality Conflict-of-Interest Absence Constraint
Because no conflict or potential conflict of interest existed between the attorney and the property owner with respect to the structural defect information — the attorney having retained Engineer A on behalf of and for the benefit of the owner — the key predicate for the BER 82-2 confidentiality violation finding was absent, removing a significant barrier to Engineer A's disclosure of the imminent structural danger to the tenants and public authorities.
NSPE Code of Ethics; BER Case 82-2 (distinguished); BER Board Discussion
Owner's Attorney Litigation Attorney Directing Engineer Confidentiality Over Safety Findings
{'role_type': 'Defense attorney for building owner', 'authority': 'Directs scope and confidentiality of expert engagement'}
Represents the building owner in tenant litigation; retains Engineer A as a forensic expert witness; upon receiving Engineer A's report of serious structural defects posing an immediate safety threat, instructs Engineer A to maintain confidentiality over those findings as part of litigation strategy.
{'type': 'directs_confidentiality_over_safety_findings_toward', 'target': 'Engineer A'}
{'type': 'represents', 'target': 'Building Owner'}
{'type': 'retains', 'target': 'Engineer A'}
Litigation Attorney Directing Engineer Confidentiality Over Safety Findings
Passive Acquiescence After Safety Notification Independent Ethical Failure By Engineer A
Engineer A's compliance with attorney confidentiality instruction after reporting findings
Engineer A reports the structural defect findings to the attorney and then passively complies with the confidentiality instruction; this passive acquiescence after notification constitutes an independent ethical failure beyond any initial disclosure obligation
Engineer A did notify the attorney of the findings, but then passively accepted the confidentiality instruction without insisting on remedial action or disclosure to tenants; this passive compliance is itself an independent ethical violation — the paramountcy of public safety requires active insistence, not passive deference
Passive Acquiescence After Safety Notification as Independent Ethical Failure
Upon reporting the findings to the attorney, Engineer A is told he must maintain this information as confidential as it is part of a lawsuit. Engineer A complys with the request of the attorney.
Passive acquiescence after safety notification is an independent ethical failure; Engineer A must insist on disclosure or withdraw from the engagement
Passive Acquiescence to Attorney Confidentiality Instruction — Current Case Engineer A
Engineer A discovered imminent structural danger; attorney instructed confidentiality; Engineer A's passive compliance with that instruction without insisting on disclosure or withdrawing constituted independent ethical violation
Engineer A's passive compliance with the attorney's confidentiality instruction — without actively insisting on disclosure to tenants and public authorities or withdrawing from the engagement — constituted an independent ethical violation distinct from any failure to report to external authorities, establishing that passive non-objection in the face of known imminent structural danger is itself an ethical failure.
NSPE Code of Ethics Section II.1.a.; Passive Safety Acquiescence Independent Ethical Violation Constraint
From the moment Engineer A received the attorney's confidentiality instruction regarding the discovered structural defects
Passive Acquiescence — BER 84-5 Cost-Pressure Abandonment
Engineer A BER 84-5's decision to proceed with construction project after client refused full-time safety representative
In BER 84-5, Engineer A recommended a full-time on-site project representative for a potentially dangerous construction project, but when the client objected on cost grounds, Engineer A abandoned this safety recommendation and proceeded with the work — constituting passive acquiescence to client economic pressure after making a safety notification.
Making a safety recommendation and then abandoning it when the client objects on cost grounds is not ethically neutral — it is an independent ethical failure because the engineer's paramount obligation to public safety requires insistence, not mere mention followed by acquiescence.
Public safety obligation overrides client economic concerns; Engineer A's abandonment of the safety recommendation upon cost objection was a violation of Section II.1.a. because it substituted client economic interests for the primary public safety obligation.
Public Safety Paramount Over Attorney Confidentiality — Current Case Engineer A
Engineer A retained as forensic expert witness; discovered imminent structural danger; attorney instructed confidentiality; public safety paramount obligation required disclosure notwithstanding attorney instruction
Engineer A's paramount obligation to protect public health and safety — as the most basic and fundamental ethical obligation of engineers — prohibited Engineer A from subordinating that obligation to the attorney's confidentiality instruction, establishing that the attorney's authority over litigation strategy did not extend to suppressing safety-critical findings that implicated the welfare of building tenants and the public.
NSPE Code of Ethics Section II.1.a.; BER Board Discussion
Although the public health and safety clearly is the most basic and fundamental ethical obligation of engineers, other important ethical obligations exist for which engineers must be ever mindful.
Public Welfare Paramount Invoked By Engineer A In Structural Defect Discovery
Serious structural defects posing immediate threat to building tenants
Engineer A discovers serious structural defects constituting an immediate threat to tenant safety; the paramount public welfare obligation requires disclosure to tenants or proper authorities despite the attorney's confidentiality instruction
In this context, public welfare paramount requires Engineer A to override the attorney's confidentiality instruction and disclose the imminent structural danger to the tenants or appropriate authorities; the tenants are identifiable persons facing immediate physical harm who have no other means of learning of the danger
Public welfare paramount overrides the confidentiality instruction; Engineer A's compliance with the attorney's instruction constitutes a violation of this paramount obligation
Public Welfare Paramount — Licensure as Public Trust Grounding
Engineer A's obligation to warn tenants of imminent structural danger despite attorney confidentiality instruction
The Board grounds Engineer A's public safety obligation not only in the Code but in the nature of state licensure itself — engineers are granted a license by the state and therefore have a duty to engage in practice consistent with the interests of the state and its citizenry, making public welfare protection a condition of the license, not merely a code provision.
Public welfare paramount is not merely a code rule but is rooted in the social contract of professional licensure — the state grants engineers a monopoly on licensed practice in exchange for their commitment to serve the public interest, making public safety protection a constitutive element of what it means to hold an engineering license.
Public welfare paramount overrides attorney-directed confidentiality when structural defects constitute an immediate and imminent threat to building occupants; the licensure-grounded duty to the public cannot be subordinated to a litigation attorney's confidentiality instruction.
The obligation of the engineer to protect the public health and safety has long been acknowledged by the Code of Ethics and by the Board of Ethical Review.
Public Welfare Paramount — Superior Technical Knowledge as Duty Basis
Engineer A's duty to warn tenants who are unaware of the structural danger discovered through expert inspection
The Board articulates that the engineer's public safety obligation rests on the recognition that engineers possess superior technical knowledge relative to the lay public — this epistemic asymmetry grounds a duty of care toward those who cannot evaluate engineering risks themselves.
The public welfare paramount principle is grounded in epistemic asymmetry: engineers know things the public cannot know, and this superior knowledge creates a corresponding duty to protect those who are exposed to risks they cannot perceive or evaluate.
The epistemic asymmetry rationale reinforces the priority of public safety disclosure — the tenants cannot protect themselves from a danger they do not know exists and cannot technically evaluate, making Engineer A's disclosure obligation especially strong.
Was it ethical for Engineer A to conceal his knowledge of the safety-related defects in view of the fact that it was an attorney who told him he was legally bound to maintain confidentiality?
At what point in the engagement did Engineer A's obligation to the public supersede any duty of loyalty to the attorney-client relationship, and did Engineer A have an independent obligation to clarify the scope and limits of confidentiality before accepting the engagement?
Does the fact that the tenants' lawsuit was already active and before a court create an additional avenue — such as a motion to the court or notification to the judge — through which Engineer A could have discharged his public safety duty without directly violating attorney-client litigation protocols?
Should Engineer A have immediately withdrawn from the expert witness engagement upon receiving the attorney's confidentiality instruction, and would withdrawal alone have been sufficient to satisfy his ethical obligations, or was affirmative disclosure still required?
Is an attorney legally empowered to impose attorney-client confidentiality norms on an independent engineering expert retained as a consultant, and if not, does Engineer A bear responsibility for failing to recognize and resist the legal invalidity of that instruction?
Does the principle that confidentiality is a core professional obligation conflict with the principle that public welfare is paramount when an engineer possesses superior technical knowledge of an imminent structural danger, and how should the NSPE Code's internal hierarchy resolve that conflict?
Does the principle that an engineer serving as a forensic expert must maintain objectivity and non-advocate status conflict with the principle of client loyalty and confidentiality when the attorney directing the engagement instructs the engineer to suppress safety-critical findings?
Does the principle that a benevolent or legally-advised motive does not cure an ethical violation — established in BER 82-2 — conflict with the principle that an engineer acting in good-faith reliance on an attorney's legal instruction deserves some mitigation of ethical culpability, and how should the Board weigh these competing considerations?
Does the principle requiring direct notification of third-party affected parties — specifically the tenants facing imminent structural danger — conflict with the principle that confidentiality agreements entered into at the outset of an engagement are binding, and does the imminence and severity of the safety threat determine which principle prevails?
From a deontological perspective, did Engineer A fulfill their categorical duty to protect public safety when they chose to comply with the attorney's confidentiality instruction, given that the NSPE Code treats public welfare as a paramount and non-negotiable obligation that cannot be subordinated to client loyalty or litigation strategy?
From a consequentialist perspective, did the aggregate harm produced by Engineer A's silence — including continued occupancy of a structurally dangerous building, potential injury or death to tenants, and erosion of public trust in licensed engineers — outweigh any benefit derived from honoring litigation confidentiality, and does this harm calculus independently condemn Engineer A's compliance regardless of the attorney's instruction?
From a virtue ethics perspective, did Engineer A demonstrate the professional integrity, courage, and trustworthiness expected of a licensed forensic expert when they suppressed known structural safety findings under attorney instruction, and does this compliance reveal a character deficiency — specifically a failure of moral courage — that is incompatible with the virtues the engineering profession demands?
From a deontological perspective grounded in role-based duties, does Engineer A's status as a licensed forensic expert — rather than a legal advocate — impose a distinct and non-delegable duty of objectivity and public disclosure that the attorney had no professional authority to override, meaning that Engineer A's compliance itself constituted a violation of the engineer's role-specific obligations independent of any general public safety duty?
If Engineer A had immediately notified the tenants and public authorities upon discovering the structural defects — before reporting to the attorney — would the attorney's subsequent confidentiality instruction have had any practical or ethical force, and would Engineer A's prior disclosure have been fully consistent with the NSPE Code's public safety exception?
If Engineer A had refused to accept the confidentiality instruction and instead conditioned continued engagement on the attorney's agreement to disclose the structural defects to the court or the tenants, would this approach have resolved the ethical conflict without requiring Engineer A to unilaterally breach client confidentiality, and does the BER 84-5 precedent on insisting on remedial action before withdrawal support this as the ethically required first step?
If the structural defects discovered by Engineer A had been less severe — posing a potential rather than an immediate threat to tenant safety — would the NSPE Code's Section II.1.c. confidentiality exception still have been triggered, and how does the threshold of imminence affect the ethical calculus between confidentiality and disclosure in forensic engineering engagements?
If the tenants' lawsuit had already included the structural safety defects as part of their claims — making the defects part of the active litigation record — would Engineer A's ethical obligation to disclose independently to the tenants and public authorities have been diminished, or does the existence of an imminent physical danger to occupants create a disclosure duty that persists regardless of whether the danger is already known to some parties in the litigation?
Real Estate Firm BER 82-2 Unauthorized Report Recipient
{'case_reference': 'BER Case 82-2', 'relationship_to_transaction': "Seller's representative"}
Real estate firm representing the seller of the residence; received an unauthorized carbon copy of the home inspection report from Engineer A without the client's consent, thereby prejudicing the client's bargaining position.
{'type': 'received_from', 'target': 'Engineer A BER 82-2 Home Inspection Confidentiality Violating Engineer'}
a carbon copy was sent to the real estate firm handling the sale of the residence
Safety Findings Suppressed by Litigation Confidentiality Claim
Confidentiality Instruction Suppressing Safety Report State
Engineer A's discovered structural safety findings
Not terminated within the case facts — Engineer A complies
Attorney's explicit instruction to treat structural defect findings as confidential litigation material
State professional engineering licensing boards
State Board Rules of Professional Conduct for Professional Engineers
State Licensing Board Rules of Professional Conduct
Board of Ethical Review as supplementary authority supporting mandatory disclosure
Referenced as a potential independent legal/regulatory source that may require engineers to disclose imminent public safety dangers, reinforcing the ethical obligation derived from the NSPE Code
State Board Rules Safety Disclosure Independent Reinforcement — Current Case Engineer A
BER Board noted that state board rules of professional conduct might independently require engineers to disclose imminent public safety dangers, reinforcing the NSPE Code's ethical obligation
State Board Rules Safety Disclosure Independent Reinforcement Constraint
Engineer A's obligation to disclose the imminent structural danger to tenants and public authorities was independently reinforced — and potentially mandated — by state board rules of professional conduct, operating as a separate regulatory source of the disclosure duty alongside the NSPE Code's ethical obligation under Section II.1.c.
State Board Rules of Professional Conduct; NSPE Code of Ethics Section II.1.c.
From the moment Engineer A discovered the imminent structural danger
Structural Defects Unmentioned in Active Litigation
From Engineer A's discovery of the structural defects onward
Incidental Structural Deficiency Discovery State
Serious structural defects discovered by Engineer A during expert witness inspection
Not terminated — defects remain undisclosed and unaddressed
Engineer A's inspection revealing structural defects not within the scope of the tenants' quality-of-use lawsuit
Tenant Lawsuit Filed → Structural Defects Discovered
Tenants Current Case Tenant Litigation Plaintiff Stakeholder
{'case_reference': 'Current case', 'exposure': 'Imminent structural danger'}
Building tenants exposed to imminent structural danger discovered by Engineer A; identified by the Board as parties who must be immediately informed of the danger; their safety constitutes the paramount public interest obligation overriding the attorney's confidentiality directive.
{'type': 'endangered_by', 'target': 'Building structural defect'}
{'type': 'must_be_notified_by', 'target': 'Engineer A Current Case Attorney-Directed Confidentiality-Bound Safety-Discovering Engineer'}
Third-Party Affected Party Direct Notification Obligation Owed To Tenants By Engineer A
Building tenants exposed to imminent structural danger
Structural defects discovered during inspection
The tenants are identifiable third parties directly exposed to imminent structural danger discovered by Engineer A; Engineer A is obligated to notify them directly of the risk, notwithstanding the attorney's confidentiality instruction
The tenants are the paradigm case of identifiable third parties directly exposed to imminent hazard; they are unaware of the structural defects (their suit has not mentioned them); Engineer A must notify them directly as they cannot protect themselves without this information
Engineer A discovers serious structural defects in the building which he believes constitute an immediate threat to the safety of the tenants. The tenants' suit has not mentioned these safety related defects.
Direct notification obligation to tenants overrides confidentiality instruction; Engineer A must notify tenants or proper authorities immediately
Third-Party Affected Party Direct Notification — Tenants of Imminent Structural Danger
Engineer A's obligation to notify tenants directly of imminent structural defects discovered during attorney-retained forensic inspection
Engineer A had an obligation to directly notify the building tenants of the imminent structural danger discovered during the forensic inspection, because the tenants are the identifiable third parties directly exposed to the hazard and would not otherwise receive timely warning through the litigation channel.
When engineers discover safety deficiencies that create imminent danger to identifiable third parties (building tenants), direct notification to those parties is obligatory — the litigation channel through which the engineer was retained does not substitute for direct notification to those at risk.
The obligation to directly notify tenants overrides the confidentiality obligation to the attorney-client; the tenants' exposure to imminent structural danger makes direct notification a non-negotiable ethical requirement.
attorney hiring Engineer A before Engineer A's inspection of the building
attorney instructing confidentiality before Engineer A complying with confidentiality request
discovery of structural defects during Engineer A's building inspection
home inspection (BER Case 82-2) before Engineer A rendering written report (BER Case 82-2)
tenant lawsuit (quality-of-use defects) before attorney hiring Engineer A
tenant lawsuit (quality-of-use defects) overlaps Engineer A's inspection and confidentiality compliance