Accept Client B Engagement → Ethics Complaint Filed
Allegation-Adjudication Distinction Applied to Complaint Non-Disclosure
Ethics complaint filed by Client C alleging lack of competence in services similar to those being rendered to Client B
Faithful Agent Obligation Within Ethical Limits
Pending Competence Complaint Disclosure Obligation to Current Client
The Board holds that Engineer A is not ethically compelled to automatically disclose to Client B the ethics complaint filed by Client C, because a complaint is a mere allegation — not a finding of fact or conclusion of law — and engineers should not be compelled to disclose potentially damaging allegations that could be false, baseless, or maliciously motivated.
The distinction between allegation and adjudicated finding is the central analytical pivot: the Board treats an unresolved complaint as categorically different from a disciplinary finding, such that the disclosure obligations triggered by the latter do not automatically apply to the former.
Engineer A Ethics Complaint Non-Disclosing Engineer
Allegation-Adjudication Distinction in Disclosure Obligation
A complaint is a mere allegation and does not amount to a finding of fact or conclusion of law. No engineer should be compelled to disclose potentially damaging allegations about his professional practice -- allegations that could be false, baseless, and motivated by some malicious intent.
The Board resolves the tension by holding that the allegation-adjudication distinction negates the automatic disclosure obligation while leaving open the possibility of prudential voluntary disclosure — the engineer must weigh factors and take prudent action rather than automatically disclose or automatically withhold.
A complaint is a mere allegation and does not amount to a finding of fact or conclusion of law.
Instead, Engineer A should weigh all factors and, depending upon the nature and seriousness of the charges, take prudent action, which might include providing Client B with appropriate background information.
No engineer should be compelled to disclose potentially damaging allegations about his professional practice -- allegations that could be false, baseless, and motivated by some malicious intent.
Allegation-Adjudication Distinction Invoked by Engineer A Non-Disclosure Decision
Decision whether to disclose Client C's pending competence complaint to Client B
Engineer A determined that the pending ethics complaint — an unproven allegation by Client C — did not require disclosure to Client B, reasoning that an unresolved complaint is not an adjudicated finding of wrongdoing.
In this context, the principle supports Engineer A's position that a mere allegation does not compel disclosure; however, the Board's analysis suggests this principle does not fully resolve the question when the complaint concerns competence for materially similar services actively being rendered.
Engineer A does not believe it is necessary to notify Client B of the pending complaint.
The Allegation-Adjudication Distinction provides partial support for non-disclosure but is overridden by the faithful agent and informed decision-making obligations when the complaint directly concerns competence for the same type of services currently being rendered.
Client C alleges that Engineer A lacked the competence to perform the services in question
Engineer A does not believe it is necessary to notify Client B of the pending complaint
Allegation vs. Adjudication Disclosure Calibration — Engineer A Pending Complaint
Client C alleged Engineer A lacked competence for services similar to those being performed for Client B; the complaint was pending and unadjudicated at the time of the disclosure decision
Allegation vs. Adjudication Disclosure Distinction Constraint
Engineer A's disclosure obligation to Client B was calibrated by the fact that the ethics complaint filed by Client C constituted a mere allegation — not an adjudicated finding of incompetence — prohibiting Engineer A from treating the pending complaint as equivalent to a disciplinary adjudication for disclosure purposes, while also prohibiting Engineer A from treating the allegation as entirely immaterial given its similarity to the services being rendered to Client B.
NSPE BER Case 97-11; contrast with BER Case 03-6 (adjudicated wrongdoing compels disclosure)
Client C alleges that Engineer A lacked the competence to perform the services in question.
Throughout the period the complaint remained pending and unresolved while Engineer A served Client B
Allegation vs. Adjudication Disclosure Distinction Engineer A Complaint Case 97-11
The Board's analysis turned on the distinction between an allegation and an adjudication, establishing that the disclosure obligation is calibrated by this distinction.
Engineer A was constrained to distinguish between the pending, unadjudicated ethics complaint (a mere allegation) and an adjudicated finding of misconduct when assessing disclosure obligations to Client B — the former not compelling automatic disclosure, the latter potentially doing so.
NSPE Code Sections II.3.a, II.4.a; BER Case No. 97-11
During the period the ethics complaint remained pending and unadjudicated
Allegation vs. Adjudication Disclosure Threshold in Engineer A's Complaint
Coextensive with the pending complaint period before any adjudication
A complaint is a mere allegation and does not amount to a finding of fact or conclusion of law
Allegation vs. Adjudication Disclosure Threshold Differential State
The ethical distinction between Engineer A's pending (unresolved) complaint and a hypothetical adjudicated finding, determining whether disclosure to Client B is mandatory or discretionary
Formal adjudication of the complaint (which would shift the disclosure obligation)
No engineer should be compelled to disclose potentially damaging allegations about his professional practice -- allegations that could be false, baseless, and motivated by some malicious intent
depending upon the nature and seriousness of the charges, take prudent action
Client C filing a complaint that remains unresolved and unadjudicated
Allegation vs. Adjudication Disclosure Threshold — Pending Complaint
Concurrent with the pending complaint period; crystallized when Engineer A decides not to disclose
The ethical question of whether a pending, unadjudicated ethics complaint (mere allegation) triggers the same disclosure obligation as an adjudicated finding of wrongdoing
Not resolved within the case narrative; complaint remains pending and unadjudicated
Engineer A's determination that notification to Client B is unnecessary because the complaint is only an allegation
BER Board Key-Employee vs Non-Key-Employee Distinction BER 83-1 vs 90-4
Key-Employee vs Non-Key-Employee Brochure Listing Materiality Distinction Capability
The BER demonstrated capability to distinguish between Engineer A's 'key employee' designation in BER 83-1 (material misrepresentation) and Engineer X's non-key-employee status in BER 90-4 (permissible listing under totality of circumstances), using this distinction to reach different ethical conclusions in the two cases.
Comparative analysis of BER Cases 83-1 and 90-4 in the current case discussion
Comparative analysis of BER 83-1 and BER 90-4 identifying key-employee designation as the critical factual distinction determining materiality of post-departure brochure listing
In Case No. 83-1, Engineer A was highlighted in the firm's promotional brochure as a 'key employee.' Under the totality of the facts and circumstances of the case, it was apparent that Engineer B's continued inclusion of Engineer A's name in the brochure constituted an overt misrepresentation of an important fact concerning the overall makeup of the firm.
The Board concluded that it was not unethical for Engineer Z to continue to represent Engineer X as an employee of Firm Y under the circumstances described.
BER Board Multi-Precedent Brochure Synthesis Current Case
BER Multi-Precedent Brochure Personnel Misrepresentation Synthesis Capability
The BER demonstrated capability to synthesize BER Cases 83-1 and 90-4 — identifying their shared normative framework (dual-element pertinent fact test, valence-neutral deception standard) and their critical factual distinctions (key vs. non-key employee) — and apply the synthesized framework to a novel case involving pending complaint non-disclosure.
Current case discussion synthesizing BER 83-1 and 90-4 to analyze Engineer A's pending complaint non-disclosure
Three-case triangulation across BER 83-1, BER 90-4, and the current case, extracting transferable principles while recognizing the present case's distinct factual posture
The Board has reviewed a number of factual situations over the years relating to the question of misleading clients through the misrepresentation of professional qualifications.
The facts in the present case are somewhat different than those involved in BER Case Nos. 83-1 and 90-4, because the earlier cases involved efforts by an engineering firm to enhance the firm's credentials by implying that the firm had a higher level of expertise than it actually had.
BER Board Pertinent Fact Dual-Element Test Application BER 83-1
Pertinent Fact Dual-Element Misrepresentation Test Application Capability
The BER demonstrated capability to apply the two-part conjunctive test under NSPE Code II.5.a — assessing both (1) whether Engineer A's name constituted a 'pertinent fact' and (2) whether Engineer B distributed the brochure with intent to enhance firm qualifications — concluding both elements were satisfied in BER Case 83-1.
BER Case 83-1 — Engineer B distributed brochures listing Engineer A as key employee after termination notice and after actual departure
Analysis of BER Case 83-1 applying the dual-element pertinent fact misrepresentation test to Engineer B's post-termination brochure distribution
We determined whether (1) Engineer B in fact misrepresented 'pertinent facts' and (2) whether it was the intent and purpose of Engineer B to 'enhance the firm's qualifications and work.' We noted that both factors must be present for a violation of NSPE Code Section II.5.a to exist.
We concluded that the inclusion of the name of Engineer A in the firm's brochure constituted a misrepresentation of 'pertinent facts.'
BER Board Valence-Neutral Deception Assessment Current Case
Valence-Neutral Deception Assessment Capability
The BER demonstrated capability to apply a valence-neutral deception standard, explicitly holding that whether information reflects positively or negatively on the engineer is irrelevant to the deception analysis — the relevant question is whether the communication or omission misleads or deceives the client.
Current case — BER analysis bridging BER 83-1/90-4 brochure cases to Engineer A's pending complaint non-disclosure situation
Explicit articulation of the valence-neutral principle in transitioning from the brochure misrepresentation cases (positive valence) to the pending complaint non-disclosure case (negative valence)
However, the Board does not believe the nature of the information -- whether positive or negative -- is at issue.
The issue of greatest importance in each of these cases appears not to be whether a client would be pleased or disappointed with the information, but whether the information communicated (or in the present case not communicated) amounts to an act that misleads or deceives the client.
NSPE Board of Ethical Review Case No. 83-1
For example, in Case No. 83-1, Engineer A worked for Engineer B.
The Board also ruled that it was unethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination.
The Board ruled that it was not unethical for Engineer B to distribute a previously printed brochure listing Engineer A as a key employee, providing Engineer B apprised the prospective client, during negotiation, of Engineer A's pending termination.
The facts in the present case are somewhat different than those involved in BER Case Nos. 83-1 and 90-4
NSPE Board of Ethical Review for analogical reasoning in the present case
Precedent establishing that distributing a brochure listing a terminated engineer as a key employee after actual termination constitutes an unethical misrepresentation of pertinent facts with intent to enhance firm qualifications; also established the two-factor test (misrepresentation of pertinent facts + intent to enhance qualifications) for NSPE Code Section II.5.a violations
NSPE Board of Ethical Review Case No. 90-4
In Case No. 90-4, Engineer X was employed by Firm Y, a medium-sized engineering consulting firm controlled by Engineer Z.
After reviewing the facts, the Board concluded that it was not unethical for Engineer Z to continue to represent Engineer X as an employee of Firm Y under the circumstances described.
The facts in the present case are somewhat different than those involved in BER Case Nos. 83-1 and 90-4, because the earlier cases involved efforts by an engineering firm to enhance the firm's credentials
NSPE Board of Ethical Review for analogical reasoning and distinguishing the present case
Precedent establishing that continued representation of a departing engineer as a firm employee was not unethical where the engineer was not highlighted as a 'key employee' and the firm's hydrology work was not a significant percentage of its practice; used to distinguish the present case by comparing the significance of the departing engineer's role
Brochure Personnel Currency Disclosure Obligation Applied to Case 83-1 Notice Period
Previously printed brochure listing Engineer A as key employee distributed during notice period before actual termination
Marketing Material Qualification Accuracy Obligation
Pertinent Fact Misrepresentation Intent-and-Purpose Dual-Element Test
The Board holds that Engineer B's distribution of the brochure listing Engineer A during the notice period was not unethical, provided Engineer B apprised prospective clients during negotiation of Engineer A's pending termination — establishing a conditional permissibility rule for notice-period brochure use contingent on contemporaneous corrective disclosure.
The notice-period conditional permissibility rule reflects a practical accommodation for the administrative burden of immediately updating printed materials, balanced against the client's right to accurate information — the corrective disclosure during negotiation cures the potential misleading effect of the stale brochure.
Engineer B Credential-Misrepresenting Firm Principal
Brochure Personnel Currency Disclosure During Active Negotiation Obligation
The conditional permissibility rule resolves the tension between administrative practicality and client accuracy rights by requiring active corrective disclosure rather than immediate material withdrawal.
Brochure Personnel Currency Obligation Distinguished in Case 90-4
Firm brochure and resume listing Engineer X as employee after Engineer X gave two weeks notice of departure
Comparative Case Precedent Distinguishing Obligation
The Board distinguishes Case 90-4 from Case 83-1 by finding that Engineer Z's continued listing of departing Engineer X was not unethical under the circumstances — Engineer X was not a 'key employee' in the sense that her hydrology expertise did not constitute a significant percentage of the firm's work, so the pertinence threshold for triggering the disclosure obligation was not met.
The materiality of the departing engineer's role to the firm's overall capability is a key factor in determining whether the personnel listing constitutes a pertinent fact whose continued inclusion triggers the disclosure obligation — non-key personnel departures may not reach the pertinence threshold.
Engineer Z Credential-Misrepresenting Firm Principal Case 90-4
The Board resolves the apparent tension between Cases 83-1 and 90-4 by identifying the material factual distinction: 'key employee' status is the operative variable, and its absence in Case 90-4 negates the violation finding.
Engineer X is one of the few engineers in Firm Y with expertise in hydrology, but the firm's work in the field of hydrology did not constitute a significant percentage of the firm's work.
In Case No. 83-1 , Engineer A was highlighted in the firm's promotional brochure as a 'key employee.' Under the totality of the facts and circumstances of the case, it was apparent that Engineer B's continued inclusion of Engineer A's name in the brochure constituted an overt misrepresentation of an important fact concerning the overall makeup of the firm.
In Case No. 90-4 , Engineer X was employed by Firm Y, a medium-sized engineering consulting firm controlled by Engineer Z.
Case No. 83-1 and Case No. 90-4 rulings before current case analysis involving Engineer A and Client B
Case No. 83-1 ruling before Case No. 90-4 ruling
CausalLink_Continue Rendering Services Po
CausalLink_Decide Against Disclosing Ethi
CausalLink_Engineer B Distributes Brochur
CausalLink_Engineer Z Continues Listing D
CausalLink_Prepare Plans and CPM Schedule
Client B Current Client of Ethics-Complained Engineer
{'relationship_to_complaint': 'Not the complainant; a concurrent active client', 'interest': "Potential exposure to third-party questions about Engineer A's conduct"}
Current client receiving engineering services from Engineer A while Engineer A is subject to a pending ethics complaint filed by Client C. The Board analyzed whether Engineer A owed Client B a disclosure obligation regarding the complaint, concluding that prudential (not mandatory) disclosure of background information was advisable.
{'type': 'served_by', 'target': 'Engineer A Ethics Complaint Non-Disclosing Engineer'}
Current Client of Ethics-Complained Engineer
the Board believes Engineer A should have weighed providing Client B with some limited background information in a dispassionate and nonprejudicial matter for the benefit of all concerned
Client B will be able to respond to comments or questions by third parties
demonstrating to Client B that Engineer A is acting in a professional and responsible manner
Client B Manufacturing Facility Design Client
{'project_type': 'Manufacturing facility', 'services_received': 'Design services and CPM scheduling', 'discovery_method': 'Learned of complaint through another party, not from Engineer A', 'response': 'Expressed upset and asserted expectation of proactive disclosure'}
Client B retains Engineer A for design services and CPM scheduling on a manufacturing facility. Client B later learns through a third party of the pending ethics complaint against Engineer A and asserts that Engineer A should have proactively disclosed this information.
{'type': 'retains', 'target': 'Engineer A Ethics Complaint Non-Disclosing Engineer'}
{'type': 'uninformed_by', 'target': 'Engineer A Ethics Complaint Non-Disclosing Engineer'}
Engineer A is retained by Client B to perform design services and provide a Critical Path Method (CPM) schedule for a manufacturing facility
Client B learns of the ethics complaint filed against Engineer A and tells Engineer A that he is upset by the allegations and that Engineer A should have brought the matter to Client B's attention
Client B Trust Undermined by Non-Disclosure Discovery
From Client B's independent discovery of the complaint onward
Through another party, Client B learns of the ethics complaint filed against Engineer A
Employer Trust Undermined by Initial Non-Disclosure State
Client B's discovery — through a third party rather than from Engineer A — that a pending ethics complaint existed, retroactively undermining the trust basis of the professional relationship
Client B tells Engineer A that he is upset by the allegations and that Engineer A should have brought the matter to Client B's attention
Client B learning of the ethics complaint through another party rather than from Engineer A
Client C Competence Allegation — Similar Services Context
From the filing of Client C's complaint through the case narrative
Competence Misrepresentation to Client State
The allegation by Client C that Engineer A lacked competence to perform services similar in nature to those currently being rendered to Client B, creating a contextual competence-relevance signal
relating to services provided on a project for Client C that are similar to the services being performed for Client B
Client C filing an ethics complaint alleging Engineer A lacked competence for similar services
Client C Prior Client Ethics Complainant
{'complaint_allegation': 'Engineer A lacked competence to perform the services in question', 'complaint_filed_with': 'State board of professional engineers', 'services_context': 'Similar to services currently being performed for Client B'}
Client C previously retained Engineer A for services similar to those now being performed for Client B, and has filed a formal ethics complaint with the state board of professional engineers alleging that Engineer A lacked the competence to perform those services.
{'type': 'complainant_against', 'target': 'Engineer A Licensee Subject to Professional Conduct Complaint'}
{'type': 'prior_client_of', 'target': 'Engineer A Ethics Complaint Non-Disclosing Engineer'}
an ethics complaint filed against Engineer A by Client C relating to services provided on a project for Client C that are similar to the services being performed for Client B
Client Relationship Engineer A with Client B During Pending Complaint
Throughout the period of Engineer A's engagement with Client B, concurrent with the pending complaint
an engineer clearly has an ethical obligation to act as a faithful agent and trustee for the benefit of a client
Engineer A's active professional relationship with Client B, which creates the context for the disclosure obligation analysis
Completion or termination of the Client B engagement
Engineer A should weigh all factors and, depending upon the nature and seriousness of the charges, take prudent action, which might include providing Client B with appropriate background information
Engineer A's engagement by Client B for professional services
Comparative Precedent Distinguishing Obligation Applied Across Cases 83-1, 90-4, and Present Case
Board's reasoning process in determining whether non-disclosure of pending complaint violates NSPE Code
Valence-Neutral Misleading Information Standard in Professional Disclosure
The Board systematically distinguishes the present case from Cases 83-1 and 90-4 by identifying the material factual difference: the earlier cases involved positive credential inflation (implying higher expertise than the firm possessed), while the present case involves potential negative information (a pending complaint); the Board then holds that this distinction does not alter the analytical framework but does affect the outcome through the allegation-adjudication distinction.
The comparative precedent analysis is the Board's primary methodological tool — it uses Cases 83-1 and 90-4 as reference points to identify what is analytically the same (the misleading-communication framework) and what is different (positive vs. negative information valence, allegation vs. adjudicated fact) in the present case.
The Board's careful distinguishing of precedents allows it to apply a consistent analytical framework while reaching a different outcome — the precedents establish the framework but the material factual differences determine the result.
Considering the earlier cases, the Board noted that the facts in Case No. 90-4 , while similar, are different in one important area.
The facts in the present case are somewhat different than those involved in BER Case Nos. 83-1 and 90-4 , because the earlier cases involved efforts by an engineering firm to enhance the firm's credentials by implying that the firm had a higher level of expertise than it actually had.
Competence Self-Assessment Under Pending Complaint — Engineer A
Client C alleged Engineer A lacked competence for services similar to those being performed for Client B; Engineer A was obligated to honestly assess whether this allegation had merit affecting the current engagement
Engineer A was constrained by the boundaries of demonstrated competence to honestly assess whether the pending competence complaint raised legitimate questions about Engineer A's ability to competently perform the services being rendered to Client B, and to refrain from continuing services if the self-assessment revealed a genuine competence deficiency.
NSPE Code of Ethics Section II.2; Professional Competence Standard
Throughout the active engagement with Client B while the competence complaint was pending
It was ethical for Engineer A not to report to Client B the ethics complaint filed against Engineer A by Client C.
The Board's conclusion that non-disclosure was ethical rests entirely on the allegation-adjudication distinction — the principle that an unproven complaint does not carry the same moral weight as an adjudicated finding of misconduct. While this distinction is defensible as a general rule, the Board did not adequately account for the similar-services context, which meaningfully elevates the materiality of the pending complaint. When Client C's competence allegation directly parallels the scope of services Engineer A is actively rendering to Client B, the complaint is no longer merely a private professional matter between Engineer A and a prior client — it becomes information that bears directly on Client B's ability to make an informed decision about the ongoing engagement. The allegation-adjudication distinction appropriately prevents unproven claims from being treated as established facts, but it does not follow that such claims carry zero informational value to a current client receiving substantially similar services. The Board's reasoning would have been stronger had it explicitly addressed why the similar-services overlap did not elevate the disclosure threshold, rather than treating the unresolved status of the complaint as categorically dispositive.
The Board's application of the valence-neutral standard in the brochure cases — finding that omissions of negative information can be as deceptive as omissions of positive information — creates an internal tension with its conclusion in the present case that Engineer A's silence about a pending competence complaint was ethical. In the brochure cases, the Board found that failing to update promotional materials to reflect a departed employee's status was deceptive precisely because prospective clients would reasonably rely on the listed credentials as an implicit representation of current firm capability. By analogy, Engineer A's silence about a pending competence complaint in a similar-services context could reasonably be interpreted by Client B as an implicit representation that no relevant professional concerns existed. The Board did not resolve this tension; it distinguished the present case on the grounds that the complaint was unproven, but this distinction addresses the weight of the information rather than whether the omission itself could function as a misleading representation. A more complete analysis would have acknowledged that the valence-neutral standard, if applied consistently, creates at minimum a prudential obligation — and arguably an ethical one — to disclose pending competence concerns when they are directly relevant to active services, even if the disclosure is framed as contextual background rather than an admission of fault.
The Board's recommendation that voluntary disclosure would have been prudent — while stopping short of declaring it obligatory — reveals an underexplored dimension of the faithful agent obligation. The faithful agent standard requires Engineer A to act in Client B's best interest and to enable informed decision-making. The Board implicitly acknowledged that Client B had a legitimate relational interest in knowing about the pending complaint, as evidenced by its recognition that proactive disclosure would have been wise. However, by framing this as prudence rather than obligation, the Board effectively permitted Engineer A to prioritize personal professional privacy over Client B's capacity for informed consent regarding the ongoing engagement. The fact that Client B discovered the complaint through a third party and expressed that trust had been undermined is not merely a relational consequence — it is evidence that the non-disclosure produced a material harm to the professional relationship that the faithful agent obligation was designed to prevent. A more rigorous application of the faithful agent standard would recognize that where non-disclosure foreseeably damages the client relationship and undermines the client's ability to make informed decisions about an active engagement, the prudential and ethical thresholds converge. The Board's framing of disclosure as merely wise rather than required may therefore understate the strength of the faithful agent obligation in contexts where similar-services materiality and third-party discovery risk are both present.
The similar-services context does elevate the materiality of the pending complaint, but not to the level of a mandatory disclosure obligation. When Client C's competence allegation concerns services nearly identical in nature to those Engineer A is actively performing for Client B, the complaint is no longer a purely private professional matter — it bears a direct logical relationship to the quality of work Client B is currently receiving. This contextual overlap means that a reasonable client in Client B's position would likely consider the information significant to their ongoing decision-making about the engagement. However, materiality alone does not convert a prudential consideration into an ethical mandate. The allegation-adjudication distinction retains force even in the similar-services context: an unresolved complaint is not evidence of actual incompetence, and treating it as disclosure-triggering would effectively penalize engineers for the mere filing of complaints, regardless of merit. The Board's conclusion that non-disclosure was ethical therefore holds, but it holds more narrowly than the Board's reasoning suggests. The similar-services context represents a meaningful ethical weight that the Board underweighted, and it is the primary reason why voluntary disclosure would have been not merely prudent but genuinely aligned with the faithful agent obligation.
The relational damage caused by non-disclosure — specifically, Client B's discovery of the complaint through a third party and the resulting erosion of trust — does constitute an independent ethical concern, though not one that retroactively renders Engineer A's original decision unethical. The Board's conclusion that non-disclosure was ethical was rendered at the moment of the decision, not in light of its consequences. However, from a consequentialist perspective, the outcome reveals a structural flaw in the Board's reasoning: if the faithful agent obligation is meant to protect the client's ability to make informed decisions and preserve the integrity of the professional relationship, then a decision that predictably results in the client feeling deceived — even if technically permissible — fails to satisfy the spirit of that obligation. The fact that Client B explicitly stated Engineer A should have disclosed the complaint is not merely a relational grievance; it is evidence that the client's reasonable expectations of transparency were not met. This does not establish an ethical violation, but it does establish that the Board's framing of disclosure as merely prudent underestimates the weight of the faithful agent obligation when the client's trust is materially at stake and the information is directly relevant to ongoing services.
The burden of determining when a pending ethics complaint becomes information a current client has a legitimate interest in knowing should rest primarily with the engineer, not the client or the licensing board. The client lacks the information necessary to make the determination, and the licensing board's role is adjudicative rather than advisory on disclosure obligations. The engineer, as the faithful agent, is the only party positioned to assess the materiality of the complaint relative to the current engagement. This means Engineer A bore the responsibility of evaluating whether the competence allegation raised by Client C was sufficiently related to the services being performed for Client B to warrant disclosure. The Board's conclusion that non-disclosure was ethical implicitly assigns this burden to the engineer but then declines to hold Engineer A accountable for the outcome of that assessment. A more coherent framework would hold that the engineer's duty as faithful agent requires an affirmative materiality assessment whenever a pending complaint arises during an active engagement, and that the result of that assessment — not merely the unresolved status of the complaint — should govern the disclosure decision. Under this framework, the similar-services context in Engineer A's case would have counseled disclosure, even if the allegation-adjudication distinction ultimately permitted silence.
Engineer A had an independent obligation to assess whether the competence concerns raised by Client C had substantive validity, and that self-assessment should have influenced the decision about whether to continue performing similar services for Client B without any disclosure. The NSPE Code's professional competence standard is not merely reactive to external adjudication — it places an affirmative duty on engineers to practice only within their areas of competence. If Engineer A, upon receiving the complaint, conducted an honest self-assessment and concluded that the competence concerns had merit, then continuing to perform similar services for Client B without disclosure would represent a compounded ethical failure: both a potential competence violation and a failure of faithful agency. Conversely, if Engineer A concluded the complaint was without merit, that self-assessment should have been documented and could have informed a contextual disclosure to Client B that framed the complaint accurately. The Board's analysis does not address this self-assessment dimension at all, treating the complaint as purely a disclosure question rather than also a competence question. This omission weakens the Board's conclusion by leaving unexamined the possibility that Engineer A's silence was not merely a permissible exercise of discretion but a failure to engage with the substantive professional question the complaint raised.
The faithful agent obligation and the allegation-adjudication distinction are in genuine tension in this case, and the Board resolves that tension in favor of the distinction without fully accounting for the cost to the faithful agent obligation. The faithful agent obligation requires Engineer A to act in Client B's best interest and to provide Client B with information necessary for informed decision-making about the engagement. A pending competence complaint involving services nearly identical to those being performed for Client B is precisely the kind of information that bears on Client B's ability to make an informed decision — including the decision of whether to seek a second opinion, add oversight mechanisms, or simply be alert to potential quality concerns. The allegation-adjudication distinction correctly holds that an unresolved complaint is not a finding of misconduct and should not be treated as such. But this distinction addresses the epistemic weight of the complaint, not whether the complaint's existence is relevant to Client B's decision-making. These are separate questions. The Board conflates them by treating the allegation-adjudication distinction as a complete answer to the faithful agent obligation, when in fact the distinction only establishes that Engineer A need not represent the complaint as proven misconduct — it does not establish that the complaint's existence is irrelevant to Client B's interests.
Engineer A's silence about the pending competence complaint, in a context where similar services were being actively rendered to Client B, risks functioning as an implicit representation that no relevant professional concerns exist — which is precisely the kind of misleading omission the honesty and non-deception obligation is designed to prevent. The Board applied a valence-neutral deception standard in the brochure cases, finding that omissions of negative information can be as deceptive as omissions of positive information. Yet the Board declined to apply equivalent scrutiny to Engineer A's silence, treating the privacy right and the allegation-adjudication distinction as sufficient to insulate the non-disclosure from deception analysis. This asymmetry is difficult to justify on principled grounds. A prospective client relying on a firm brochure that omits a departed engineer's name is misled about the firm's current capabilities; a current client who is not informed of a pending competence complaint involving services identical to those being performed is similarly misled — not about a historical credential, but about a live professional risk. The Board's failure to apply the valence-neutral standard consistently across these cases suggests that the allegation-adjudication distinction is doing more work in the Board's reasoning than it can legitimately bear, effectively shielding a potentially material omission from the deception analysis that the Board's own precedents would otherwise require.
The Board's framing of disclosure as merely prudent rather than obligatory does undermine the strength of the faithful agent obligation in contexts where client trust is materially at stake, and this framing creates a problematic precedent. By characterizing voluntary disclosure as wise but not required, the Board effectively establishes that an engineer may remain silent about a pending competence complaint even when the complaint directly parallels active services, so long as the complaint remains unresolved. This standard places the entire burden of relational risk on the client, who has no independent means of discovering the complaint and must rely on the engineer's judgment about what information is relevant to their interests. The prudential disclosure recommendation, while well-intentioned, lacks the normative force needed to give the faithful agent obligation meaningful content in this context. A more coherent resolution would have been to hold that the similar-services context, combined with the faithful agent obligation, created at minimum a strong presumption in favor of disclosure — one that Engineer A could have rebutted by demonstrating that the complaint was frivolous or entirely unrelated to the current engagement. This would have preserved the allegation-adjudication distinction while giving the faithful agent obligation the weight it deserves when a client's informed decision-making is genuinely at stake.
From a deontological perspective, Engineer A did not fully satisfy the duty of faithful agency toward Client B by withholding information about the pending competence complaint, even though the Board concluded the non-disclosure was not unethical. The deontological analysis turns on whether the duty of faithful agency is purely outcome-neutral — concerned only with avoiding active deception — or whether it imposes an affirmative duty to share information that a reasonable client would consider material to their ongoing engagement. The NSPE Code's faithful agent obligation, read in conjunction with the honesty and non-deception provisions, supports the latter interpretation. A faithful agent does not merely refrain from lying; a faithful agent acts in the principal's interest, which includes ensuring the principal has the information needed to protect that interest. Engineer A's decision to withhold information about a complaint that directly implicated the competence being exercised on Client B's project was not consistent with this affirmative conception of faithful agency, regardless of the complaint's unresolved status. The allegation-adjudication distinction is a valid epistemic constraint — it tells us how to characterize the complaint, not whether to disclose its existence. Engineer A could have disclosed the complaint's existence while clearly framing it as an unresolved allegation, thereby satisfying both the faithful agent duty and the allegation-adjudication distinction simultaneously.
From a consequentialist perspective, Engineer A's decision not to disclose the pending ethics complaint produced worse overall outcomes than disclosure would have, and this consequentialist assessment reinforces the view that the Board's conclusion — while technically defensible — represents a suboptimal ethical path. The actual outcome was that Client B discovered the complaint through a third party, experienced a loss of trust, and explicitly communicated that Engineer A should have disclosed the matter. This sequence of events produced precisely the relational harm that proactive disclosure was positioned to prevent. Had Engineer A disclosed the complaint with appropriate context — framing it as an unresolved allegation, explaining the nature of the services involved, and affirming confidence in their own competence — Client B would have received the same information but in a form that demonstrated transparency and respect for the client's decision-making autonomy. The consequentialist calculus strongly favors disclosure: the costs of disclosure (potential client concern, awkward conversation) are substantially lower than the costs of non-disclosure followed by third-party discovery (loss of trust, damaged relationship, reputational harm). The Board's conclusion that non-disclosure was ethical is not refuted by this analysis, but the consequentialist framework reveals that the Board's conclusion describes the floor of ethical permissibility, not the ceiling of ethical conduct.
From a virtue ethics perspective, Engineer A's choice of silence over voluntary disclosure, when a competence allegation directly paralleled the scope of active services being rendered to Client B, reflects a failure of professional integrity — not because silence was prohibited, but because it was inconsistent with the character traits the NSPE Code implicitly demands of licensed engineers. Virtue ethics evaluates conduct not merely by whether it complies with rules but by whether it reflects the dispositions of an honest, trustworthy, and client-centered professional. An engineer of genuine integrity, upon receiving a competence complaint involving services nearly identical to those being performed for a current client, would recognize that the client's trust and informed decision-making are values worth protecting even at some personal cost. The decision to remain silent, while technically permissible, reflects a disposition oriented toward self-protection rather than client service. This is not to say Engineer A acted dishonestly in the conventional sense — no false statement was made. But the virtue ethics framework asks whether Engineer A acted as the kind of professional that clients, the public, and the profession itself can trust, and the answer, given the similar-services context and the eventual relational damage, is that Engineer A fell short of that standard.
The Board's ethical conclusion in the actual case rests almost entirely on the unresolved procedural status of the complaint rather than on any substantive assessment of Engineer A's actual competence, and the hypothetical of a pre-completion adjudicated finding reveals this dependency clearly. If the state licensing board had found Engineer A guilty of the competence violation alleged by Client C before Engineer A completed the project for Client B, the ethical calculus would shift dramatically: an adjudicated finding of incompetence in services nearly identical to those being performed for Client B would almost certainly trigger a disclosure obligation, and continuing to perform those services without disclosure would likely constitute both a competence violation and a faithful agent failure. This hypothetical confirms that the Board's conclusion is procedurally contingent — it holds only because the complaint remained unresolved. What the hypothetical also reveals is that the Board's framework provides no mechanism for evaluating whether the underlying competence concern had merit independent of the adjudication outcome. An engineer who is genuinely incompetent to perform certain services does not become competent by virtue of a complaint remaining unresolved, and a client whose interests are at risk from that incompetence is not protected by the allegation-adjudication distinction. The Board's framework is therefore better understood as a disclosure rule than as a competence protection mechanism, and its ethical adequacy depends on the assumption that the adjudication process will ultimately surface genuine competence failures — an assumption that may not always hold.
The intermediate disclosure approach — in which Engineer A proactively provides Client B with limited background information about the pending complaint, framing it as an unresolved allegation while affirming confidence in the competence being applied to Client B's project — represents a superior ethical path that the Board's binary framing of the question obscures. This approach would have simultaneously honored the allegation-adjudication distinction (by making clear that the complaint is unproven and contested), satisfied the faithful agent obligation (by ensuring Client B had access to relevant information), and preserved the trust relationship (by ensuring Client B received the information from Engineer A rather than a third party). The Board's analysis treats the question as a binary choice between full disclosure and complete silence, but the ethical landscape between those poles is rich and practically navigable. Engineer A's failure to consider or adopt this intermediate approach represents a missed opportunity to reconcile the competing principles at stake. The Board's prudential recommendation implicitly endorses something like this intermediate approach without naming it, and a more complete analysis would have articulated it explicitly as the ethically optimal course.
The counterfactual scenario in which Client B explicitly asked Engineer A at the outset of the engagement whether any ethics complaints or competence challenges had been filed against Engineer A reveals a critical asymmetry in the Board's framework: passive non-disclosure and active deception in response to a direct inquiry are treated as categorically different ethical acts, and rightly so. Had Client B posed such a direct question and Engineer A denied or concealed the existence of the pending complaint, that conduct would constitute a clear violation of the honesty and non-deception provisions of the Code, regardless of the complaint's adjudication status. This scenario demonstrates that the Board's conclusion of ethical non-disclosure is contingent on the absence of a direct inquiry — a contingency the Board does not make explicit. The adequacy of passive non-disclosure as an ethical standard is therefore limited to situations where the client has not affirmatively sought the information. This analysis also reveals that engineers in Engineer A's position bear a heightened obligation to ensure that their silence does not function as an implicit representation that no such complaints exist, particularly when clients might reasonably assume that a retained professional would volunteer such information.
The Board resolved the tension between the Allegation-Adjudication Distinction and the Faithful Agent Obligation by treating adjudication status as a threshold gate rather than a balancing factor. Under this resolution, the Faithful Agent Obligation does not independently compel disclosure of information that has not been substantiated through a formal proceeding, even when that information is materially relevant to the current engagement. The practical effect is that the Faithful Agent Obligation is subordinated to the Allegation-Adjudication Distinction whenever the underlying information consists solely of an unproven allegation. This prioritization reflects a structural judgment that premature disclosure of unresolved complaints would expose engineers to reputational harm disproportionate to the informational benefit provided to clients, and that the integrity of the adjudicative process itself is a value the Code implicitly protects. However, this resolution leaves unaddressed the scenario where the allegation is domain-specific and directly mirrors the services being rendered to the current client, a factual configuration present in this case that the Board did not treat as independently dispositive. The case therefore teaches that the Faithful Agent Obligation has a ceiling defined by allegation status, but does not clarify whether domain-specific similarity to current services constitutes an exception to that ceiling.
The Board's application of the Valence-Neutral Standard in the brochure cases — where it found that omissions of negative information are as ethically problematic as omissions of positive information — stands in unresolved tension with its conclusion that Engineer A's silence about a pending competence complaint was not unethical. In Cases 83-1 and 90-4, the Board found that failing to update a brochure to reflect a departed employee's status was deceptive precisely because it allowed a false impression to persist in the minds of prospective clients, regardless of whether the omitted information was favorable or unfavorable to the firm. Yet in the present case, Engineer A's silence about a pending competence allegation — in a context where Client B was actively relying on Engineer A's competence for similar services — was permitted to stand without equivalent scrutiny. The Board distinguished the cases on the grounds that the brochure omissions involved affirmative misrepresentations embedded in marketing materials, while Engineer A's non-disclosure involved a private professional matter not yet adjudicated. This distinction is defensible but reveals a structural asymmetry: the Valence-Neutral Standard was deployed to police passive omissions in commercial representations but was not extended to police passive omissions in active client relationships where the stakes for the client may be comparably high. The case teaches that the Honesty and Non-Deception Obligation operates more stringently in the context of formal marketing representations than in the context of ongoing service relationships, and that the Allegation-Adjudication Distinction provides a doctrinal escape from the Valence-Neutral Standard that is unavailable in the brochure context.
The Board's framing of voluntary disclosure as merely prudent rather than obligatory reveals a structural gap in how the Prudential Disclosure Recommendation interacts with the Faithful Agent Obligation: when the Board declines to convert a prudential recommendation into a binding duty, it effectively places the entire burden of disclosure judgment on the engineer rather than on any objective standard tied to client interest. The Board acknowledged that Engineer A would have been wise to disclose the pending complaint and that the relational damage caused by Client B's third-party discovery was a foreseeable consequence of non-disclosure. Yet it stopped short of finding that this foreseeable relational harm — which Client B explicitly confirmed by expressing that Engineer A should have disclosed — constituted an independent ethical violation. This resolution teaches that the NSPE framework, as applied by the Board, treats client trust as a relational value that engineers are encouraged but not required to protect through proactive disclosure when the information in question has not been adjudicated. The consequence is that the Faithful Agent Obligation is effectively narrowed to cover only affirmative misrepresentations and conflicts of interest, not the full range of information that a reasonable client would consider material to their decision to continue the engagement. Engineers and clients are left without a clear standard for when a pending professional complaint crosses from a private matter into one that the faithful agent duty compels disclosure of, and the burden of that ambiguity falls on the client rather than the engineer.
Continue Rendering Services Post-Complaint
Should Engineer A disclose the pending ethics complaint to Client B, or treat it as a private professional matter protected by the allegation-adjudication distinction?
Engineer A must decide whether to disclose to Client B the existence of a pending ethics complaint filed by Client C alleging incompetence in services materially similar to those currently being performed for Client B. The complaint is unresolved and unproven, but the similar-services context elevates its potential materiality to Client B's ongoing engagement decision.
Proactively inform Client B of the pending complaint at the time it is received, clearly framing it as an unresolved allegation, explaining the nature of the prior services involved, and affirming confidence in competence for the current engagement — thereby satisfying both the faithful agent obligation and the allegation-adjudication distinction simultaneously.
Treat the pending complaint as a private professional matter protected by the allegation-adjudication distinction, declining to disclose it to Client B on the grounds that an unproven allegation does not constitute established fact and could be false, baseless, or maliciously motivated.
Consult the state licensing board or a professional ethics advisor to determine whether the similar-services context creates a heightened disclosure obligation before making a unilateral decision to disclose or remain silent, thereby distributing the burden of the materiality assessment beyond the engineer alone.
Should Engineer A conduct an affirmative self-assessment of the competence concerns raised by Client C's complaint and allow that assessment to govern the decision to continue services for Client B, or treat the complaint's unresolved status as sufficient to proceed without further internal review?
Engineer A must independently assess whether the competence concerns raised by Client C's complaint have substantive validity — not merely procedural status — and determine whether that self-assessment should influence the decision to continue performing materially similar services for Client B without any disclosure or remediation.
Undertake a documented, honest evaluation of whether the competence concerns raised by Client C's complaint have substantive merit relative to the services being performed for Client B, and allow the outcome of that assessment — not merely the complaint's unresolved status — to govern decisions about continuing services and whether to disclose.
Treat the complaint's unresolved procedural status as sufficient grounds to continue performing services for Client B without conducting a separate internal competence review, on the basis that an unproven allegation does not constitute evidence of actual incompetence and should not disrupt an active engagement.
Without disclosing the complaint to Client B, arrange for a qualified peer to independently review the technical work being performed for Client B as a quality assurance measure, thereby addressing the substantive competence concern raised by the complaint while preserving the allegation-adjudication distinction in the client relationship.
Should the Board treat the Allegation-Adjudication Distinction as a threshold condition that categorically suspends Engineer A's faithful agent disclosure duty, or should it weigh the similar-services context as a materiality-elevating factor that limits the distinction's override effect?
The Board must determine whether the Faithful Agent Obligation — which requires Engineer A to act in Client B's best interest and enable informed decision-making — is overridden by the Allegation-Adjudication Distinction, or whether the similar-services context creates a heightened materiality that prevents the distinction from functioning as a complete answer to the faithful agent duty.
Treat the Allegation-Adjudication Distinction as a threshold condition that categorically suspends the faithful agent's proactive disclosure duty whenever a complaint remains unresolved, regardless of the degree of overlap between the complaint's subject matter and the current client's services.
Treat the Allegation-Adjudication Distinction as one contextual factor to be weighed against the similar-services materiality elevation, holding that when a pending competence complaint directly parallels active services, the faithful agent obligation creates at minimum a strong presumption in favor of disclosure that the distinction alone cannot override.
Hold that the faithful agent obligation requires Engineer A to conduct an affirmative materiality assessment whenever a pending complaint arises during an active engagement, and that the result of that assessment — not merely the complaint's unresolved status — should govern the disclosure decision, with the similar-services context counseling disclosure in this case.
Should the Board apply the Valence-Neutral Misleading Information Standard to Engineer A's silence about the pending complaint with the same scrutiny used in the brochure cases, or treat the Allegation-Adjudication Distinction as a principled basis for exempting active-relationship omissions from equivalent deception analysis?
The Board must determine whether the Valence-Neutral Misleading Information Standard — applied in brochure cases to find that omissions of negative information are as deceptive as omissions of positive information — should be applied with equivalent scrutiny to Engineer A's silence about a pending competence complaint in an active client relationship, or whether the Allegation-Adjudication Distinction provides a principled basis for treating these contexts differently.
Extend the same deception scrutiny used in the brochure cases to Engineer A's silence, holding that an omission of a pending competence complaint in an active similar-services context can function as an implicit representation that no relevant professional concerns exist — a misleading impression regardless of the information's negative valence.
Treat the Allegation-Adjudication Distinction as a principled basis for exempting Engineer A's silence from the Valence-Neutral Standard, on the grounds that an unproven complaint differs categorically from a false credential embedded in a marketing document — the distinction addresses the epistemic status of the omitted information, not merely its valence.
Acknowledge that the Valence-Neutral Standard applies in both marketing and active-relationship contexts but with graduated intensity: require Engineer A to assess whether silence in the similar-services context creates a false impression of professional standing, and hold that where it does, the deception analysis applies regardless of the complaint's unresolved status.
Should the Board frame Engineer A's disclosure decision as merely prudent — leaving the engineer with full discretion — or should it hold that the foreseeable relational harm and similar-services materiality cause the prudential and ethical thresholds to converge, making disclosure effectively obligatory?
The Board must determine whether the Prudential Disclosure Recommendation — framing voluntary disclosure as wise but not obligatory — adequately discharges the Faithful Agent Obligation when non-disclosure foreseeably damages the client relationship and undermines the client's capacity for informed consent, or whether the prudential and ethical thresholds converge in the similar-services context such that the distinction between 'wise' and 'required' collapses.
Characterize voluntary disclosure as wise and professionally advisable while stopping short of declaring it obligatory, preserving engineer discretion on the grounds that an unresolved allegation does not rise to the level of established fact that triggers a mandatory faithful agent disclosure duty.
Find that where non-disclosure foreseeably damages the client relationship, undermines informed consent, and is confirmed by the client as a breach of expected trust, the prudential and ethical thresholds converge — making disclosure effectively obligatory in the similar-services context regardless of the complaint's unresolved status.
Hold that the similar-services context combined with the faithful agent obligation creates a rebuttable presumption in favor of disclosure — one that Engineer A could overcome by demonstrating the complaint was frivolous or entirely unrelated to the current engagement — thereby preserving the allegation-adjudication distinction while giving the faithful agent obligation meaningful normative content.
Should the Board's ethical analysis rest on the complaint's unresolved procedural status as categorically sufficient to permit non-disclosure and continuation of services, or should it require an independent substantive assessment of whether the competence concerns had merit before concluding that non-disclosure was ethical?
The Board must determine whether its ethical conclusion — that Engineer A's non-disclosure was permissible — rests on a substantive assessment of Engineer A's actual competence or solely on the procedural status of the complaint as unresolved, and whether this procedural dependency reveals that the allegation-adjudication distinction functions as a disclosure rule rather than a competence protection mechanism.
Hold that the complaint's unresolved procedural status is categorically sufficient to permit both non-disclosure and continuation of services, on the grounds that an unproven allegation does not constitute evidence of actual incompetence and the adjudication process is the appropriate mechanism for surfacing genuine competence failures.
Hold that the NSPE competence standard requires Engineer A to conduct an affirmative self-assessment of whether the competence concerns raised by Client C's complaint have substantive merit before concluding that continuation of similar services for Client B is ethically permissible, and that the result of that assessment — not merely the complaint's procedural status — should govern both the continuation and disclosure decisions.
Explicitly separate the disclosure question (governed by the allegation-adjudication distinction) from the competence question (governed by the NSPE competence standard), holding that while non-disclosure may be permissible under the former, the latter independently requires Engineer A to assess whether the competence concerns had merit and to take appropriate remedial action if they did — regardless of the complaint's unresolved status.
Decide Against Disclosing Ethics Complaint
Decide Against Disclosing Ethics Complaint → Client B Expresses Displeasure
Decide Against Disclosing Ethics Complaint → Client B Learns of Complaint
Departed Engineer Credential Misuse Correction Obligation Contextually Applied
Continued listing of departed engineers in firm brochures and resumes after departure
The case analysis of Cases 83-1 and 90-4 implicitly addresses the departed engineer's position: Engineer A (Case 83-1) and Engineer X (Case 90-4) are the subjects of credential misuse by their former firms, and the Board's analysis establishes the ethical boundaries within which such misuse becomes a violation — informing the departed engineer's understanding of when their name's continued use by a former firm crosses into impermissible misrepresentation.
While the Board's primary focus is on the firm principal's obligations, the analysis implicitly informs the departed engineer's own obligation to take corrective action when they become aware that their former firm is misrepresenting their continued affiliation — particularly in the Case 83-1 scenario where the misrepresentation is clear and the departed engineer's name is being used to enhance firm qualifications.
Engineer A Terminated Staff Engineer Case 83-1
Engineer X Terminated Staff Engineer Case 90-4
Departed Engineer Credential Misuse Correction Obligation
Engineer B distributed the brochure while Engineer A was still employed but had been given a notice of termination. Moreover, Engineer B distributed the brochure after Engineer A had left the firm.
The Board's analysis focuses on the firm principal's obligations, leaving the departed engineer's corrective obligations as an implicit corollary — the departed engineer who knows their name is being misused has a professional interest in demanding correction.
Engineer B distributed the brochure while Engineer A was still employed but had been given a notice of termination.
Engineer Z, a principal in Firm Y, continued to distribute a brochure identifying Engineer X as an employee of the firm and list Engineer X on the firm resume.
Moreover, Engineer B distributed the brochure after Engineer A had left the firm.
Departed Engineer Credential Misuse Correction Obligation Invoked by Engineer A and Engineer X Departures
Prospective Clients Relying on Firm Brochure
At-Will Employment Symmetry and Engineer Mobility Right
Competitive Employment Freedom With Confidentiality Constraint
Upon receiving termination notice or giving notice of departure, Engineer A and Engineer X each had an affirmative obligation to ensure their former firms ceased listing them as current employees in brochures distributed to prospective clients.
A departing engineer's professional integrity requires not merely passively accepting credential misuse by a former employer but actively demanding correction, because the engineer's name and qualifications are being used to mislead prospective clients without authorization.
Engineer X gave two weeks notice of intent to move to another firm, after which Engineer Z continued to distribute brochures identifying Engineer X as an employee of Firm Y.
The engineer's interest in a clean departure does not excuse passive acquiescence to credential misrepresentation; the obligation to demand correction is affirmative and arises immediately upon departure or notice thereof.
Engineer A Terminated Staff Engineer Case 83-1: Received termination notice from Engineer B, continued working during notice period, and was subsequently listed as a key employee in firm brochures
Engineer X Terminated Staff Engineer Case 90-4: gave two weeks notice of intent to move to another firm, after which Engineer Z continued to distribute brochures identifying Engineer X as an employee
Engineer A Active Client Relationship with Client B
From retention by Client B through the period of service delivery and beyond
Engineer A's professional engagement with Client B for design services and CPM schedule on manufacturing facility
Not terminated within the case narrative
Client B retaining Engineer A to perform design services and prepare a CPM schedule
Engineer A Allegation-Adjudication Distinction Application in Non-Disclosure Decision
Allegation vs Adjudication Disclosure Threshold Discrimination Capability
Engineer A applied — though arguably incorrectly weighted — the allegation-vs-adjudication distinction in deciding not to disclose the pending ethics complaint to Client B, treating the unproven allegation as not compelling automatic disclosure.
Engineer A was subject to a pending ethics complaint by Client C alleging lack of competence while simultaneously rendering similar services to Client B
Engineer A's decision that it was not necessary to notify Client B of the pending complaint, relying on the unproven nature of the allegation
Engineer A Allegation-Adjudication Distinction Invocation in Non-Disclosure Decision
Engineer A invoked the allegation-adjudication distinction to justify non-disclosure to Client B, reasoning that the complaint was unproven. The Board found this reasoning partially valid but insufficient given the similarity of services and the faithful agent relationship.
Allegation Non-Equivalence to Adjudication Disclosure Calibration Obligation
Engineer A was obligated to recognize that the pending ethics complaint constituted an unproven allegation — not an adjudicated finding — and to calibrate any disclosure decision accordingly, neither treating the allegation as automatically requiring disclosure nor treating the allegation-adjudication distinction as a complete shield against disclosure when the allegation concerned services materially similar to those being performed for Client B.
Upon receipt of the state board notification regarding the pending complaint
Engineer A Allegation Non-Equivalence Disclosure Calibration Client B
Engineer A is subject to a pending ethics complaint by Client C alleging lack of competence for services similar to those being performed for Client B. The Board analyzed whether the allegation status of the complaint affected the disclosure obligation.
Engineer A was obligated to recognize that the pending ethics complaint filed by Client C constituted a mere allegation — not a finding of fact or conclusion of law — and therefore was not automatically required to disclose it to Client B, while retaining discretion to weigh all factors and take prudent action proportionate to the nature and seriousness of the charges.
During the period the ethics complaint was pending and unresolved
The Board is of the opinion that while an engineer clearly has an ethical obligation to act as a faithful agent and trustee for the benefit of a client, avoid deceptive acts, be objective and truthful, avoid conflicts, etc., such obligations would not compel an engineer to automatically disclose that a complaint had been filed against the engineer with the state engineering licensure board.
Engineer A Allegation vs Adjudication Distinction Application Pending Complaint
Engineer A had the capability to recognize that the pending ethics complaint filed by Client C constituted a mere allegation — not a finding of fact or conclusion of law — and to use this allegation-vs-adjudication distinction as a key factor in determining that automatic disclosure to Client B was not ethically compelled.
Engineer A's pending ethics complaint non-disclosure to Client B — BER applied allegation-vs-adjudication distinction to hold no automatic disclosure obligation
BER analysis holding that a pending complaint is a mere allegation that does not compel automatic disclosure, distinguishing it from an adjudicated finding
Engineer A Competence Self-Assessment Obligation Under Pending Complaint
Client C's allegation that Engineer A lacked competence for services similar to those being performed for Client B placed Engineer A's competence directly at issue. Engineer A's obligation to perform only within areas of competence required honest self-assessment in light of the pending complaint.
Engineer A was obligated to honestly assess whether the pending competence complaint raised legitimate questions about Engineer A's ability to competently perform the materially similar services being provided to Client B, and to take appropriate action — including disclosure, remediation, or referral — if that assessment revealed genuine competence concerns.
During the rendering of services to Client B on this project, the state board of professional engineers contacts Engineer A regarding an ethics complaint filed against Engineer A by Client C relating to services provided on a project for Client C that are similar to the services being performed for Client B.
Engineer A Competence Self-Assessment Under Pending Complaint
Pre-Acceptance Competence Self-Assessment Capability
Engineer A was obligated to honestly assess whether the pending competence complaint raised legitimate questions about Engineer A's ability to competently perform the current services for Client B — a self-assessment that bears on both the disclosure decision and the ongoing duty of competent service.
Engineer A was performing design services and CPM scheduling for Client B while subject to a pending complaint alleging lack of competence for similar prior services
Engineer A's continued rendering of design and CPM scheduling services to Client B while subject to a pending competence complaint for similar services
Engineer A is retained by Client B to perform design services and provide a Critical Path Method (CPM) schedule for a manufacturing facility.
Engineer A Departed Engineer Brochure Credential Misuse Correction Obligation
Engineer A received termination notice from Engineer B. Engineer B continued to list Engineer A in firm brochures both during the notice period and after actual termination. Engineer A shared responsibility for ensuring this misrepresentation was corrected.
Departed Engineer Firm Brochure Credential Misuse Correction Obligation
Upon receiving termination notice from Engineer B, Engineer A was obligated to take affirmative steps to ensure that Engineer B's firm brochures and marketing materials no longer listed Engineer A as a current key employee, including notifying Engineer B of the need to update materials and demanding correction if Engineer B failed to act.
Upon receipt of termination notice from Engineer B, and continuing until firm brochures were corrected
Engineer A Departed Engineer Firm Brochure Credential Misuse Correction Case 83-1
Case 83-1: Engineer A received termination notice and subsequently departed, but Engineer B continued to list Engineer A as a key employee in firm brochures. Engineer A shared responsibility for correcting this misrepresentation.
Upon receiving termination notice from Engineer B, Engineer A was obligated to take affirmative steps to ensure that Engineer B's firm brochures no longer listed Engineer A as a current key employee after actual departure, including notifying Engineer B of the need to update materials.
The case analysis of Cases 83-1 and 90-4 implicitly addresses the departed engineer's position: Engineer A (Case 83-1) and Engineer X (Case 90-4) are each implicitly obligated to ensure their former firms update promotional materials upon departure.
From the date of actual departure from Engineer B's firm
These include the obligations to be truthful in public statements, act as a faithful agent and trustee in dealings with clients, not falsify or misrepresent their professional qualifications, and avoid the use of statements containing a material misrepresentation of fact.
Engineer A Domain-Relevance Amplified Disclosure Duty Recognition
Domain-Relevance Amplified Disclosure Duty Recognition Capability
Engineer A was required to recognize that the domain-relevance of the pending complaint — specifically that it concerned services similar to those being performed for Client B — amplified the disclosure obligation beyond what would apply to an unrelated complaint, making disclosure to Client B more ethically compelling.
The pending complaint alleged lack of competence for services explicitly similar to those Engineer A was currently performing for Client B
The case facts establishing explicit similarity between the complained-of services and the current engagement, which the BER analysis treats as a factor amplifying the disclosure obligation
{'license': 'Professional Engineer (implied by state board jurisdiction)', 'specialty': 'Design services and CPM scheduling for manufacturing facilities', 'disclosure_decision': 'Chose not to notify current client of pending ethics complaint', 'complaint_status': 'Subject to pending state board ethics complaint'}
Engineer A is retained by Client B to perform design and CPM scheduling services for a manufacturing facility. While rendering those services, Engineer A receives notice from the state board of a pending ethics complaint filed by Client C alleging incompetence on similar services. Engineer A decides not to disclose the complaint to Client B, who later learns of it through a third party and expresses that Engineer A should have disclosed it proactively.
{'type': 'respondent_before', 'target': 'State Board of Professional Engineers'}
{'type': 'service_provider_to', 'target': 'Client B Manufacturing Facility Design Client'}
{'type': 'subject_of_complaint_by', 'target': 'Client C Prior Client Ethics Complainant'}
Ethics Complaint Non-Disclosing Engineer
Engineer A should have brought the matter to Client B's attention
Engineer A Faithful Agent Obligation Toward Client B Complaint Context
The Board acknowledged Engineer A's faithful agent obligation to Client B as a relevant ethical duty but held that it did not override the allegation-adjudication distinction in the disclosure analysis.
Engineer A's faithful agent and trustee obligation to Client B required transparency about material professional circumstances, but this obligation did not automatically compel disclosure of the pending ethics complaint because the complaint was an unproven allegation rather than an adjudicated finding.
Engineer A Faithful Agent Transparency Obligation Toward Client B
Engineer A's role as faithful agent to Client B required transparency about the pending ethics complaint. Client B's subsequent upset upon learning through a third party confirmed that the information was material to the client relationship.
Engineer A, as faithful agent and trustee of Client B, was obligated to be transparent about material professional circumstances — specifically the pending competence complaint for similar services — that could affect Client B's ability to make informed decisions about the engagement.
Throughout the duration of the engagement with Client B, from the time of the state board notification
Client B learns of the ethics complaint filed against Engineer A and tells Engineer A that he is upset by the allegations and that Engineer A should have brought the matter to Client B's attention.
Engineer A Faithful Agent Transparency Toward Client B
Faithful Agent and Trustee Confidentiality Obligation Source Recognition Capability
Engineer A was required to recognize that the faithful agent and trustee obligation toward Client B encompassed a duty of transparency about material professional circumstances — including the pending competence complaint — and that this obligation was the source of the disclosure duty independent of any explicit contractual requirement.
Engineer A served as Client B's retained engineer for design and CPM scheduling, creating a faithful agent relationship that carried transparency obligations
Client B's expressed expectation that Engineer A 'should have brought the matter to Client B's attention,' reflecting the client's understanding of the faithful agent transparency norm
Engineer A Licensee Subject to Professional Conduct Complaint
{'complaint_allegation': 'Lacked competence to perform services similar to those currently being rendered', 'complainant': 'Client C', 'regulatory_body': 'State board of professional engineers', 'concurrent_engagement': 'Actively rendering similar services to Client B during complaint period'}
Engineer A is the named subject of a formal ethics complaint filed by Client C with the state board of professional engineers, alleging lack of competence to perform the services in question. This regulatory respondent status runs concurrently with Engineer A's active service delivery to Client B.
{'type': 'complained_against_by', 'target': 'Client C Prior Client Ethics Complainant'}
{'type': 'concurrent_provider_to', 'target': 'Client B Manufacturing Facility Design Client'}
{'type': 'respondent_to', 'target': 'State Board of Professional Engineers'}
Licensee Subject to Professional Conduct Complaint
the state board of professional engineers contacts Engineer A regarding an ethics complaint filed against Engineer A by Client C
Engineer A Pending Allegation Prudential Disclosure Weighing Client B
Engineer A failed to proactively disclose the pending complaint to Client B, who subsequently learned of it through a third party, damaging the professional relationship. The Board recommended — without imposing a mandatory obligation — that Engineer A should have weighed providing limited background information.
Pending Allegation Prudential Disclosure Weighing Obligation
Engineer A was obligated to actively weigh all relevant factors — including the nature and seriousness of the competence charges, the potential impact on Client B, and the risk of Client B learning through third parties — and to consider providing Client B with limited, dispassionate background information about the pending complaint, even though automatic disclosure was not ethically required.
Upon becoming aware of the pending complaint and throughout the engagement with Client B
On this last point, while the Board is not suggesting that Engineer A had an ethical obligation to report to Client B the ethics complaint filed against him by Client C, the Board believes Engineer A should have weighed providing Client B with some limited background information in a dispassionate and nonprejudicial matter for the benefit of all concerned.
Engineer A Pending Competence Complaint Disclosure Obligation to Client B
Engineer A is retained by Client B for design and CPM scheduling services on a manufacturing facility. While performing those services, Engineer A is subject to a pending ethics complaint filed by Client C alleging lack of competence for similar services. Client B later learns of the complaint through a third party.
Engineer A faced a disclosure obligation analysis regarding the pending ethics complaint filed by Client C: the Board held that while the faithful agent relationship and the materiality of the complaint to Client B's decision-making were relevant, the allegation status of the complaint meant that automatic disclosure was not ethically compelled, though prudential disclosure was recommended.
Throughout the period the ethics complaint was pending while Engineer A was engaged by Client B
Engineer A Pending Competence Complaint Materiality-to-Current-Services Assessment
Pending Competence Complaint Materiality-to-Current-Services Assessment Capability
Engineer A had the capability to assess whether the subject matter of the pending ethics complaint filed by Client C — alleging lack of competence in services similar to those being performed for Client B — was materially similar to the current engagement with Client B, and to use that similarity assessment as a factor in determining whether disclosure was warranted.
Engineer A's pending competence complaint from Client C while performing similar services for Client B
BER analysis noting that the nature and seriousness of the competence charges, including their similarity to current services, should inform Engineer A's disclosure weighing
Engineer A Pending Competence Complaint Non-Disclosure to Client B
Engineer A was retained by Client B for design and CPM scheduling services on a manufacturing facility. While performing those services, Engineer A was contacted by the state board regarding a complaint by Client C alleging incompetence in similar services. Engineer A chose not to disclose this to Client B. Client B later learned through a third party and expressed that Engineer A should have disclosed.
Engineer A was obligated to weigh whether to disclose to Client B the existence of the pending ethics complaint filed by Client C alleging incompetence in services materially similar to those being performed for Client B, and given the similarity of services and the faithful agent relationship, prudential disclosure to Client B was warranted even though the complaint was an unproven allegation.
Upon receipt of notification from the state board of professional engineers regarding the pending ethics complaint, and throughout the duration of the engagement with Client B
Engineer A Pending Complaint Faithful Agent Proactive Disclosure Weighing
Pending Ethics Complaint Faithful Agent Proactive Disclosure Weighing Capability
Engineer A was required to weigh the faithful agent and trustee obligation toward Client B against the unproven nature of the pending complaint, and to reach a principled conclusion about whether proactive disclosure was ethically required — a weighing Engineer A performed but resolved in favor of non-disclosure.
Engineer A was simultaneously subject to a pending competence complaint and rendering similar services to Client B, creating a faithful agent transparency tension
Engineer A's decision not to notify Client B, and Client B's subsequent upset upon learning of the complaint through a third party
Engineer A Pending Complaint Limited Background Information Provision Client B
Engineer A did not proactively inform Client B of the pending complaint. Client B later learned of it through a third party. The Board recommended this course of action as prudentially advisable for the benefit of all concerned.
Pending Complaint Limited Background Information Provision Obligation
Engineer A should have considered providing Client B with limited, dispassionate, and non-prejudicial background information about the pending ethics complaint so that Client B could respond to third-party inquiries and so that Engineer A could demonstrate professional transparency and good faith, even though this was not a mandatory ethical obligation.
By doing so, Engineer A would be providing Client B with early notice of the pending matter so that Client B will be able to respond to comments or questions by third parties and would be demonstrating to Client B that Engineer A is acting in a professional and responsible manner and has nothing to hide or fear concerning the complaint.
Before Client B learned of the complaint through third parties
the Board believes Engineer A should have weighed providing Client B with some limited background information in a dispassionate and nonprejudicial matter for the benefit of all concerned.
Engineer A Pending Complaint Limited Background Information Provision Toward Client B
Pending Complaint Limited Background Information Provision Capability
Engineer A had the capability — and the BER indicated should have exercised it — to provide Client B with limited, dispassionate, and non-prejudicial background information about the pending ethics complaint filed by Client C, enabling Client B to respond to third-party inquiries and demonstrating professional transparency.
Engineer A's decision not to disclose the pending ethics complaint to Client B — BER found no strict obligation but recommended weighing voluntary background information provision
BER recommendation that Engineer A should have weighed providing Client B with appropriate background information in a dispassionate and non-prejudicial manner
Engineer A Pending Complaint Materiality-to-Current-Services Assessment
Engineer A was required to assess whether the competence complaint filed by Client C — relating to services similar to those being performed for Client B — was materially similar enough to the current engagement to amplify the disclosure obligation toward Client B.
The complained-of services for Client C were explicitly similar to the current services for Client B, making the similarity-of-services materiality assessment central to the disclosure decision
The case facts establishing that Client C's complaint concerned services 'similar to the services being performed for Client B,' creating a direct materiality nexus that Engineer A failed to adequately weigh
Engineer A Pending Ethics Complaint Faithful Agent Disclosure Weighing Toward Client B
Engineer A had the capability to weigh the faithful agent and trustee obligation toward Client B against the allegation-vs-adjudication distinction, and to reach a principled conclusion about whether proactive disclosure of the pending ethics complaint was ethically required, prudentially advisable, or permissibly withheld.
Engineer A's decision regarding disclosure of pending Client C ethics complaint to current Client B
BER analysis of Engineer A's disclosure weighing obligation, concluding that while automatic disclosure was not required, Engineer A should have weighed providing limited background information
the Board is of the opinion that while an engineer clearly has an ethical obligation to act as a faithful agent and trustee for the benefit of a client, avoid deceptive acts, be objective and truthful, avoid conflicts, etc., such obligations would not compel an engineer to automatically disclose that a complaint had been filed against the engineer with the state engineering licensure board.
Instead, Engineer A should weigh all factors and, depending upon the nature and seriousness of the charges, take prudent action
Engineer A Pending Ethics Complaint While Serving Client B
From the filing of the ethics complaint by Client C through the period of Engineer A's active engagement with Client B
the Board is of the opinion that while an engineer clearly has an ethical obligation to act as a faithful agent and trustee for the benefit of a client, avoid deceptive acts, be objective and truthful, avoid conflicts, etc., such obligations would not compel an engineer to automatically disclose that a complaint had been filed against the engineer with the state engineering licensure board
Pending Ethics Complaint Non-Disclosure State
Engineer A subject to a pending ethics complaint filed by Client C while actively serving Client B
Resolution of the complaint or termination of the Client B engagement
Client C filing an ethics complaint against Engineer A with the state engineering licensure board
Engineer A Post-Departure Firm Brochure Correction Initiation
Post-Departure Firm Brochure Personnel Listing Correction Initiation Capability
Engineer A was required to take affirmative steps upon receiving termination notice to ensure that Engineer B's firm brochures and marketing materials were corrected to remove Engineer A's name and credentials.
Upon receiving termination notice from Engineer B, Engineer A had an affirmative duty to ensure the firm's marketing materials were corrected to reflect Engineer A's departure
Engineer A's obligation to affirmatively act to correct Engineer B's firm brochures upon receiving termination notice, as established in the case analysis
Engineer A was obligated to take affirmative steps to ensure that Engineer B's firm brochures and marketing materials were corrected
Received termination notice from Engineer B, continued working during notice period, and was subsequently listed as a key employee in firm brochures after actual termination
Engineer A Precedent Triangulation for Personal Disclosure Obligation
Precedent Triangulation for Personal Disclosure Obligation Calibration Capability
Engineer A was required to synthesize relevant BER precedents — including cases involving pending complaints, personal misconduct, and the allegation-vs-adjudication distinction — to correctly calibrate the disclosure obligation applicable to the pending competence complaint situation.
Engineer A faced a novel disclosure decision requiring synthesis of multiple precedents to determine the applicable standard
The ethical analysis required to determine whether the pending complaint triggered a disclosure obligation to Client B, drawing on precedents distinguishing allegations from adjudicated findings
Engineer A Prudential Disclosure Weighing Toward Client B
Engineer A failed to engage in adequate prudential weighing, defaulting to non-disclosure without fully accounting for the material similarity of services and the relational consequences of Client B learning through a third party.
Engineer A was obligated to actively weigh all relevant factors — including the nature of the competence allegation, its similarity to services being performed for Client B, the risk of Client B learning through third parties, and the faithful agent relationship — and to take prudent action proportionate to those factors, which in this case warranted proactive disclosure to Client B.
Upon receipt of the state board notification and throughout the engagement with Client B
Engineer A Prudential Foresight of Relational Consequence of Non-Disclosure
Prudential Pre-Disclosure Relational Consequence Foresight Capability
Engineer A lacked or failed to apply the prudential foresight capability to anticipate that Client B's discovery of the pending complaint through a third party — rather than through Engineer A's own disclosure — would damage the professional relationship and undermine Client B's trust, a consequence that proactive disclosure could have mitigated.
Engineer A chose not to disclose the pending complaint; Client B subsequently learned of it through a third party and expressed upset at not having been informed directly
Client B's upset upon learning of the complaint through 'another party' rather than from Engineer A directly, demonstrating the relational harm of non-disclosure
Later, through another party, Client B learns of the ethics complaint filed against Engineer A and tells Engineer A that he is upset by the allegations and that Engineer A should have brought the matter to Client B's attention.
{'license': 'Professional Engineer', 'firm_role': 'Key employee', 'departure_status': 'Terminated — first given notice, then actually terminated'}
Received termination notice from Engineer B, continued working during notice period, and was subsequently listed as a key employee in firm brochures both during and after the termination period without accurate disclosure of departure status.
{'type': 'credential_misused_by', 'target': 'Engineer B Credential-Misrepresenting Firm Principal'}
{'type': 'employed_by', 'target': 'Engineer B Credential-Misrepresenting Firm Principal'}
Terminated Staff Engineer Subject to Credential Misuse
Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work
Engineer A, noted as a key employee, would be available in the firm for consultation on future projects
Engineer B distributed a previously printed brochure listing Engineer A as one of Engineer B's key employees
Engineer A Valence-Neutral Misleading Omission Non-Disclosure Pending Complaint
Engineer A did not disclose to Client B a pending ethics complaint filed by Client C alleging lack of competence for similar services. The Board analyzed whether the negative valence of the complaint information changed the disclosure analysis.
Valence-Neutral Misleading Omission Non-Disclosure Prohibition Obligation
Engineer A was obligated to apply the same honesty standard to the pending ethics complaint as would apply to any other material information, recognizing that the valence of the information — whether it reflects positively or negatively — does not alter the operative question of whether its omission misleads or deceives Client B.
Throughout the period of active engagement with Client B while the complaint was pending
The facts in the present case are somewhat different than those involved in BER Case Nos. 83-1 and 90-4 , because the earlier cases involved efforts by an engineering firm to enhance the firm's credentials by implying that the firm had a higher level of expertise than it actually had. In contrast, the present case involves a situation that could reflect negatively on Engineer A and his firm.
Engineer A Voluntary Background Disclosure Opportunity to Client B
From the point Engineer A weighs the disclosure decision through the time Client B might encounter third-party inquiries
Pending Complaint Voluntary Background Disclosure Opportunity State
Engineer A's discretionary opportunity to provide Client B with limited background information about the pending complaint, not as a mandatory obligation but as a prudent professional act
Engineer A's decision to provide or withhold background information, or resolution of the complaint
By doing so, Engineer A would be providing Client B with early notice of the pending matter so that Client B will be able to respond to comments or questions by third parties
demonstrating to Client B that Engineer A is acting in a professional and responsible manner and has nothing to hide or fear concerning the complaint
Board's determination that while disclosure is not mandatory, voluntary limited disclosure would be prudent
Engineer A preparing plans, specifications, and CPM schedule during ethics complaint pending with state board
Engineer A retained by Client B / rendering of design services overlaps state board contact regarding ethics complaint from Client C
Engineer A's non-disclosure decision before Client B's expression of displeasure
Engineer A's receipt of ethics complaint notice before Client B learning of the complaint through a third party
Engineer B Brochure Reader Reasonable Expectation Modeling
Brochure Reader Reasonable Expectation Modeling Capability
Engineer B was required to model the reasonable expectations of prospective clients reading the firm brochure — specifically that named key employees are currently employed by the firm — and to use that modeled expectation to recognize that continued listing of Engineer A after departure was misleading.
Prospective clients reading Engineer B's firm brochure would reasonably assume that Engineer A, listed as a key employee, was currently available to work on their projects
The case establishing that prospective clients reasonably relied on firm brochures listing personnel qualifications, assuming named individuals were currently employed
Prospective clients who read and relied upon engineering firm brochures listing personnel qualifications, reasonably assuming that named individuals were currently employed
{'license': 'Professional Engineer', 'firm_role': 'Firm owner/principal', 'violation_finding': "Unethical to distribute brochure after Engineer A's actual termination"}
Distributed firm brochures listing Engineer A as a key employee both during the notice period and after Engineer A's actual termination, constituting a misrepresentation of pertinent facts with intent to enhance firm qualifications in violation of NSPE Code Section II.5.a.
{'type': 'employer_of', 'target': 'Engineer A Terminated Staff Engineer'}
{'type': 'solicits', 'target': 'Prospective Clients Relying on Firm Brochure'}
Credential-Misrepresenting Firm Principal Engineer
Engineer B distributed the brochure after Engineer A had left the firm
continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A
Engineer B Distributes Brochure Post-Termination
Engineer B Distributes Brochure Post-Termination → Misrepresentation of Firm Personnel
Engineer B Distributes Brochure Pre-Termination
Engineer B Firm Brochure Post-Departure Personnel Listing Correction Obligation
Engineer B distributed firm brochures listing Engineer A as a key employee both during Engineer A's notice period and after Engineer A's actual termination, misleading prospective clients about the firm's current personnel qualifications.
Firm Principal Post-Departure Personnel Listing Correction Obligation
Engineer B was obligated to promptly remove Engineer A from all firm brochures and marketing materials upon receiving notice of Engineer A's termination or departure, and to refrain from distributing any materials listing Engineer A as a current key employee after Engineer A's departure.
Upon issuance of termination notice to Engineer A, and no later than Engineer A's actual departure date
Engineer B Firm Brochure Post-Departure Personnel Listing Prompt Removal
Firm Principal Post-Departure Personnel Listing Prompt Removal Capability
Engineer B was required to promptly remove Engineer A from all firm brochures and marketing materials upon receiving notice of Engineer A's termination, and failed to do so by continuing to distribute brochures listing Engineer A as a key employee.
Engineer B received termination notice from Engineer A but continued to list Engineer A in firm marketing materials, constituting deceptive advertising
Engineer B's continued distribution of firm brochures listing Engineer A as a key employee both during the notice period and after Engineer A's actual termination
Engineer B was obligated to promptly remove Engineer A from all firm brochures and marketing materials upon receiving notice of Engineer A's termination
Distributed firm brochures listing Engineer A as a key employee both during the notice period and after Engineer A's actual termination
Engineer B Intent-and-Purpose Evidence Assessment BER 83-1
Brochure Distribution Intent-and-Purpose Evidence Assessment Capability
The BER demonstrated capability to assess Engineer B's intent-and-purpose in distributing the misleading brochure, using circumstantial evidence — Engineer B's actual knowledge of the termination (as the terminating party), the timing of distribution during and after the notice period, and the brochure's emphasis on Engineer A as a key employee — to conclude that the intent-and-purpose element of the II.5.a test was satisfied.
BER Case 83-1 — assessment of Engineer B's intent in distributing brochures listing Engineer A as key employee after termination
Circumstantial evidence analysis establishing Engineer B's intent to enhance firm qualifications through continued post-termination brochure distribution in BER Case 83-1
a second point we considered was whether it was the 'intent and purpose' of Engineer B to 'enhance the firm's qualifications and work' by including Engineer A's name in the promotional brochure after Engineer A left the firm.
Engineer B was well aware of the impending termination of Engineer A, as Engineer B was the very person who terminated Engineer A.
The Board concluded that this would be a clear misrepresentation of a pertinent fact with the intent to enhance the firm's qualifications
Engineer B Key Employee Brochure Listing Prospective Client Reliance Non-Misleading Case 83-1
Case 83-1: Engineer B distributed brochures listing Engineer A as a key employee both during the notice period and after actual termination, misleading prospective clients about Engineer A's availability for future projects.
Key Employee Brochure Listing Prospective Client Reliance Non-Misleading Obligation
Engineer B was obligated to ensure that the listing of Engineer A as a 'key employee' in firm brochures accurately reflected Engineer A's current employment status, recognizing that prospective clients materially rely on such listings when selecting engineering firms and may have prior familiarity with the named individual.
We said that the names of the firm's members are often quite significant to the client selecting the firm. The client may be familiar with an individual member of the firm as represented in the brochure.
From the date of termination notice through and after Engineer A's actual departure
The Board noted that this could easily mislead potential clients into believing that Engineer A, noted as a key employee, would be available in the firm for consultation on future projects.
Engineer B Marketing Material Accuracy and Currency Maintenance
Marketing Material Accuracy and Currency Maintenance Capability
Engineer B was required to maintain accurate and current firm marketing materials that truthfully represented the firm's actual personnel, and failed to exercise this capability by continuing to list Engineer A after departure.
Engineer B distributed firm brochures listing Engineer A as a key employee after Engineer A's termination, misleading prospective clients about the firm's staffing
Engineer B's failure to update firm brochures after Engineer A's termination, resulting in deceptive advertising to prospective clients
Distributed firm brochures listing Engineer A as a key employee both during the notice period and after Engineer A's actual termination, constituting deceptive advertising
Engineer B Notice-Period Brochure Distribution Disclosure Obligation BER 83-1
Engineer B had the capability to maintain accurate and current firm brochures during the notice period by apprising prospective clients of Engineer A's pending termination during negotiations — a capability the BER found was exercised permissibly during the notice period but violated after actual termination.
BER Case 83-1 — Engineer B's brochure distribution during Engineer A's notice period with and without disclosure of pending termination
BER ruling that distribution during notice period was permissible if Engineer B apprised prospective clients of pending termination, but impermissible after actual departure
Engineer B Pertinent Fact Dual-Element Test Violation Case 83-1 Post-Termination
Case 83-1: Engineer B terminated Engineer A for lack of work, then continued distributing brochures listing Engineer A as a key employee both during the notice period and after actual termination.
Pertinent Fact Dual-Element Misrepresentation Test Compliance Obligation
Engineer B was obligated to refrain from distributing brochures listing Engineer A as a key employee after Engineer A's actual termination, as both elements of the pertinent-fact misrepresentation test were satisfied: Engineer A's name was a pertinent fact material to client selection, and Engineer B's distribution was made with intent to enhance the firm's qualifications.
From the date of Engineer A's actual termination onward
The Board concluded that this would be a clear misrepresentation of a pertinent fact with the intent to enhance the firm's qualifications, and, as such, constituted a violation of the NSPE Code.
Engineer B Post-Actual-Departure Brochure Listing Prohibition Case 83-1
Case 83-1: Engineer B continued to use the previously printed brochure with Engineer A's name well after Engineer A's actual termination.
Post-Actual-Departure Brochure Personnel Listing Prohibition Obligation
Engineer B was absolutely obligated to cease distributing brochures listing Engineer A as a key employee after Engineer A's actual termination and departure from the firm.
Engineer B Post-Departure Firm Brochure Personnel Listing Correction Initiation BER 83-1
Both Engineer A (as the departing engineer) and Engineer B (as the firm principal) had the capability to initiate prompt correction of firm brochures to remove Engineer A's listing as a key employee upon the termination notice and actual departure — a capability that Engineer B failed to exercise after Engineer A's actual termination.
BER Case 83-1 — Engineer B's failure to update brochures after Engineer A's actual termination
BER ruling that Engineer B's continued distribution of brochures listing Engineer A after actual termination was unethical, implying the obligation and capability to correct the materials
Engineer A (as departing engineer) and Engineer B (as firm principal)
Engineer B Post-Termination Brochure Distribution (Case 83-1)
From the point Engineer A was given termination notice through the period after Engineer A's actual departure from the firm
Prospective clients of Engineer B's firm
Post-Termination Brochure Continued Use State
Engineer B's continued use of promotional brochure listing Engineer A as a key employee after termination
Not described as terminated in the text; the ethical violation is the continuation itself
it was unethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination
Engineer B's decision to continue distributing the previously printed brochure after notifying Engineer A of termination
Engineer B Post-Termination Notice Brochure Personnel Disclosure Case 83-1 Notice Period
Case 83-1: Engineer B distributed previously printed brochures listing Engineer A as a key employee during the notice period after termination notice was given.
Post-Termination Notice Brochure Personnel Disclosure Obligation
During the period after Engineer A received termination notice but before actual departure, Engineer B was obligated to apprise prospective clients during negotiations of Engineer A's pending termination when distributing brochures listing Engineer A as a key employee.
During the notice period between termination notice and Engineer A's actual departure
Engineer B distributed the brochure while Engineer A was still employed but had been given a notice of termination. The Board noted that this could easily mislead potential clients into believing that Engineer A, noted as a key employee, would be available in the firm for consultation on future projects.
Engineer B Pre-Termination Brochure Distribution with Pending Notice (Case 83-1)
From issuance of termination notice to Engineer A's actual departure
Engineer B distributed the brochure while Engineer A was still employed but had been given a notice of termination
Engineer B's distribution of brochure listing Engineer A as key employee during the notice period before actual termination
Engineer A's actual termination from the firm
The Board ruled that it was not unethical for Engineer B to distribute a previously printed brochure listing Engineer A as a key employee, providing Engineer B apprised the prospective client, during negotiation, of Engineer A's pending termination
Engineer B issuing termination notice to Engineer A while continuing to distribute brochure
Engineer B Truthful Non-Deceptive Advertising Brochure Distribution Case 83-1
Case 83-1: Engineer B's continued distribution of brochures listing Engineer A as a key employee after actual termination violated the truthful and non-deceptive advertising obligation under NSPE Code Sections II.3.a, II.4.a, II.5.a, and III.3.a.
Truthful and Non-Deceptive Advertising Obligation
Engineer B was obligated to ensure that all firm promotional brochures were truthful and non-deceptive, including by not distributing materials listing Engineer A as a current key employee after Engineer A's actual termination.
The obligation of the engineer to be honest and truthful and to avoid acts that might be viewed as misleading and deceptive is clearly stated in various sections of the NSPE Code of Ethics (See NSPE Code Sections II.3.a., II.4.a, II.5.a. and III.3.a.).
Engineer B Truthful Non-Deceptive Advertising Obligation Regarding Personnel
Engineer B's continued distribution of brochures listing Engineer A as a key employee after departure misled prospective clients about the firm's personnel composition and qualifications.
Engineer B was obligated to ensure that all firm brochures and marketing materials accurately represented the firm's current personnel, and to refrain from distributing materials that listed Engineer A as a key employee after Engineer A's departure, as such distribution constituted deceptive advertising about the firm's qualifications.
Ongoing; specifically triggered upon Engineer A's departure from the firm
Engineer X Departed Engineer Brochure Credential Misuse Correction Obligation Case 90-4
Engineer X gave two weeks notice of departure from Firm Y to move to another firm. Engineer Z continued to distribute brochures listing Engineer X as a current employee after departure. Engineer X shared responsibility for demanding correction of this misrepresentation.
Upon giving two weeks notice of departure from Firm Y, Engineer X was obligated to take affirmative steps to ensure that Firm Y's brochures and marketing materials no longer listed Engineer X as a current employee, including notifying Engineer Z of the need to update materials.
Upon giving notice of departure from Firm Y, and continuing until firm brochures were corrected
Engineer X Departed Engineer Firm Brochure Credential Misuse Correction Case 90-4
Case 90-4: Engineer X gave two weeks notice of departure from Firm Y, after which Engineer Z continued to distribute brochures identifying Engineer X as an employee. The Board found Engineer Z's conduct not unethical under the circumstances, but Engineer X retained a shared responsibility to ensure correction.
Upon giving two weeks notice of departure from Firm Y, Engineer X was obligated to take affirmative steps to ensure that Firm Y's brochures and firm resume no longer listed Engineer X as a current employee after actual departure.
Engineer X, an associate with the firm, gave two weeks notice of her intent to move to another firm. Thereafter, Engineer Z, a principal in Firm Y, continued to distribute a brochure identifying Engineer X as an employee of the firm and list Engineer X on the firm resume.
From the date of actual departure from Firm Y
Engineer X Post-Departure Firm Brochure Correction Initiation Case 90-4
Engineer X was required to take affirmative steps upon giving two weeks notice of departure to ensure that Firm Y's brochures and marketing materials were corrected to remove Engineer X's name and credentials.
Upon giving two weeks notice of departure from Firm Y, Engineer X had an affirmative duty to ensure the firm's marketing materials were corrected to reflect Engineer X's departure
Engineer X's obligation to affirmatively act to correct Firm Y's marketing materials upon giving notice of departure, as established in Case 90-4
Upon giving two weeks notice of departure from Firm Y, Engineer X was obligated to take affirmative steps to ensure that Firm Y's brochures and marketing materials were corrected
{'license': 'Professional Engineer', 'firm_role': 'Associate with hydrology expertise', 'departure_status': 'Gave two weeks notice; departure pending'}
One of few engineers in Firm Y with hydrology expertise; gave two weeks notice of intent to move to another firm, after which Engineer Z continued to list her in firm brochures and resumes.
{'type': 'credential_misused_by', 'target': 'Engineer Z Credential-Misrepresenting Firm Principal Case 90-4'}
{'type': 'employed_by', 'target': 'Engineer Z Credential-Misrepresenting Firm Principal Case 90-4'}
Engineer X is one of the few engineers in Firm Y with expertise in hydrology
Engineer X, an associate with the firm, gave two weeks notice of her intent to move to another firm
Engineer X's two-week notice (Case 90-4) before Engineer Z continuing to distribute brochure listing Engineer X (Case 90-4)
Engineer Z Continues Listing Departed Engineer X
Engineer Z Continues Listing Departed Engineer X → Misrepresentation of Firm Personnel
{'license': 'Professional Engineer', 'firm_role': 'Principal of medium-sized consulting firm', 'violation_finding': 'Not unethical under the specific circumstances'}
Continued to distribute brochures identifying Engineer X as an employee of Firm Y after Engineer X gave two weeks notice of departure. Board found this not unethical given that Engineer X was not highlighted as a 'key employee' and the firm's hydrology work was not a significant percentage of its practice.
{'type': 'employer_of', 'target': 'Engineer X Terminated Staff Engineer Case 90-4'}
Engineer Z, a principal in Firm Y, continued to distribute a brochure identifying Engineer X as an employee of the firm and list Engineer X on the firm resume
the Board concluded that it was not unethical for Engineer Z to continue to represent Engineer X as an employee of Firm Y
Engineer Z Firm Brochure Post-Departure Personnel Listing Correction Obligation Case 90-4
Engineer Z continued to distribute brochures identifying Engineer X as an employee of Firm Y after Engineer X gave two weeks notice of departure, misleading prospective clients about the firm's hydrology expertise and personnel.
Engineer Z was obligated to promptly remove Engineer X from all firm brochures and marketing materials upon receiving Engineer X's two-week notice of departure, and to refrain from distributing any materials listing Engineer X as a current employee of Firm Y after Engineer X's departure.
Upon receipt of Engineer X's two-week departure notice, and no later than Engineer X's actual departure date
Engineer Z Firm Brochure Post-Departure Personnel Listing Prompt Removal Case 90-4
Engineer Z was required to promptly remove Engineer X from all firm brochures and marketing materials upon receiving Engineer X's two-week notice of departure, and failed to do so by continuing to distribute brochures identifying Engineer X as an employee of Firm Y.
Engineer Z received two weeks notice from Engineer X but continued to list Engineer X in firm marketing materials, constituting deceptive advertising to prospective clients
Engineer Z's continued distribution of brochures identifying Engineer X as an employee of Firm Y after Engineer X gave two weeks notice of departure
Engineer Z was obligated to promptly remove Engineer X from all firm brochures and marketing materials upon receiving Engineer X's two-week notice
Continued to distribute brochures identifying Engineer X as an employee of Firm Y after Engineer X gave two weeks notice of departure
Engineer Z Firm Principal Post-Departure Personnel Listing Correction BER 90-4
Engineer Z, as principal of Firm Y, had the capability to assess whether continued listing of Engineer X after departure notice was permissible under the totality of circumstances — and the BER found it was permissible given Engineer X's non-key-employee status and the non-materiality of the departure to the firm's overall qualification profile.
BER Case 90-4 — Engineer Z's continued distribution of brochures listing Engineer X after two-week departure notice
BER Case 90-4 analysis finding Engineer Z's continued listing of Engineer X permissible given the non-key-employee factual context
Engineer Z Non-Key-Employee Departed Engineer Brochure Listing Case 90-4
Case 90-4: Engineer Z continued to distribute brochures identifying Engineer X as an employee after Engineer X gave two weeks notice of departure. Engineer X had hydrology expertise but hydrology was not a significant portion of the firm's work.
Non-Key-Employee Departed Engineer Brochure Listing Contextual Permissibility Obligation
Engineer Z was obligated to assess whether Engineer X's departure materially altered Firm Y's overall qualification profile; because hydrology was not a significant percentage of the firm's work, continued listing of Engineer X did not constitute an overt misrepresentation of a pertinent fact under the circumstances.
During the two-week notice period after Engineer X gave notice of departure
Engineer Z Post-Notice Brochure Distribution (Case 90-4)
From Engineer X's two-weeks notice through the period of continued brochure use
Engineer Z's continued distribution of brochure listing Engineer X as an employee after Engineer X gave two weeks notice
Not described; Board found this not unethical given the circumstances
the Board concluded that it was not unethical for Engineer Z to continue to represent Engineer X as an employee of Firm Y under the circumstances described
Engineer X giving notice of intent to move to another firm
Engineer A in deciding not to notify Client B; Client B in asserting Engineer A should have disclosed
Governs whether Engineer A has an ethical obligation to proactively disclose to Client B the pending ethics complaint filed by Client C, particularly given that the complaint concerns competence in services similar to those being performed for Client B
Ethics Complaint Disclosure Standard - Client Notification
NSPE Board of Ethical Review (derived from NSPE Code obligations)
NSPE Board of Ethical Review in analyzing Engineer A's disclosure obligations to Client B
Normative standard applied to determine whether Engineer A had an ethical obligation to disclose a pending ethics complaint filed by Client C to current Client B; the Board concludes no automatic obligation exists but prudent background communication may be advisable
Faithful Agent Disclosure Scope Limitation — Engineer A Pending Complaint
Engineer A was retained as faithful agent by Client B; the pending complaint by Client C created a question about whether faithful agent duties required proactive disclosure
Faithful Agent Disclosure Scope Limitation Constraint
Engineer A's duty as faithful agent and trustee to Client B did not automatically extend to compelled disclosure of the pending, unadjudicated ethics complaint filed by Client C, constraining the over-extension of the faithful agent duty to encompass personal professional allegations that had not been adjudicated and whose materiality to the current engagement required case-specific assessment rather than automatic disclosure.
NSPE Code of Ethics Section III.3.a; BER Case 97-11
Throughout the active engagement with Client B
Faithful Agent Obligation Invoked by Engineer A Toward Client B
Design and CPM scheduling engagement for manufacturing facility
Engineer A's role as faithful agent and trustee of Client B required transparency about material professional circumstances — specifically the pending competence complaint — that could affect Client B's confidence in and decision to continue retaining Engineer A.
The faithful agent duty encompasses not merely technical performance but also transparency about professional circumstances that materially affect the client's ability to evaluate the engagement; a pending competence complaint for similar services is such a circumstance.
Faithful agent duty reinforces the disclosure obligation; the engineer's self-interest in avoiding disclosure does not override the client's right to material information about the engineer's professional standing.
Faithful Agent Obligation Invoked in Complaint Non-Disclosure Analysis
Engineer A's ongoing service relationship with Client B during pending ethics complaint
Personal Privacy Right in Professional Self-Disclosure
The Board acknowledges that Engineer A's faithful agent and trustee obligation to Client B is a relevant ethical duty but holds that this obligation does not automatically compel disclosure of a pending ethics complaint — because the complaint is a mere allegation, not a finding — while still recommending that Engineer A consider providing background information in service of the faithful agent relationship.
The faithful agent obligation requires transparency about material professional circumstances, but its scope is calibrated by the evidentiary status of the information: unproven allegations do not automatically become material facts that the faithful agent must disclose, though the faithful agent relationship may counsel prudential disclosure.
The Board holds that faithful agent obligations do not override the engineer's right to protect against disclosure of potentially false, baseless, or maliciously motivated allegations, but that the faithful agent relationship is best served by prudential voluntary disclosure.
Firm-Level Title Audit and Corrective Disclosure Obligation Invoked by Engineer B Failure to Update Brochures
Firm brochures listing departed engineers as current employees
Engineer B's failure to audit and update firm brochures upon Engineer A's departure — and Engineer Z's parallel failure regarding Engineer X — constituted a failure to take affirmative corrective action to prevent misleading prospective clients about current firm personnel.
Upon an engineer's departure or notice of departure, the firm bears an immediate obligation to audit and correct all public-facing materials that list that engineer as current personnel; continued distribution without correction is an affirmative ethical violation.
Firm-Level Title Audit and Corrective Disclosure Obligation
Engineer Z continued to distribute brochures identifying Engineer X as an employee of Firm Y after Engineer X gave two weeks notice of intent to move to another firm.
The firm's corrective disclosure obligation is not contingent on the departed engineer's consent or cooperation; the obligation arises from the firm's own duty to prospective clients.
Engineer B distributed firm brochures listing Engineer A as a key employee both during the notice period and after Engineer A's actual termination
Engineer Z continued to distribute brochures identifying Engineer X as an employee of Firm Y after Engineer X gave two weeks notice of intent to move to another firm
Honesty and Non-Deception Obligation Invoked as Baseline Framework
Non-disclosure of pending ethics complaint to current client
The Board grounds its entire analysis in the NSPE Code's multiple honesty and non-deception provisions — truthfulness in public statements, faithful agent and trustee obligations, prohibition on falsifying professional qualifications, and prohibition on material misrepresentations — establishing these as the baseline from which both the brochure misrepresentation analysis and the complaint non-disclosure analysis proceed.
The honesty obligation is multi-dimensional in this case: it applies to affirmative misrepresentations in promotional materials (brochure cases) and to omissions that could mislead clients (complaint non-disclosure case), with the same analytical framework governing both directions of potential deception.
The obligation of the engineer to be honest and truthful and to avoid acts that might be viewed as misleading and deceptive is clearly stated in various sections of the NSPE Code of Ethics.
The Board resolves the tension by holding that honesty obligations do not automatically compel disclosure of unproven allegations, but do require the engineer to weigh whether non-disclosure would mislead the client — with prudential disclosure recommended as the professionally responsible course.
Honesty in Professional Representations Invoked by Engineer B Brochure Misrepresentation
Engineer B's continued listing of Engineer A (and Engineer Z's listing of Engineer X) as current key employees in firm brochures after their departure constituted a dishonest representation of firm qualifications and capabilities to prospective clients.
Representing departed engineers as current employees in qualification brochures is a false statement of material fact about the firm's personnel resources, violating the core professional honesty obligation.
Engineer B distributed firm brochures listing Engineer A as a key employee both during the notice period and after Engineer A's actual termination.
No competing principle justifies continued distribution of materially false personnel information; the obligation to correct is clear.
Board found that Engineer Z acted unethically
Information Valence Non-Determinative Deception Standard Engineer A Case 97-11
The Board explicitly held that the valence of information — whether positive or negative — is irrelevant to the deception analysis; the test is solely whether the communication or omission misleads or deceives the client.
Information Valence Non-Determinative Deception Standard Constraint
Engineer A was constrained to apply the same deception standard to the pending ethics complaint — which reflected negatively on Engineer A — as would apply to positive misrepresentations; the fact that disclosure would be damaging rather than self-enhancing did not alter the ethical analysis of whether non-disclosure constituted a misleading act.
NSPE Code Sections II.3.a, II.4.a, II.5.a, III.3.a; BER Case No. 97-11
The Board does not believe the nature of the information -- whether positive or negative -- is at issue.
Throughout Engineer A's active engagement with Client B while the complaint was pending
the present case involves a situation that could reflect negatively on Engineer A and his firm. However, the Board does not believe the nature of the information -- whether positive or negative -- is at issue.
Informed Decision-Making Enablement Invoked by Client B's Right to Know
Client B was deprived of material information — the pending competence complaint — that would have enabled Client B to make an informed decision about whether to continue retaining Engineer A for the manufacturing facility project.
Client B's ability to exercise informed judgment about the engineering engagement was materially compromised by Engineer A's non-disclosure; the principle requires that clients possess all information material to their retention decisions.
Informed Decision-Making Enablement Obligation
Client B tells Engineer A that he is upset by the allegations and that Engineer A should have brought the matter to Client B's attention.
The materiality of the complaint — alleging incompetence for services identical to those being rendered — makes it information Client B was entitled to possess for informed decision-making.
Marketing Material Accuracy — Engineer B Post-Termination Brochure Use
Engineer B continued to distribute promotional brochures listing Engineer A as a key employee after receiving termination notice, creating a false impression of firm personnel to prospective clients
Marketing Material Accuracy and Currency Maintenance Constraint
Engineer B was constrained to promptly update all firm brochures and marketing materials to remove Engineer A's listing as a key employee upon receiving notice of Engineer A's termination, prohibiting the continued distribution of materials that inaccurately represented the firm's current personnel.
NSPE Code of Ethics Section II.3.a; BER Case 83-1; BER Case 90-4
From the moment Engineer B received notice of Engineer A's departure through all subsequent marketing material distributions
Marketing Material Qualification Accuracy Obligation Invoked by Engineer B Brochure Distribution
Firm brochures listing Engineer A as key employee
Engineer B's distribution of firm brochures listing Engineer A as a key employee — both during the notice period and after actual termination — misrepresented the firm's personnel qualifications to prospective clients who relied on those brochures to assess firm capabilities.
Continued distribution of brochures listing a departed or departing engineer as a key employee constitutes a material misrepresentation of firm personnel qualifications, violating the obligation to ensure marketing materials accurately reflect current staffing.
Engineer B distributed firm brochures listing Engineer A as a key employee both during the notice period and after Engineer A's actual termination, constituting misrepresentation of firm personnel qualifications.
The firm's obligation to maintain accurate marketing materials is not excused by the operational inconvenience of updating brochures; prospective clients' reliance interests require timely correction.
National Society of Professional Engineers
Engineer A, Client B, State Board of Professional Engineers
Primary normative authority governing Engineer A's obligations regarding disclosure of the pending ethics complaint to Client B and the underlying competence allegation
NSPE Code of Ethics - Sections II.3.a, II.4.a, II.5.a, III.3.a
The obligation of the engineer to be honest and truthful and to avoid acts that might be viewed as misleading and deceptive is clearly stated in various sections of the NSPE Code of Ethics (See NSPE Code Sections II.3.a., II.4.a, II.5.a. and III.3.a.)
Interpreting the meaning of NSPE Code Section II.5.a, we noted that the words 'pertinent facts' are those facts that have a clear and decisive relevance to a matter at hand.
NSPE Board of Ethical Review in analyzing Engineer A's disclosure obligations
Primary normative authority establishing obligations of honesty, truthfulness, faithful agency, non-misrepresentation of qualifications, and avoidance of deceptive statements in professional practice
Non-Compelled Pending Allegation Disclosure Engineer A Client B Case 97-11
Engineer A was subject to a pending ethics complaint filed by Client C alleging incompetence in services similar to those being rendered to Client B; the Board held that automatic disclosure was not ethically compelled.
Non-Compelled Pending Allegation Disclosure Constraint
Engineer A was not automatically compelled to disclose to Client B the pending ethics complaint filed by Client C, because the complaint constituted a mere allegation — not a finding of fact or conclusion of law — and no engineer should be compelled to disclose potentially damaging allegations that could be false, baseless, or maliciously motivated.
Throughout the period of the pending, unadjudicated ethics complaint while Engineer A was serving Client B
Non-Compelled Pending Allegation Disclosure — Engineer A to Client B
Engineer A was serving Client B on design and CPM scheduling for a manufacturing facility when Client C filed a competence complaint with the state board regarding similar services; Engineer A chose not to disclose the complaint to Client B
Engineer A was not automatically compelled to disclose the pending ethics complaint filed by Client C to Client B, because the complaint constituted an unproven allegation rather than an adjudicated finding, and no engineer should be compelled to disclose potentially damaging allegations that could be false or maliciously motivated — but Engineer A was required to weigh all relevant factors and consider whether prudential disclosure was warranted given the nature and seriousness of the charges.
NSPE BER Case 97-11; NSPE Code of Ethics Sections II.3.a, II.4.a, II.5.a
From the moment Engineer A was contacted by the state board regarding the complaint through the completion of services to Client B
Non-Key-Employee Brochure Listing Permissibility Engineer Z Case 90-4
Engineer Z continued to distribute brochures listing Engineer X as an employee after Engineer X gave two weeks notice; the Board found this not unethical because Engineer X was not a highlighted key employee and hydrology was not a significant portion of firm work.
Engineer Z was not constrained from continuing to list Engineer X in firm brochures after Engineer X gave two weeks notice, because Engineer X was not highlighted as a 'key employee' and hydrology did not constitute a significant percentage of the firm's work — meaning the listing did not constitute a misrepresentation of a pertinent fact sufficient to trigger the prohibition.
NSPE Code Section II.5.a; BER Case No. 90-4
Notice-Period Brochure Appraisal Constraint Engineer B Case 83-1
Engineer B distributed previously printed brochures during the notice period; the Board held this was permissible only if Engineer B contemporaneously apprised prospective clients of the pending termination during negotiation.
Notice-Period Brochure Personnel Prospective Client Appraisal Constraint
During the period after Engineer A received termination notice but before actual departure, Engineer B was constrained to apprise each prospective client during negotiation of Engineer A's pending termination whenever distributing brochures listing Engineer A as a key employee.
NSPE Code Section II.5.a; BER Case No. 83-1
During the notice period between termination notice and actual departure of Engineer A
Pending Competence Allegation Similar-Services Disclosure Heightening — Engineer A
Client C's complaint alleged incompetence in services similar to those Engineer A was performing for Client B on the manufacturing facility project
Pending Competence Allegation Similar-Services Disclosure Heightening Constraint
The fact that Client C's competence allegation directly concerned services substantially similar to those being rendered to Client B heightened the prudential case for disclosure to Client B, because the allegation bore directly on Engineer A's fitness to perform the very work at hand — distinguishing this scenario from a complaint about unrelated services and raising the materiality threshold for the disclosure decision.
NSPE BER Case 97-11; NSPE Code of Ethics Sections II.3.a, II.4.a
From receipt of state board contact through completion of services to Client B
Pending Competence Complaint Disclosure Obligation Invoked in Engineer A Case
CPM scheduling and design services for manufacturing facility
Engineer A's obligation to disclose to Client B the existence of a pending ethics complaint alleging incompetence for services materially similar to those being actively rendered to Client B — because the complaint directly bears on Client B's ability to make an informed decision about continued retention.
The similarity between the services for which incompetence was alleged (Client C's project) and those currently being rendered (Client B's manufacturing facility design and CPM scheduling) elevates the materiality of the complaint to Client B's decision-making, triggering an affirmative disclosure obligation beyond what the Allegation-Adjudication Distinction alone would require.
the state board of professional engineers contacts Engineer A regarding an ethics complaint filed against Engineer A by Client C relating to services provided on a project for Client C that are similar to the services being performed for Client B.
The service-similarity factor tips the balance toward disclosure: when the alleged incompetence concerns the same professional domain as current services, the client's right to informed decision-making outweighs the engineer's interest in non-disclosure of unproven allegations.
the state board of professional engineers contacts Engineer A regarding an ethics complaint filed against Engineer A by Client C relating to services provided on a project for Client C that are similar to the services being performed for Client B
Pending Competence Complaint Disclosure Obligation Negated by Allegation Status
Ethics complaint filed by Client C alleging lack of competence for services similar to those being rendered to Client B
Prudential Disclosure as Relational Self-Protection
The Board holds that Engineer A does not have an automatic ethical obligation to disclose the pending ethics complaint to Client B, because the complaint is a mere allegation — not a finding of fact or conclusion of law — and the disclosure obligation that would arise from a demonstrated professional competence deficiency is not triggered by an unproven allegation of such deficiency.
The principle extracted in prior sections — that a pending competence complaint bearing on current services creates a disclosure obligation — is qualified by the allegation-adjudication distinction: the obligation is not absolute but must be weighed against the unproven character of the complaint and the potential for false or malicious allegations.
Such obligations would not compel an engineer to automatically disclose that a complaint had been filed against the engineer with the state engineering licensure board.
The Board resolves the tension by holding that the disclosure obligation is not automatic but requires the engineer to weigh all factors — the nature and seriousness of the charges — and take prudent action, which may include providing limited background information.
Pending Ethics Complaint Against Engineer A by Client C
From the state board's contact with Engineer A through Client B's independent discovery of the complaint
The state board of professional engineers contacts Engineer A regarding an ethics complaint filed against Engineer A by Client C relating to services provided on a project for Client C that are similar to the services being performed for Client B
Engineer A's status as subject of a pending ethics complaint filed by Client C with the state board, while actively serving Client B on a similar project
Client B's independent discovery of the complaint through another party
State board of professional engineers contacting Engineer A regarding an ethics complaint filed by Client C
Pertinent Fact Dual-Element Test Applied to Engineer B Brochure Case 83-1
Firm brochure listing Engineer A as key employee distributed after Engineer A's actual termination
The Board applies the two-part test to Case 83-1: (1) Engineer A's name as 'key employee' constitutes a pertinent fact because client selection decisions are materially influenced by named personnel availability, and (2) Engineer B acted with intent and purpose to enhance the firm's qualifications by knowingly distributing the brochure after terminating Engineer A — both elements satisfied, violation found.
The 'key employee' designation amplifies the pertinence of the personnel listing — clients specifically rely on named key personnel availability in selection decisions — and the firm principal's direct knowledge of the termination establishes the intent element beyond reasonable doubt.
No competing principle mitigates the violation in the post-termination distribution scenario — the dual-element test is fully satisfied and no corrective disclosure was made.
The facts presented in the case demonstrated that Engineer B acted with 'intent and purpose' in distributing the misleading brochure.
Pertinent Fact Dual-Element Test Engineer B Brochure Case 83-1
Engineer B distributed brochures listing Engineer A as a key employee both during the notice period and after actual termination, satisfying both elements of the misrepresentation test.
Pertinent Fact Dual-Element Misrepresentation Prohibition Constraint
Engineer B was constrained from distributing brochures listing Engineer A as a key employee after termination because both elements of the dual-element test were satisfied: (1) Engineer A's name constituted a pertinent fact of clear and decisive relevance to prospective clients, and (2) Engineer B acted with intent and purpose to enhance the firm's qualifications by including that name.
From the point of Engineer A's actual termination onward
Post-Departure Key Employee Brochure Prohibition Engineer B Case 83-1
Engineer B continued to distribute previously printed brochures listing Engineer A as a key employee well after Engineer A's actual termination, constituting a clear violation.
Post-Departure Key Employee Brochure Distribution Prohibition Constraint
Engineer B was absolutely prohibited from distributing brochures listing Engineer A as a key employee after Engineer A's actual termination and departure from the firm.
NSPE Code Sections II.3.a, II.4.a, II.5.a, III.3.a; BER Case No. 83-1
Moreover, Engineer B distributed the brochure after Engineer A had left the firm. The Board concluded that this would be a clear misrepresentation of a pertinent fact with the intent to enhance the firm's qualifications.
Privacy Right Material Omission Boundary Engineer A Pending Complaint Case 97-11
Engineer A faced the tension between the right not to disclose a potentially false and damaging allegation and the duty to avoid material omissions that could affect Client B's ability to make informed decisions about the engagement.
Privacy Right Material Omission Boundary Constraint
Engineer A's right not to disclose the potentially damaging and unproven ethics complaint was bounded by the prohibition against material omissions — requiring Engineer A to assess whether non-disclosure crossed from legitimately private into materially misleading territory given the similarity of the complaint's subject matter to services being rendered to Client B.
NSPE Code Sections II.3.a, II.4.a, II.5.a; BER Case No. 97-11
Privacy Right vs. Material Omission Boundary — Engineer A Competence Allegation
Engineer A faced tension between the right not to disclose an unproven allegation and the duty to avoid material omissions affecting Client B's ability to evaluate the professional relationship
Engineer A's right not to disclose the potentially damaging and unproven competence allegation was bounded by the prohibition against omitting material facts in professional representations to Client B — requiring Engineer A to assess whether the pending complaint, given its similarity to the services being rendered, crossed the threshold from legitimately private to materially outcome-determinative information that Client B would need to make an informed decision about the engagement.
NSPE Code of Ethics Sections II.3.a, II.5.a; BER Case 97-11
Privacy Right vs. Material Omission Tension in Engineer A's Complaint Disclosure
From the filing of the complaint through Engineer A's decision about disclosure to Client B
Privacy Right vs. Material Omission Tension State
Engineer A's tension between the right not to disclose a potentially false and damaging allegation versus the duty to be truthful and avoid material omissions with Client B
Engineer A's decision to disclose or not disclose, or resolution of the complaint
Engineer A should weigh all factors and, depending upon the nature and seriousness of the charges, take prudent action
such obligations would not compel an engineer to automatically disclose that a complaint had been filed against the engineer with the state engineering licensure board
Ethics complaint filed by Client C creating a potential disclosure obligation to Client B
Privacy Right vs. Material Omission — Competence Allegation
From Engineer A's receipt of the board's contact through Client B's discovery
Engineer A's tension between the right not to disclose an unproven allegation and the duty to avoid material omissions that could affect Client B's informed decision-making
Client B's independent discovery of the complaint
Engineer A's conscious decision not to disclose the pending complaint to Client B
Professional Competence Invoked by Client C Complaint Against Engineer A
Services similar to those being performed for Client B
Client C's ethics complaint alleging that Engineer A lacked the competence to perform the services in question places the Professional Competence principle at the center of the case, as the complaint's existence and similarity to current services is what triggers Engineer A's disclosure obligation to Client B.
The Professional Competence principle underlies both the complaint itself and the disclosure obligation: if Engineer A's competence is genuinely in question for a category of services, current clients receiving those services have a legitimate interest in that information.
The competence principle reinforces the disclosure obligation to Client B: the allegation is not merely a personal grievance but a professional competence concern directly relevant to ongoing services.
Client C in filing the ethics complaint; State Board in investigating Engineer A
Governs the allegation by Client C that Engineer A lacked the competence to perform services similar to those being rendered to Client B, forming the substantive basis of the ethics complaint
{'harm_type': 'Misrepresentation of available personnel and firm expertise', 'reliance_basis': 'Firm promotional brochures and resumes'}
Prospective clients who read and relied upon engineering firm brochures listing personnel qualifications, reasonably assuming that named individuals (especially 'key employees') were currently available to the firm, and who were potentially misled by continued listing of departed engineers.
{'type': 'solicited_by', 'target': 'Engineer B Credential-Misrepresenting Firm Principal'}
{'type': 'solicited_by', 'target': 'Engineer Z Credential-Misrepresenting Firm Principal Case 90-4'}
Brochure-Relying Engineering Services Consumer
The client may be familiar with an individual member of the firm as represented in the brochure
the names of the firm's members are often quite significant to the client selecting the firm
this could easily mislead potential clients into believing that Engineer A, noted as a key employee, would be available in the firm for consultation on future projects
Prudential Background Information Provision Engineer A Client B Case 97-11
The Board held that while disclosure was not compelled, Engineer A should have weighed providing limited background information to Client B for the benefit of all concerned, enabling Client B to respond to third-party inquiries.
Prudential Background Information Provision Pending Complaint Constraint
Although not ethically compelled to fully disclose the pending complaint, Engineer A was constrained to actively weigh the prudential case for providing Client B with limited, dispassionate, non-prejudicial background information about the pending matter — particularly to enable Client B to respond to third-party inquiries and to demonstrate Engineer A's professional transparency.
Prudential Disclosure Invoked by Engineer A Relational Damage
Client B's confidence in Engineer A's transparency
Engineer A–Client B professional relationship
Engineer A's failure to proactively disclose the pending complaint to Client B resulted in Client B learning of it through a third party, damaging the trust relationship — an outcome that voluntary disclosure would have mitigated or avoided.
Even if not strictly required by the Allegation-Adjudication Distinction, prudential self-interest in maintaining the client relationship counseled disclosure; Engineer A's non-disclosure left Engineer A in a weaker relational position when Client B independently learned of the complaint.
Prudential disclosure would have served both relational and ethical interests; the principle reinforces that voluntary disclosure, even of unproven allegations, is advisable when the allegation concerns the very competence being relied upon by the current client.
Later, through another party, Client B learns of the ethics complaint filed against Engineer A
Prudential Disclosure Recommendation to Engineer A Regarding Client B
Engineer A's decision about whether to voluntarily inform Client B of the pending ethics complaint
The Board recommends — without imposing an ethical obligation — that Engineer A consider providing Client B with limited background information about the pending complaint in a dispassionate and non-prejudicial manner, because doing so would give Client B early notice to respond to third-party questions and would demonstrate that Engineer A is acting professionally and has nothing to hide.
Prudential disclosure serves the engineer's relational interest by preempting the reputational damage that would result if Client B learned of the complaint from a third party — the engineer who discloses proactively demonstrates transparency and professional confidence, while the engineer who withholds and is later exposed faces a materially weaker relational position.
The Board believes Engineer A should have weighed providing Client B with some limited background information in a dispassionate and nonprejudicial matter for the benefit of all concerned.
The Board carefully distinguishes between ethical obligation (not triggered) and prudential advisability (recommended) — prudential disclosure is framed as a matter of professional wisdom and relational strategy rather than ethical compulsion.
Prudential Disclosure Relational Risk — Engineer A Non-Disclosure to Client B
Engineer A chose not to disclose the pending complaint; Client B subsequently discovered it through a third party and expressed upset that Engineer A had not disclosed it directly
Prudential Pre-Employment Disclosure Relational Risk Constraint
Although Engineer A was not ethically compelled to disclose the pending complaint to Client B, the choice not to disclose created a foreseeable relational vulnerability — specifically, that if Client B later discovered the complaint through a third party, Engineer A would be in a significantly weaker professional position than if disclosure had been made proactively with appropriate context, constraining Engineer A to weigh the downstream relational consequences of non-disclosure.
NSPE BER Case 97-11; NSPE Code of Ethics Section II.4.a
At the time of the non-disclosure decision and throughout the period the complaint remained undisclosed to Client B
Qualification Representation Standard - Firm Brochure Context
NSPE Board of Ethical Review (derived from NSPE Code Section II.5.a)
the earlier cases involved efforts by an engineering firm to enhance the firm's credentials by implying that the firm had a higher level of expertise than it actually had
NSPE Board of Ethical Review in analyzing both BER Case Nos. 83-1 and 90-4 and the present case
Standard governing honest representation of firm qualifications and personnel in promotional brochures; applied to determine whether continued listing of a departed or departing engineer constitutes a misrepresentation of pertinent facts with intent to enhance firm qualifications
Was it unethical for Engineer A to not report to Client B the ethics complaint filed against Engineer A by Client C?
Does the fact that Client C's competence allegation concerns services similar in nature to those Engineer A is currently performing for Client B elevate the materiality of the pending complaint to a level that should have triggered a disclosure obligation, even if the complaint remains unresolved?
Given that Client B learned of the complaint through a third party and expressed that Engineer A should have disclosed it, does the relational damage caused by non-disclosure itself constitute an ethical harm independent of whether disclosure was technically required?
At what point, if any, does a pending ethics complaint transition from a private professional matter into information that a current client has a legitimate interest in knowing, and who bears the burden of making that determination — the engineer, the client, or the licensing board?
Should Engineer A have independently assessed whether the competence concerns raised by Client C were substantively valid, and if so, whether that self-assessment should have influenced the decision to continue performing similar services for Client B without any disclosure?
Does the Faithful Agent Obligation — which requires Engineer A to act in Client B's best interest and enable informed decision-making — conflict with the Allegation-Adjudication Distinction, which holds that an unresolved complaint does not constitute established fact and therefore need not be disclosed?
Does the Honesty and Non-Deception Obligation conflict with the Privacy Right versus Material Omission boundary when Engineer A's silence about a pending competence complaint — in a context where similar services are being rendered — could reasonably be interpreted by Client B as an implicit representation that no relevant professional concerns exist?
Does the Prudential Disclosure Recommendation to Engineer A — which suggests voluntary disclosure would have been wise — conflict with the Pending Competence Complaint Disclosure Obligation Negated by Allegation Status, and if so, does the Board's framing of disclosure as merely prudent rather than obligatory undermine the strength of the Faithful Agent Obligation in contexts where client trust is materially at stake?
Does the Valence-Neutral Standard — which holds that omissions of negative information can be as deceptive as omissions of positive information — conflict with the Allegation-Adjudication Distinction when applied to Engineer A's non-disclosure, given that the Board used the valence-neutral standard to find deception in the brochure cases but declined to apply equivalent scrutiny to Engineer A's silence about a pending competence complaint?
From a deontological perspective, did Engineer A fulfill their duty as a faithful agent to Client B by withholding information about a pending competence complaint involving services nearly identical to those being performed for Client B, regardless of whether the complaint had been adjudicated?
From a consequentialist perspective, did Engineer A's decision not to disclose the pending ethics complaint produce better overall outcomes for the professional relationship with Client B, given that Client B ultimately discovered the complaint through a third party and expressed that trust had been undermined?
From a virtue ethics perspective, did Engineer A demonstrate the professional integrity and honesty expected of a licensed engineer by choosing silence over voluntary disclosure when a competence allegation directly paralleled the scope of active services being rendered to Client B?
From a deontological perspective, does the allegation-adjudication distinction — the principle that an unproven complaint does not carry the same moral weight as a finding of misconduct — adequately discharge Engineer A's duty of non-deception toward Client B under the NSPE Code, or does the similar-services context create a heightened disclosure duty that the distinction cannot override?
Would Client B's trust in Engineer A have been preserved, and would the professional relationship have remained intact, if Engineer A had proactively disclosed the pending ethics complaint at the time it was received from the state licensing board rather than allowing Client B to discover it through a third party?
What if the ethics complaint filed by Client C had involved services in a completely different engineering domain from those being performed for Client B — would the Board's conclusion that non-disclosure was ethical have been more clearly justified, and does the similar-services context in the actual case represent a meaningful ethical distinction that the Board underweighted?
What if Engineer A had disclosed the pending complaint to Client B but framed it with full context — explaining that it was an unproven allegation, describing the nature of the services involved, and affirming confidence in their own competence — would such a disclosure have satisfied both the faithful agent obligation and the allegation-adjudication distinction simultaneously, thereby representing a superior ethical path to either pure silence or unqualified disclosure?
What if the state licensing board had found Engineer A guilty of the competence violation alleged by Client C before Engineer A completed the project for Client B — would Engineer A have then been obligated to disclose the adjudicated finding to Client B, and does this hypothetical reveal that the Board's ethical conclusion in the actual case rests entirely on the unresolved procedural status of the complaint rather than on any substantive assessment of Engineer A's actual competence?
State Board of Professional Engineers Rules of Professional Conduct
State Licensing Board Rules of Professional Conduct
State Board of Professional Engineers in contacting Engineer A regarding the complaint
The state board of professional engineers is the regulatory body that received and is investigating the ethics complaint filed by Client C against Engineer A, establishing the formal regulatory framework within which the complaint is adjudicated
Third-Party Discovery Trust Retroactive Undermining — Client B Discovery of Complaint
Client B learned of the pending ethics complaint through another party rather than from Engineer A, causing Client B to express that Engineer A should have disclosed the matter directly
Third-Party Discovery Trust Retroactive Undermining Non-Exculpation Constraint
Engineer A's decision not to disclose the pending complaint to Client B was not exculpated by the eventual third-party discovery of the complaint by Client B — the third-party discovery retroactively undermined the trust foundation of the professional relationship, a foreseeable consequence that Engineer A was constrained to weigh when making the initial non-disclosure decision.
NSPE Code of Ethics Sections II.3.a, II.4.a; BER Case 97-11
From the moment of non-disclosure decision through Client B's third-party discovery of the complaint
Valence-Neutral Standard Applied to Distinguish Present Case from Brochure Cases
Non-disclosure of pending ethics complaint to Client B
The Board explicitly holds that the fact that the pending complaint would reflect negatively on Engineer A — unlike the positive credential inflation in Cases 83-1 and 90-4 — does not change the analytical framework; the ethical question is whether the non-communication of the complaint misleads or deceives Client B, not whether Client B would be pleased or disappointed by the information.
The valence-neutral standard prevents engineers from using the self-protective character of non-disclosure as a categorical defense — the same misleading-communication analysis applies whether the withheld information would enhance or diminish the engineer's standing in the client's eyes.
The Board applies the valence-neutral standard but ultimately finds that the allegation-adjudication distinction provides the operative reason why non-disclosure does not constitute misleading conduct in this case — not the negative valence of the information.
In contrast, the present case involves a situation that could reflect negatively on Engineer A and his firm.
brochure distribution during Engineer A's employment but after notice (Case 83-1) before brochure distribution after Engineer A's actual termination (Case 83-1)
ethics complaint filed by Client C during Engineer A rendering services to Client B
services provided for Client C (prior project) before ethics complaint filed by Client C with state board
services provided for Client C (prior project) before services being performed for Client B (current project)
termination notice issued to Engineer A (Case 83-1) before actual termination of Engineer A (Case 83-1)