At-Will Professional Mobility of Four Departed Engineers
From the point of departure from Firm A through establishment of Firm B
Four of the key engineering employees of a firm headed by Engineer A left the firm at the same time following disagreement on certain firm policies and promptly organized a new engineering firm, B, with the four engineers as the principals
Four key engineering employees who departed Firm A following policy disagreements and formed Firm B
Not terminated — ongoing state of independent professional practice
Disagreement on firm policies leading to simultaneous departure of four key engineers
NSPE Board of Ethical Review Prior Cases on Engineer Competition and Client Solicitation
Engineer A has protested the action of the four engineers on ethical grounds, alleging that they violated the rule against supplanting
BER in reasoning by analogy to resolve the ethical questions raised
Provides analogical reasoning patterns for evaluating the ethics of post-departure client solicitation, the rule against supplanting, and mutual disparagement between competing engineering firms
NSPE Board of Ethical Review in the supplanting analysis
Earlier precedent cited in support of the supplanting rule interpretation requiring an existing contract or active negotiation
In Case 75-15 we considered the meaning of 'maliciously or falsely' in determining whether the criticism of another engineer offended the code.
…we are constrained to avoid a narrow and legalistic interpretation (of those words) and conclude that those words are not a necessary element to find that §12 applies when the purpose…is clearly to prevent, hinder, or otherwise put obstacles in the path of (the other engineer).
NSPE Board of Ethical Review in analyzing the mutual criticism between Engineer A and Firm B
Precedent interpreting the meaning of 'maliciously or falsely' under §12, establishing that a narrow legalistic reading should be avoided and that the provision applies when the purpose is to prevent, hinder, or obstruct another engineer's prospects
As most recently stated in Case 76-5, '…for the supplanting standard to apply the facts must demonstrate that the complaining engineer either had a contract for the work, or had been selected for negotiation by the client for the particular work…'
NSPE Board of Ethical Review to resolve the supplanting charge
Most recently cited precedent establishing the two-part test for the supplanting rule: the complaining engineer must either have a contract for the work or have been selected for negotiation for the particular work
BER Objective Adverse Comment Proper Circumstances Discrimination
Objective Adverse Comment Proper Circumstances Discrimination Capability
The BER demonstrated the capability to identify the narrow circumstances in which objective adverse comment on a competitor's capacity is permissible, while finding both parties' comments fell outside those circumstances
The BER articulated the distinction between permissible objective adverse comment and prohibited self-interest-tainted disparagement, applying it to find both parties in violation
Articulating that objective, non-self-interest-tainted adverse comment in proper circumstances is not entirely foreclosed, while finding both Engineer A and Firm B's comments were self-interest-tainted and therefore prohibited
We do not entirely foreclose the right or duty of an engineer to offer adverse comments on the capacity of another engineer or firm to a prospective client in proper circumstances where the adverse comment is objective and not tinged by self-interest.
Both sides were in clear error by indulging in criticisms of the other when, as here, the aspersions were cast purely in terms of attempting to secure a personal benefit
BER Purpose-to-Obstruct Case 75-15 Application Both Parties
Purpose-to-Obstruct BER Precedent Purposive Interpretation Application Capability
The BER applied the purposive interpretation from Case 75-15 to find that both Engineer A and Firm B violated §12 without requiring literal malice or falsity, based on the purpose of hindering the other's prospects
The BER retrieved and applied Case 75-15's purposive interpretation to evaluate the competitive capability critiques of both Engineer A and Firm B, finding both in violation based on their obstructive purpose
Application of BER Case 75-15's purposive standard — that 'maliciously or falsely' are not necessary elements when the purpose is to prevent, hinder, or obstruct the other engineer — to find both parties in violation of §12
The facts in the present case leave little doubt that the motivation and intent of both A and the four engineers of Firm B were to injure the prospects of the other.
we are constrained to avoid a narrow and legalistic interpretation (of those words) and conclude that those words are not a necessary element to find that §12 applies when the purpose…is clearly to prevent, hinder, or otherwise put obstacles in the path of (the other engineer).
Both Parties Adverse Comment Permissibility Boundary Objective Non-Self-Interested Standard
The BER acknowledged that adverse competitor comments are not categorically prohibited but established the three-part permissibility boundary that neither party met in this case
Objective Non-Self-Interested Adverse Competitor Comment Permissibility Boundary Constraint
Both Engineer A and the four engineers of Firm B were constrained to offer adverse comments about the other's capacity only when such comments were objective, not tinged by self-interest, and made in proper circumstances — conditions that neither party satisfied in this case.
During competitive solicitation of former clients following departure of four engineers
CausalLink_Coordinated Simultaneous Resig
CausalLink_Engineer A Disparages Firm B C
CausalLink_Filing Ethical Complaint Again
CausalLink_Firm A Client Reassurance Outr
CausalLink_Firm B Disparages Firm A Capab
CausalLink_Pre-Departure Client Solicitat
CausalLink_Solicitation Using Specific Pr
CausalLink_Solicitation of Former Clients
Engineering services market now contains a new competitor with insider knowledge of Firm A's clients, projects, and capabilities; ethical constraints on competition activated
The formation of Firm B by the four departing engineers created a direct competitive conflict with Firm A in the same market, targeting the same client base, triggering professional conduct norms around fair competition.
The four engineers who founded firm B did not violate the Code of Ethics by generally seeking work from former clients of Engineer A, but they were in violation of the code with regard to projects for which they had particular knowledge while in the employ of A.
The Board's conclusion that Firm B violated the Code only with respect to projects for which the departing engineers had particular knowledge leaves unresolved a critical boundary problem: because the same four engineers who hold specialized project knowledge are also the ones conducting all general solicitation, the act of general solicitation cannot be cleanly separated from the implicit deployment of that specialized knowledge. When a former client receives a solicitation from engineers who worked on that client's specific projects, the solicitation itself signals insider familiarity regardless of whether confidential details are explicitly invoked. The Board should have articulated a conduct standard—such as requiring that solicitation communications be limited to publicly available information and make no reference to prior project involvement—to give the specialized knowledge constraint operational meaning rather than leaving it as a nominal restriction that is practically unenforceable in the context of personal professional relationships.
The Board's ruling that general client solicitation by Firm B was permissible implicitly rests on the absence of a written non-compete agreement and the at-will employment status of the four departing engineers. However, the Board did not address whether the coordinated, simultaneous departure of four key engineers—apparently planned in advance while still employed by Engineer A—itself constituted a breach of the duty of loyalty that exists independently of any contractual restriction. Pre-departure planning of competitive solicitation strategy, even without overt promotional action before resignation, may violate the obligation of good faith owed to an employer during the employment relationship. The Board's literal reading of the pre-departure promotional prohibition—finding no violation because no overt action was taken before departure—fails to account for the ethical significance of the intent formed and the coordination executed while the engineers still owed fiduciary-adjacent duties to Firm A. A more complete analysis would have distinguished between the permissibility of the ultimate competitive outcome and the ethical quality of the process by which it was achieved.
The Board's finding that the specialized knowledge constraint applies to specific projects for which the departing engineers had prior involvement raises a further unresolved question about collective versus individual knowledge attribution. If only one of the four engineers had project-specific knowledge about a given former client's work, the Board's ruling is ambiguous as to whether all four principals of Firm B are thereby restricted from soliciting that client, or only the one engineer with direct prior involvement. Given that Firm B operates as a unified entity and that solicitation is conducted on behalf of the firm rather than individual engineers, the more ethically rigorous position would hold that specialized knowledge possessed by any one principal taints the firm's solicitation of that client as a whole—since the firm would inevitably deploy that knowledge in structuring its competitive approach even if the knowledgeable engineer is not the one making direct contact. The Board's silence on this aggregation question leaves a significant gap in the practical application of its ruling.
The Board's conclusion that Firm B acted unethically in casting doubt on Engineer A's ability to provide quality services correctly identifies the violation but does not adequately examine the structural reason why such disparagement is particularly problematic in this context: the departing engineers possessed insider knowledge of Firm A's operational capacity, staffing, and project commitments, giving their negative assessments a credibility and specificity that an ordinary competitor's criticism would lack. This asymmetric informational position means that Firm B's disparagement was not merely a competitive slight but a potentially devastating use of confidential organizational knowledge to undermine a former employer's market standing. The ethical violation is therefore more serious than the Board's symmetric treatment alongside Engineer A's reciprocal disparagement suggests, because Firm B's statements carried the implicit authority of insiders and were likely more damaging to Engineer A's client relationships than Engineer A's statements about the newly formed and unknown Firm B.
The Board's symmetric treatment of Firm B's and Engineer A's disparagement as equivalent ethical violations, while formally correct, obscures a morally relevant distinction between the two actors' situations. Engineer A's statements to former clients about Firm B's qualifications occurred in the context of defending his firm's existing client relationships against an aggressive competitive incursion—a reactive posture that, while still ethically impermissible, differs in character from Firm B's proactive disparagement during offensive solicitation. The Board's refusal to distinguish between defensive reassurance communications and offensive competitive attacks, while consistent with a strict reading of the prohibition on reputation injury, forecloses a potentially important ethical nuance: that the purpose and context of disparaging statements may bear on their moral gravity even when both are formally prohibited. A more complete analysis would acknowledge this distinction while still affirming that neither form of disparagement is ethically permissible, thereby providing clearer guidance for future cases involving reactive versus proactive competitive communications.
The Board's finding that Engineer A acted unethically in disparaging Firm B's qualifications is analytically incomplete because it does not address the threshold question of whether Engineer A's ethical complaint against the four engineers was itself compromised by competitive self-interest. Engineer A simultaneously filed an ethical protest against Firm B and engaged in the symmetrically equivalent misconduct of disparaging Firm B's capabilities—a posture that suggests the ethical complaint may have been instrumentalized as a competitive weapon rather than filed from a disinterested concern for professional standards. The Board's failure to examine this dynamic leaves open the possibility that the formal ethics process was being used strategically to disadvantage a competitor, which would itself constitute an ethical concern independent of the merits of the underlying complaint. A complete analysis should have noted that Engineer A's credibility as a complainant was undermined by his own concurrent violation, and that engineers who invoke the Code against competitors while simultaneously violating it occupy an ethically compromised position that the Board should explicitly discourage.
The Board's conclusions collectively establish a framework in which competitive solicitation is broadly permissible, specialized knowledge exploitation is restricted, and mutual disparagement is prohibited—but this framework does not address the practical impossibility of honest competitive solicitation that is entirely free of implicit comparative judgment. When Firm B contacts a former client of Engineer A to announce its availability, the very act of solicitation carries an implicit message that Firm B believes it can serve the client as well as or better than Engineer A. The Board's prohibition on disparagement, if applied with maximal strictness, would effectively prohibit competitive solicitation altogether, since any solicitation of a client currently served by another engineer implicitly questions that engineer's sufficiency. The Board should have articulated a standard distinguishing between affirmative false or misleading statements about a competitor's incapacity—which are clearly prohibited—and the inherent comparative implication of competitive solicitation itself, which must be tolerated if free and open competition is to have any meaning. Without this distinction, the disparagement prohibition and the competition permission are in irresolvable tension.
The four engineers comprising Firm B acted unethically in casting doubt on the ability of Engineer A to provide quality services.
Regarding Q101: The coordinated simultaneous resignation of all four engineers, while not explicitly addressed by the Board, carries independent ethical weight beyond subsequent solicitation conduct. A coordinated group departure timed to maximize disruption—particularly when it strips a firm of key personnel at once—may itself constitute a breach of the duty of loyalty owed to an employer during the period of employment. However, absent evidence that the coordination was specifically designed to cripple Firm A rather than simply to enable the formation of a viable competing firm, the ethical analysis should focus on intent and effect. Because the four engineers were employees rather than partners or principals of Firm A, their collective at-will departure, even if coordinated, does not by itself rise to an ethical violation under the Code. The Board's implicit recognition of at-will professional mobility supports this conclusion. Nevertheless, if the timing was deliberately chosen to coincide with a critical project phase or client commitment period for the purpose of maximizing harm to Firm A rather than merely enabling competitive formation, a stronger case for a loyalty-based violation could be made. The case facts do not establish that level of purposive disruption, so no violation should be found on this ground alone.
Regarding Q102: The Board's conclusion that the four engineers did not violate the Code by generally soliciting former clients implicitly rests on a literal reading of the pre-departure promotional prohibition—that is, no overt promotional action was taken before resignation. However, the deeper ethical question is whether internal planning discussions about client solicitation, conducted while still employed by Engineer A, constituted a breach of the duty of loyalty. From a deontological standpoint, the duty of loyalty requires that an employee not actively work against the employer's interests during the employment relationship. Internal strategic planning for post-departure competition, if it remained purely deliberative and did not involve misappropriation of confidential information, use of firm resources, or covert client contact, falls within the permissible zone of an employee's right to plan a career transition. The Code's literal boundary—prohibiting promotional action before departure, not deliberative planning—supports the conclusion that pre-departure discussion without overt action does not constitute a violation. This conclusion is reinforced by the practical reality that requiring engineers to form a competing firm without any prior planning would impose an unreasonable and unenforceable standard. Accordingly, no ethical violation arises from the pre-departure planning discussions themselves.
Regarding Q103: The four departing engineers had developed personal professional relationships with clients of Firm A during their employment, and this raises the question of what transparency obligations they owed those clients upon departure. While the Code does not impose an affirmative duty to disclose the internal reasons for departure—such as policy disagreements with Engineer A—the engineers did owe clients honest and non-deceptive communication in the course of their solicitation outreach. This obligation is distinct from the disparagement prohibition: it concerns what the engineers were required to say, not merely what they were prohibited from saying. Specifically, when contacting former clients, the engineers were ethically obligated to accurately represent the nature and capacity of their new firm, to avoid creating false impressions about Firm A's remaining capabilities, and to refrain from leveraging the personal trust built during employment in a manner that exploited confidential knowledge. The Board's finding that Firm B violated the Code by casting doubt on Engineer A's capacity is consistent with this transparency framework: the personal relationships that gave the engineers access to former clients also heightened their obligation to communicate honestly and without self-interested distortion.
Regarding Q104: The Board did not examine whether Engineer A's ethical complaint against the four engineers was itself ethically compromised by his competitive self-interest. This omission is analytically significant. Engineer A filed the complaint in the context of an active business rivalry, and his stated grounds—violation of the supplanting rule—were ultimately rejected by the Board. Moreover, the Board found that Engineer A himself engaged in the symmetrically equivalent misconduct of disparaging Firm B's qualifications. This raises the question of whether the complaint was filed as a genuine expression of concern for professional standards or as a competitive weapon. While the Code does not prohibit an engineer from filing an ethical complaint against a competitor, the use of the ethics process as a tool of competitive suppression rather than professional protection would itself implicate the honesty and integrity obligations of the Code. The Board's finding that Engineer A violated the Code through disparagement, combined with the rejection of his supplanting allegation, suggests that his conduct throughout the episode was substantially motivated by competitive self-interest rather than disinterested professional concern. A more complete analysis would have examined whether the complaint filing itself met the standard of honest, non-self-interested professional conduct.
Regarding Q201: The tension between the Free and Open Competition principle and the Specialized Knowledge Constraint is most acute precisely because the same engineers who hold confidential project knowledge are also the ones conducting the solicitation. The Board's resolution—permitting general solicitation while restricting solicitation tied to specific project knowledge—draws a principled but practically difficult boundary. The ethical line should be drawn not at the identity of the soliciting engineer but at the nature of the information deployed in the solicitation. If a departing engineer contacts a former client and relies on general professional familiarity—knowledge of the client's industry, publicly available project history, or the personal relationship itself—this falls within permissible competition. If, however, the solicitation leverages non-public project details, budget information, technical specifications, or strategic priorities learned in confidence during employment, it crosses into impermissible exploitation of specialized knowledge. The difficulty is that the personal relationship itself is inseparable from the knowledge context in which it was formed. The Board's ruling implicitly requires that engineers with specialized knowledge conduct solicitation as if they did not possess that knowledge—a standard that is ethically sound in principle but operationally demanding in practice.
Regarding Q202 and Q204: The Board's symmetric finding that both Engineer A and Firm B violated the Code through disparagement correctly resists the argument that competitive solicitation and reputational impact are inseparable. The ethical distinction lies between the inevitable incidental reputational effect of competition—which is permissible—and affirmative statements designed to cast doubt on a competitor's qualifications—which are not. Engineer A's framing of his disparagement as defensive reassurance to existing clients rather than offensive competitive attack does not alter the ethical analysis. The Code's prohibition on injuring a colleague's professional reputation applies regardless of whether the injurious statement is framed as reassurance, warning, or critique. The relevant question is not the speaker's characterization of their intent but whether the statement was designed to obstruct the other party's professional standing. Both parties crossed this line. The Board's symmetric application of the disparagement prohibition appropriately rejects the defensive-reassurance exception, because accepting such an exception would effectively permit unlimited reputational harm so long as it was framed as client protection rather than competitive attack.
Regarding Q203: The conflict between the Honesty Obligation and the Self-Interest-Tainted Adverse Critique Prohibition presents one of the most difficult boundary problems in competitive engineering ethics. The Board's ruling implies that even objectively true statements about a competitor's qualifications are ethically impermissible when made in a context of competitive self-interest and without a disinterested basis. This standard is defensible but requires careful articulation. The appropriate test is not whether the statement is factually accurate but whether the speaker is in a position to make the adverse assessment without a disqualifying conflict of interest, and whether the statement is made through an appropriate channel—such as a formal peer review, a client's direct inquiry answered honestly, or a professional standards proceeding—rather than as an instrument of competitive solicitation. A competing engineer who volunteers adverse capability assessments about a rival during client solicitation cannot claim the honesty defense, because the competitive context itself taints the communication regardless of factual accuracy. If Engineer A or Firm B possessed genuine, factually grounded concerns about the other's capacity, the ethical path was to decline to comment on the competitor's qualifications during solicitation, not to weaponize those concerns in a competitive context.
Regarding Q301: From a deontological perspective, the duty of loyalty owed by an employee to an employer is a real but bounded obligation. It prohibits active sabotage, misappropriation of confidential information, and covert client solicitation during employment, but it does not extend to prohibiting an employee from mentally or deliberatively planning a career transition. The four engineers' internal discussions about post-departure client solicitation, conducted without overt promotional action, do not violate the categorical duty of loyalty because the duty's scope is defined by the prohibition on acting against the employer's interests, not by the prohibition on thinking about future competition. A deontological analysis that extended the loyalty duty to cover deliberative planning would impose an obligation that is both unenforceable and inconsistent with the fundamental dignity of the employee as a rational agent capable of planning their own professional future. The more demanding deontological question is whether the coordinated nature of the departure—designed to maximize the competitive impact of the group's exit—crossed the line from permissible planning into purposive harm. On the facts as presented, this threshold was not clearly reached.
Regarding Q302: From a deontological perspective, the duty to avoid injuring a colleague's professional reputation does not admit of a factual-accuracy exception in the context of competitive solicitation. The categorical nature of the prohibition derives from the recognition that competitive contexts systematically distort the speaker's ability to make disinterested assessments, and that clients are poorly positioned to discount for this distortion. Even if an engineer holds a genuinely and reasonably formed belief that a competitor lacks the capacity to complete a project, the duty to avoid reputational injury prohibits expressing that belief to clients during competitive solicitation. This is not because honesty is less important than reputation protection, but because the competitive context renders the communication structurally dishonest regardless of its factual content—the speaker cannot be a reliable witness to their competitor's incapacity when they stand to benefit from the client's acceptance of that assessment. The appropriate deontological response when an engineer has genuine concerns about a competitor's qualifications is to raise those concerns through appropriate professional channels, not to deploy them as competitive instruments.
Regarding Q303: From a consequentialist perspective, the Board's asymmetric ruling—permitting general client solicitation while restricting solicitation tied to specialized project knowledge—produces a superior outcome compared to either extreme alternative. A blanket prohibition on former-client solicitation would suppress legitimate competition, reduce client choice, and effectively grant incumbent firms a permanent monopoly over client relationships developed through the labor of employees who may have been the primary relationship-builders. A blanket permission including specialized knowledge exploitation would undermine the confidentiality norms that make client-engineer relationships possible, reduce clients' willingness to share sensitive project information, and create perverse incentives for engineers to accumulate confidential knowledge as a competitive asset for future departure. The Board's middle path preserves competitive market efficiency by allowing the four engineers to compete on the basis of their general professional skills and client relationships, while protecting the confidentiality interests that sustain the profession's trustworthiness. The consequentialist case for this outcome is strong, though its practical enforcement—requiring engineers to self-police the boundary between general and specialized knowledge in solicitation—imposes monitoring costs that a blanket rule would avoid.
Regarding Q304: From a virtue ethics perspective, Engineer A's conduct reveals a significant failure of professional integrity. The virtue of integrity requires consistency between one's stated principles and one's actions. Engineer A protested the departing engineers' conduct on ethical grounds while simultaneously engaging in the symmetrically equivalent misconduct of disparaging Firm B's qualifications to former clients. This inconsistency is not merely a technical ethical violation—it reflects a deeper failure of the virtue of integrity, which requires that an engineer's ethical complaints be grounded in genuine concern for professional standards rather than competitive self-interest. A virtuous engineer in Engineer A's position would have recognized that his own conduct was subject to the same ethical constraints he was invoking against Firm B, and would have either refrained from disparagement or declined to file an ethical complaint that he was not himself in a position to make with clean hands. The Board's finding that Engineer A violated the Code is consistent with this virtue ethics analysis, though the Board did not explicitly address the integrity implications of his simultaneous complaint-filing and disparagement.
Regarding Q401: If a written non-compete agreement had been in place between the four engineers and Engineer A, the Board's analysis of general client solicitation would almost certainly have reached a different conclusion, though the ethical and legal dimensions would need to be carefully distinguished. A valid, reasonable non-compete agreement would have created a contractual obligation that itself carries ethical weight under the Code's requirement that engineers fulfill their professional obligations and honor commitments. Solicitation of former clients in breach of such an agreement would not merely be a contractual violation—it would constitute an ethical violation of the obligation to honor professional commitments. However, the ethical analysis would still need to assess whether the non-compete's scope was reasonable, since an overly broad restriction that effectively prevented the engineers from practicing their profession would itself raise ethical concerns about the fairness of the employment relationship. The absence of any non-compete agreement in this case was therefore not merely a legal fact but an ethically relevant one: it confirmed that Engineer A had not secured the contractual protection that would have altered the competitive solicitation analysis.
Regarding Q402: The Board's ruling on the supplanting rule correctly held that no violation occurred with respect to clients for whom no formal selection or negotiation had commenced. The counterfactual question of whether a different outcome would follow if formal selection or negotiation had already begun is answered by the Board's own precedent framework: once active negotiation or selection has commenced, solicitation by a competing firm crosses into supplanting territory. If Firm B had contacted clients at a stage where Engineer A was already in active negotiation—not merely in preliminary discussion—the ethical analysis would have shifted decisively against Firm B. The ethical significance of the pre-award status is that it defines the point at which a prospective client relationship has crystallized sufficiently to warrant protection from competitive interference. Prior to that point, the client retains full freedom to consider alternatives, and competitive solicitation serves the client's interest in market choice. After that point, competitive solicitation that is designed to displace an engineer already in active negotiation constitutes an improper interference with an established professional relationship.
Regarding Q403: The counterfactual of objectively verifiable, non-competitively motivated adverse statements about a competitor's qualifications points to the outer boundary of the disparagement prohibition. The Board's ruling, read in light of the purpose-to-obstruct standard applied in prior cases, suggests that the prohibition is not absolute but is triggered by the combination of competitive self-interest and the intent or effect of obstructing the competitor's professional standing. If Engineer A's statements about Firm B's qualifications had been made in a context entirely free of competitive motivation—for example, in response to a direct client inquiry, supported by objective evidence, and without any solicitation of the client's business—a stronger argument could be made that such statements fell within the permissible zone of honest professional communication. However, the facts of this case do not approach that counterfactual: Engineer A's statements were made in the context of active competitive solicitation, were motivated by his interest in retaining clients, and were not grounded in any objective assessment process. The ethical violation therefore stands regardless of whether the statements happened to be factually accurate.
Regarding Q404: The Board's ruling on specialized knowledge solicitation restriction raises the question of whether the restriction should apply to all four engineers collectively when only one of them possessed project-specific knowledge about a given client. The most defensible answer is that the restriction should apply individually rather than collectively: only the engineer or engineers who actually possessed the specialized knowledge about a specific client's project should be restricted from soliciting that client on the basis of that knowledge. The other engineers, who lack the specialized knowledge, should remain free to solicit the same client under the general competition framework. However, a practical complication arises when the solicitation is conducted collectively as a firm rather than individually: if the firm's pitch to a client is informed by the specialized knowledge of even one of its principals, the entire solicitation is tainted by that knowledge regardless of which engineer formally makes the contact. The ethical obligation therefore extends to ensuring that the firm's collective solicitation of any given client is not structured or informed by the specialized knowledge of any one of its principals, even if that principal is not the one making direct contact.
Engineer A acted unethically in casting doubt on the ability of Firm B to provide quality services.
The Board resolved the tension between Free and Open Competition and the Specialized Knowledge Constraint by drawing a functional boundary at the point where competitive advantage derives from confidential project-specific information rather than from general professional skill or pre-existing personal relationships. General solicitation of former clients is permissible because it reflects the natural consequence of professional mobility and market competition; however, when a departing engineer's competitive edge on a specific opportunity is traceable to confidential knowledge acquired in the course of employment—knowledge the client shared with the firm in trust—that advantage is ethically impermissible regardless of whether a formal contract existed. This resolution teaches that Free and Open Competition is not an absolute principle but a bounded one: it operates within a floor set by fiduciary-adjacent obligations that survive the employment relationship. The same engineers who are free to compete generally are not free to weaponize confidential knowledge as a competitive instrument, even when no contractual non-compete exists to enforce that boundary.
The tension between Competitive Employment Freedom and the Prohibition on Reputation Injury was resolved not by subordinating either principle to the other, but by distinguishing the act of competition from the method of competition. The Board affirmed that departing engineers have an unqualified right to form a competing firm and solicit former clients, but it simultaneously held that the communicative conduct accompanying that solicitation is independently subject to ethical scrutiny. This resolution reveals a critical principle prioritization hierarchy: the right to compete is protected at the level of action, but the manner of competitive communication is governed by a separate and co-equal obligation of professional honesty and collegial non-harm. Competitive Employment Freedom does not license disparagement as a competitive tool; it licenses only the underlying competitive act. The practical implication is that an engineer can lawfully do everything Firm B did in terms of market entry while still being found in violation for how that entry was communicated to prospective clients. The principle tension is therefore not resolved by priority but by domain separation—freedom governs the act, honesty governs the speech.
The most analytically significant principle interaction in this case is the collision between the Honesty Obligation in Competitive Solicitation Communications and the Self-Interest-Tainted Adverse Critique Prohibition, applied symmetrically to both parties. The Board's symmetric finding—that both Engineer A and Firm B violated the code by disparaging each other's qualifications—establishes that the ethical prohibition on capability disparagement is not contingent on the falsity of the statement, the identity of the aggressor, or the defensive framing of the communication. Engineer A's reassurance to clients that his firm retained capacity was treated as ethically equivalent to Firm B's offensive doubt-casting, because both communications crossed into adverse commentary about a competitor's qualifications motivated by competitive self-interest. This teaches a demanding principle: the Self-Interest-Tainted Adverse Critique Prohibition operates as a near-categorical constraint that forecloses competitively motivated adverse commentary even when the underlying concern may be factually grounded. The only permissible escape valve suggested by the Board's reasoning—drawing on the Purpose-to-Obstruct Standard from prior precedent—is adverse commentary made in objectively proper circumstances entirely free of competitive self-interest, a standard that neither party met. The case therefore teaches that mutual wrongdoing does not cancel ethical obligations, that reactive disparagement is not ethically distinguishable from proactive disparagement, and that the profession's interest in collegial non-harm takes priority over any individual engineer's interest in competitive self-defense through reputational attack.
Loss of institutional knowledge and client relationships for Firm A
Signal to clients and market of internal conflict at Firm A
Significant disruption to Firm A's operational capacity
Personal autonomy to seek better employment conditions
Right to freely associate and form a competing firm
Exit Firm A together to pursue independent practice free from disagreeable policies
Awareness of ethical duties during employment transition
Understanding of employment rights and obligations
Implicit duty of loyalty to employer during employment period
Obligation to minimize foreseeable harm to employer when exercising right to leave
Four engineers collectively chose to resign from Firm A at the same time following disagreements over firm policies, amplifying the operational impact on Firm A beyond what individual departures would have caused.
Coordinated Simultaneous Resignation → Firm A Client Relationship Disrupted
Upon the simultaneous resignation of four engineers, Firm A's existing and prospective client relationships were disrupted
Had engineers resigned individually over time, Firm A could have managed transitions; simultaneous departure made disruption nearly inevitable
Engineers held client-facing or project-critical roles
No adequate succession or knowledge transfer plan at Firm A
Simultaneous departure of multiple engineers (not staggered)
Coordinated simultaneous resignation of four engineers with client relationships was alone sufficient to disrupt Firm A's client continuity
Should Firm B's engineers solicit former clients of Engineer A generally, restrict solicitation only to clients for whom none of them held specialized project knowledge, or refrain from all former-client solicitation pending ethics guidance?
Four engineers departed Firm A simultaneously, formed Firm B, and then solicited former clients of Engineer A. The core question is whether this general solicitation of former clients — where no active contract or formal selection/negotiation was underway — constituted an ethical violation of the supplanting prohibition or was permissible competitive activity under free enterprise principles. A secondary constraint applies where any departing engineer held specialized project-specific knowledge about a given client's work.
Proceed with general solicitation of all former clients of Engineer A where no active contract exists, but refrain from competing for specific projects on which any Firm B principal gained particular project-specific knowledge during employment at Firm A, unless all interested parties consent.
Treat all former-client solicitation as permissible competitive activity under the free enterprise principle, on the ground that general professional familiarity and personal client relationships — not confidential project data — are the basis of solicitation, and that no contractual non-compete restricts this activity.
Refrain from soliciting any former client of Engineer A until consent of all interested parties is obtained, on the ground that the personal relationships and project familiarity developed during employment are inseparable from specialized knowledge and that the ethical risk of inadvertent knowledge exploitation is too high to manage through self-policing.
Firm B Engineers (Four Departing Engineers)
Should Firm B's engineers, when soliciting former clients of Engineer A, confine their communications to affirmative representations about Firm B's own capabilities, or may they also make adverse assessments of Engineer A's capacity to provide quality services?
During competitive solicitation of former clients of Engineer A, the four engineers comprising Firm B cast doubt on Engineer A's ability to provide quality services. The question is whether this conduct violated the prohibition on injuring a colleague's professional reputation, given that the statements were made in a context of direct competitive self-interest and were designed to secure client transfers to Firm B.
Limit all client communications to affirmative representations about Firm B's capabilities, experience, and capacity, refraining entirely from any adverse commentary about Engineer A's ability to provide quality services, regardless of whether such concerns are factually grounded.
When clients raise questions about Engineer A's remaining capacity following the departure of four key engineers, provide honest and factually grounded assessments of Engineer A's reduced staffing and capability, on the ground that clients are entitled to accurate information to make informed decisions about their engineering service providers.
Refrain from volunteering adverse assessments of Engineer A's capacity, but respond honestly and specifically when clients directly ask about the impact of the engineers' departure on Firm A's service quality, treating such direct inquiries as requiring truthful rather than evasive answers.
Should Engineer A, when contacting former clients to reassure them of Firm A's continued capacity, confine his communications to affirmative representations about Firm A's qualifications, or may he also cast doubt on Firm B's ability to provide quality services as part of that reassurance?
Upon learning that Firm B had cast doubt on his ability to provide quality services to former clients, Engineer A contacted those clients to reassure them of Firm A's continued capacity — and in doing so, indicated doubt that Firm B was qualified to provide quality services. The question is whether Engineer A's reactive disparagement of Firm B, framed as defensive client reassurance rather than offensive competitive attack, is ethically distinguishable from Firm B's proactive disparagement, or whether the same prohibition applies symmetrically regardless of the speaker's defensive posture.
Contact former clients to affirm Firm A's continued staffing, capacity, and commitment to their projects, without making any adverse statements about Firm B's qualifications or ability to provide quality services, recognizing that the same prohibition that applies to Firm B's disparagement applies symmetrically to Engineer A.
Counter Firm B's adverse statements about Firm A's capacity by informing clients of Firm B's status as a newly formed firm lacking the established track record, institutional knowledge, and project continuity of Firm A, on the ground that clients are entitled to a complete picture and that Engineer A's defensive response is ethically distinguishable from Firm B's offensive attack.
Confine adverse assessments of Firm B's qualifications exclusively to the formal ethics complaint process rather than communicating them directly to clients, on the ground that the ethics process is the appropriate channel for professional qualification concerns while client communications should be limited to affirmative representations about Firm A.
Should the four engineers be found to have violated their ethical obligations by internally discussing and planning post-departure client solicitation while still employed at Firm A, even though no overt promotional action or client contact occurred before their resignation?
While still employed at Firm A, the four engineers discussed and planned their post-departure strategy, including the possibility of soliciting former clients of Engineer A after leaving. No overt promotional action or client contact occurred before their simultaneous resignation. The question is whether this pre-departure internal planning — without external promotional action — violated the prohibition on promotional efforts or negotiations for work on behalf of a competing practice while still employed, or whether the prohibition's literal boundary protects purely deliberative internal discussion.
Conclude that the four engineers did not violate the Code because the pre-departure promotional prohibition applies only to actual external promotional efforts or negotiations with clients, and internal deliberative planning among prospective co-founders — without client contact — falls outside the prohibition's literal scope.
Conclude that the coordinated simultaneous resignation, planned in advance while the engineers still owed duties to Firm A, constituted a breach of the duty of loyalty that is ethically cognizable independently of any specific promotional act — because the intent to maximize competitive disruption was formed and executed during the employment relationship.
Conclude that pre-departure planning is permissible as a general matter but that the specific coordination of simultaneous departure timed to coincide with a critical operational period for Firm A — if established by evidence — would cross the line from permissible career planning into purposive disruption constituting a loyalty-based violation, and remand for factual development on the timing question.
Should Engineer A file a formal ethics complaint against Firm B for alleged supplanting violations, given that he simultaneously holds no active contracts with the former clients at issue, is himself engaging in disparagement of Firm B's qualifications, and is in an active competitive rivalry with the engineers he is complaining against?
Engineer A filed a formal ethics complaint against the four departing engineers alleging supplanting violations, while simultaneously engaging in the symmetrically equivalent misconduct of disparaging Firm B's qualifications to former clients. The Board ultimately rejected the supplanting allegation and found Engineer A himself in violation for disparagement. The question is whether Engineer A's ethics complaint was itself ethically compromised by his competitive self-interest, and whether the formal ethics process was being instrumentalized as a competitive weapon rather than invoked from disinterested professional concern.
File the ethics complaint against Firm B but affirmatively disclose to the receiving ethics body the competitive relationship between Engineer A and Firm B, the absence of active contracts with the former clients at issue, and the factual basis for the supplanting allegation — allowing the ethics body to assess the complaint's context and the complainant's potential self-interest appropriately.
Decline to file the ethics complaint while simultaneously engaging in disparagement of Firm B's qualifications, recognizing that the concurrent misconduct undermines the integrity of the complaint and that the ethics process should not be invoked by a party who is at the same time committing a symmetrically equivalent violation.
File an ethics complaint limited to Firm B's actual disparagement of Engineer A's qualifications — a violation the Board ultimately confirmed — rather than the supplanting allegation, which rests on a misreading of the supplanting prohibition given the absence of active contracts, thereby grounding the complaint in a factually and legally accurate basis rather than a competitively motivated misapplication of the rule.
Should the specialized knowledge constraint be applied individually — restricting only the specific engineer who holds project-specific knowledge from soliciting that client — or collectively — restricting the entire firm from soliciting any client for whom any one principal holds specialized knowledge?
The Board's ruling permits general client solicitation by Firm B while restricting solicitation tied to specialized project knowledge — but the same four engineers who hold specialized knowledge are also the ones conducting all general solicitation. This creates a boundary problem: when a former client receives a solicitation from engineers who worked on that client's specific projects, the solicitation itself signals insider familiarity regardless of whether confidential details are explicitly invoked. The question is how the specialized knowledge constraint should be operationalized when the soliciting engineers and the knowledge-holding engineers are the same individuals acting as a unified firm.
Treat the specialized knowledge constraint as applying to the entire firm whenever any one principal holds project-specific knowledge about a given client's work, on the ground that a firm-level solicitation is inevitably informed by that knowledge regardless of which engineer makes direct contact — and obtain consent of all interested parties before soliciting any such client.
Restrict only the specific engineer who holds project-specific knowledge from participating in solicitation of that client, while permitting the other Firm B principals — who lack the specialized knowledge — to solicit the same client under the general competition framework, with internal firm protocols ensuring the knowledge-holding engineer is screened from the solicitation process.
Permit firm-level solicitation of all former clients but require that all solicitation communications be confined to publicly available information and make no reference — explicit or implicit — to prior project involvement, insider familiarity, or knowledge of the client's specific technical or strategic priorities, thereby operationalizing the specialized knowledge constraint through a conduct standard rather than a categorical recusal.
Deregulated Advertising Context Ethics Non-Elimination Both Parties
The case arises in a context where advertising restrictions have been substantially relaxed, but the core ethical obligations of non-deception and non-disparagement remain operative.
Deregulated Advertising Context Ethics Non-Elimination Constraint
The deregulated advertising environment for engineering services did not eliminate the ethical obligations of truthfulness and non-deception constraining the content of competitive solicitation communications; both parties remained bound by the prohibition on misleading statements about competitors' qualifications regardless of the permissive legal environment for promotional activity.
NSPE Code truthfulness and non-deception provisions; antitrust and commercial free speech developments
Further, he was told by the clients that Firm B had cast doubt on the ability of A to provide quality services.
Throughout the competitive solicitation period
In his discussions with the former clients Engineer A indicated doubt that Firm B was qualified to provide quality services.
Engineer Departure and Competition Ethics Standard
Four of the key engineering employees of a firm headed by Engineer A left the firm at the same time following disagreement on certain firm policies and promptly organized a new engineering firm, B
Engineer A indicated doubt that Firm B was qualified to provide quality services
Firm B had cast doubt on the ability of A to provide quality services
BER in evaluating both Firm B's conduct and Engineer A's retaliatory statements
Defines the ethical rights and limits applicable when engineers leave a firm to form a competing firm, including the balance between individual initiative, client freedom of choice, and prohibitions on disparaging the former employer to divert clients
Engineer Solicitation and Competition Ethics Standard
In his discussions with the former clients Engineer A indicated doubt that Firm B was qualified to provide quality services
BER in evaluating mutual disparagement conduct by both parties
Prohibits engineers from injuring the reputation of competitors or making false/misleading statements about competitors' qualifications during solicitation of work; applies to both Firm B's disparagement of Firm A and Engineer A's disparagement of Firm B
Engineer A Collegial Non-Harm Competitive Context
Collegial Non-Harm in Competitive Context Capability
Engineer A needed the capability to recognize his collegial obligation to refrain from providing critical opinions about Firm B's qualifications in competitive solicitation contexts, even when motivated by legitimate competitive self-interest in client retention.
Engineer A's disparagement of Firm B's qualifications to former clients constituted a violation of collegial non-harm obligations in the competitive solicitation context.
Engineer A indicated doubt about Firm B's qualifications to former clients, violating collegial non-harm obligations in a competitive context
Engineer A Competitive Motivation Transparency in Protest Filing
Competitive Peer Misconduct Reporting Motivation Transparency Self-Application Capability
Engineer A needed to ensure his ethics protest against Firm B was grounded in professional duty rather than competitive self-interest, and to be transparent about his competitive relationship with Firm B
Engineer A's ethics protest against Firm B was found to be grounded in competitive motivation rather than accurate application of the supplanting rule, raising questions about the transparency and legitimacy of the reporting motivation
Filing an ethics protest alleging supplanting by Firm B while having a direct competitive interest in the outcome — the BER found the protest was not grounded in an accurate reading of the supplanting rule
Engineer A was obligated to ensure that his ethics protest alleging supplanting by Firm B was grounded in an accurate reading of the supplanting rule
We deal first with the question of the application of the supplanting rule (§11(a)) because in this set of circumstances and charges and counter-charges it is most readily resolved.
Engineer A Competitive Protest Motivation Transparency
Engineer A needed the capability to recognize that his ethics protest against Firm B was filed in a context of direct competitive interest — having lost four key engineers and clients to Firm B — and to ensure the protest was grounded in accurate application of the supplanting rule rather than competitive self-interest.
Engineer A's protest of Firm B's conduct required self-assessment of whether the protest was motivated by genuine ethical concern or competitive self-interest, given his direct competitive relationship with Firm B.
Engineer A filed an ethics protest alleging supplanting by Firm B while himself being a direct competitor for the same former clients, requiring transparent acknowledgment of his competitive motivation
Engineer A has protested the action of the four engineers on ethical grounds, alleging that they violated the rule against supplanting.
Engineer A Competitive Self-Interest Contaminated Criticism of Firm B
Engineer A's critical statements about Firm B's capacity were made in the context of competitive solicitation of the same former clients, making the criticism self-interest contaminated and prohibited.
Competitive Self-Interest Critique Prohibition Constraint
Engineer A was prohibited from offering critical evaluative opinions about Firm B's qualifications to former clients when Engineer A was simultaneously competing for those same clients' work, as such criticism was structured to serve competitive advantage rather than objective professional assessment.
NSPE Code Sections III.6 and III.7; BER Case 75-15
During Engineer A's competitive reassurance contacts with former clients
Engineer A Competitor Reputation Injury Disparagement of Firm B
Engineer A, while contacting former clients to reassure them of Firm A's continued capacity, indicated doubt about Firm B's qualifications — constituting the same prohibited disparagement as Firm B's conduct toward Engineer A.
Competitor Reputation Injury Prohibition Constraint
Engineer A was prohibited from indicating doubt about Firm B's qualification to provide quality services when contacting former clients, as such statements constitute an attempt to injure the professional reputation, prospects, and practice of Firm B's engineers in violation of NSPE Code Section III.7.
During Engineer A's post-departure reassurance contacts with former clients
Damage to Engineer A's own professional standing by engaging in retaliatory conduct
Escalation of mutual disparagement conflict
Violation of Section 12 prohibition on injuring another engineer's professional reputation for self-interested reasons
Objective and non-self-interested basis for adverse professional commentary
Professional restraint in competitive communications
Undermine client confidence in Firm B and retain former clients by casting doubt on the new firm's qualifications and service quality
Client communication and relationship management
Knowledge of ethical limits on competitive conduct
During concurrent client outreach, after learning of Firm B's disparaging comments
Obligation to restrict adverse comments to objectively justified, non-self-interested circumstances even when responding to provocation
Section 11 prohibition on competing unfairly through criticism of other engineers
Section 12 prohibition on attempting to injure another engineer's professional reputation, prospects, or practice for self-interested reasons
During his outreach to former clients, Engineer A expressed doubt about Firm B's qualifications and ability to provide quality engineering services, making adverse comments about the newly formed firm to prospective clients.
Engineer A Incumbent Capacity Honest Reassurance
Incumbent Firm Capacity Honest Reassurance Communication Capability
Engineer A needed the capability to contact former clients and honestly reassure them of his firm's continued capacity to provide quality services after the departure of four key engineers, without disparaging the departing engineers or their new firm.
Engineer A's reassurance contacts were partially permissible (affirming own capacity) but crossed into impermissible disparagement (doubting Firm B's qualifications).
Engineer A contacted former clients to indicate his firm was still available and retained capacity to provide proper services, but also impermissibly indicated doubt about Firm B's qualifications
Engineer A was also making contact with the former clients to indicate that his firm was still available for future commissions and retained its capacity to provide proper services despite the departure of the four engineers.
Engineer A Incumbent Firm Honest Reassurance Communication Failure
Engineer A failed to communicate honestly with former clients about Firm A's continued capacity, instead making adverse comments about Firm B's capability that crossed into prohibited disparagement
Engineer A's reassurance communications to former clients crossed the line from permissible honest representation of Firm A's capabilities into prohibited disparagement of Firm B
Contacting former clients with adverse comments about Firm B's qualification to provide quality services, rather than limiting communications to honest, non-disparaging reassurance about Firm A's own continued capacity
Engineer A was obligated to conduct his contacts with former clients to reassure them of Firm A's continued capacity in a manner that was truthful
The charge and counter-charge by both A and B regarding the capability of the other to provide adequate or quality services are both affronts to §12.
Engineer A Mutual Disparagement Non-Excuse Symmetry
Mutual Disparagement Non-Excuse Symmetry Recognition Capability
Engineer A needed the capability to recognize that Firm B's disparagement of him did not excuse or justify his own disparagement of Firm B's qualifications to former clients, and that his non-disparagement obligations applied independently.
Engineer A, having learned of Firm B's disparagement, proceeded to disparage Firm B in return — a symmetrical violation that the non-excuse principle prohibits.
Engineer A disparaged Firm B's qualifications despite having been the victim of Firm B's disparagement, failing to recognize the symmetry of the obligation
Engineer A Mutual Disparagement Non-Excuse Symmetry Recognition Failure
Engineer A failed to recognize that Firm B's disparaging conduct did not excuse his own disparagement of Firm B's capabilities to former clients
The BER found both parties independently in violation, refusing to enter into speculation about who 'threw the first stone' — each party's violation was independent and not excused by the other's conduct
Making adverse comments about Firm B's capability despite (or in response to) Firm B's adverse comments about Engineer A — both parties found independently in violation
We cannot or do not enter into speculation as to which 'threw the first stone.' Both sides were in clear error by indulging in criticisms of the other when, as here, the aspersions were cast purely in terms of attempting to secure a personal benefit
Engineer A Predictive Disparagement of Firm B
Predictive Competitor Incapacity Disparagement Recognition and Avoidance Capability
Engineer A needed the capability to recognize that indicating doubt about Firm B's qualification to provide quality services — when contacting former clients — constituted impermissible disparagement of a competitor's professional reputation.
Engineer A made disparaging representations about Firm B's qualifications to former clients during reassurance contacts, mirroring Firm B's conduct toward him.
Engineer A indicated doubt that Firm B was qualified to provide quality services in discussions with former clients
Engineer A Self-Interest-Tainted Adverse Comment About Firm B Capability §12 Violation
Engineer A made adverse comments about Firm B's capacity to provide adequate or quality services when contacting former clients to reassure them, motivated by competitive self-interest rather than objective professional assessment
Self-Interest-Tainted Adverse Competitor Comment Purposive Prohibition Constraint
Engineer A was prohibited from making adverse comments about Firm B's qualification to provide adequate or quality services to former clients when the purpose of those comments was to secure competitive advantage for Firm A, constituting a violation of §12 under the purposive interpretation from Case 75-15.
NSPE Code of Ethics §12; BER Case 75-15; BER Case 77-8
During competitive solicitation contacts with former clients following departure of four engineers
Engineer A Self-Interest-Tainted Critique Prohibition Violation
Self-Interest-Tainted Competitive Capability Critique Prohibition Self-Application Capability
Engineer A lacked or failed to apply the capability to recognize that his adverse comments about Firm B's capability to former clients were self-interest-tainted and therefore prohibited
Engineer A violated §12 by making adverse comments about Firm B's capability to former clients when motivated by competitive self-interest rather than objective professional concern
Making adverse comments about Firm B's qualification to provide quality services to former clients, motivated by competitive self-interest in client retention — found to violate §12
Engineer A Supplanting Protest Competitive Motivation Non-Weaponization §11(a) Misapplication
Engineer A filed an ethics protest alleging Firm B improperly supplanted him, but the BER found the supplanting rule inapplicable because Engineer A lacked the predicate contract or active negotiation
Competitive Protest Public Safety Grounding Non-Pretextual Basis Constraint
Engineer A was constrained from invoking the supplanting rule as a basis for an ethics protest against Firm B where the predicate conditions (existing contract or active negotiation) were not satisfied, as such use of the supplanting rule would constitute misapplication of the ethics code for competitive rather than legitimate professional purposes.
NSPE Code of Ethics §11(a); BER Case 76-5; BER Case 77-8
We have often held that §11(a) is not to be interpreted to give an engineer or firm a right to prevent other engineers from attempting to serve former clients of other firms.
At the time of filing the ethics protest against Firm B
Under that concept, we take it from the submitted facts that Engineer A did not have an existing contract, nor was he engaged in negotiations for a particular project relative to the contacts made by Firm B with former clients of Engineer A.
Engineer A Supplanting Rule Scope Discrimination
Supplanting Rule Precise Scope Discrimination Capability
Engineer A needed the capability to accurately assess whether Firm B's solicitation of former clients actually met the definition of supplanting before filing an ethics protest, to avoid weaponizing the supplanting rule for competitive purposes.
Engineer A protested Firm B's conduct as supplanting; accurate application of the supplanting rule required recognizing that no active contracts were in place for the solicited clients.
Filing an ethics protest alleging supplanting by Firm B despite the absence of active contracts or specific selection/negotiation with the solicited clients
some former clients of Firm A which had projects under discussion with Firm A, but for which specific selection or negotiation had not taken place
Engineering Business Ethics Competitive Context Awareness Both Parties
Engineering Business Ethics Competitive Context Awareness Capability
Both Engineer A and Firm B needed the capability to recognize that the competitive business context of engineering practice does not suspend professional ethics obligations — including non-disparagement, honest representation, and the supplanting rule — and that business competition must be conducted within the bounds of professional ethics codes.
The competitive dynamics of the case — firm departure, client solicitation, mutual disparagement — all occurred within the professional ethics framework governing engineering business conduct.
Both parties engaged in competitive solicitation of former clients while violating non-disparagement obligations, suggesting insufficient awareness that business competition does not suspend ethical duties
Engineer A and Four Departing Engineers / Firm B
Firm B promptly contacted the former clients of Firm A
Engineer A was also making contact with the former clients
Dispute formally enters professional ethics regulatory domain; all parties now subject to formal scrutiny; Engineer A's own conduct becomes relevant to the proceedings
After parallel outreach efforts and disparagement by both parties
Engineer A's filing of an ethical complaint against the four engineers formally initiated an ethics adjudication process, shifting the dispute from a competitive business conflict into a matter of professional regulatory review.
Filing Ethical Complaint Against Four Engineers
Ethical scrutiny of Engineer A's own conduct during the dispute, including his disparaging comments about Firm B
Possible finding that Engineer A himself violated Section 12, as ultimately occurred in the discussion
Public airing of internal firm conflict damaging to both parties' reputations
Legitimate use of professional ethics enforcement mechanisms
Right and arguably duty under Section 12 to report believed unethical conduct to proper authority
Accountability and enforcement of professional ethical standards
Duty to report unethical conduct under Section 12
Right to seek redress through proper professional channels
Obtain an ethical ruling against the four engineers to vindicate Firm A's position, deter further competitive misconduct by Firm B, and potentially restore client confidence in Firm A
Ability to articulate specific ethical violations
Knowledge of professional ethics code provisions
Understanding of ethics complaint procedures
Post-dispute, after client contacts by both parties
Implicit obligation of clean hands when invoking ethical enforcement against others
Obligation to ensure complaint was not itself motivated primarily by competitive self-interest rather than genuine ethical concern
Engineer A formally filed an ethical complaint against the four engineers of Firm B, alleging violation of the supplanting rule under Section 11(a) and other ethical breaches arising from their client solicitation and disparaging conduct.
Escalation of competitive conflict with Firm B
Potential perception by clients of instability or defensiveness at Firm A
Risk of crossing into prohibited disparagement of Firm B if reassurance included adverse comments
Duty to protect firm's legitimate business interests
Right to communicate with prospective clients about firm capabilities
Right to correct potentially misleading impressions created by Firm B's solicitation
Honest representation of firm capabilities
Legitimate self-promotion and client retention
Preserve Firm A's client relationships and competitive standing by countering the narrative created by Firm B's solicitation and demonstrating continued capability
Business development and retention communication
Knowledge of ethical boundaries in competitive solicitation
Concurrent with Firm B's client outreach, post-departure of four engineers
Obligation to refrain from disparaging competitors except in objectively justified, non-self-interested circumstances
Section 12 prohibition against injuring another engineer's professional reputation, prospects, or practice for self-interested reasons (where adverse comments about Firm B were made)
Engineer A proactively contacted former clients who had also been approached by Firm B to reassure them that Firm A retained its capacity and continued to be available for future commissions despite the departure of the four engineers.
Firm A transitions from stable staffing to understaffed; client trust enters uncertain state; competitive vulnerability created
Immediately upon simultaneous resignation
Upon the simultaneous resignation of four engineers, Firm A's existing and prospective client relationships were immediately destabilized, creating uncertainty about project continuity and service delivery.
Firm B Collegial Non-Harm Competitive Context
Firm B needed the capability to recognize its collegial obligation to refrain from casting doubt on Engineer A's ability to provide quality services when contacting former clients, even in the context of competitive solicitation.
Firm B's disparagement of Engineer A's capacity to former clients constituted a violation of collegial non-harm obligations in the competitive solicitation context.
Firm B cast doubt on Engineer A's ability to provide quality services when contacting former clients, violating collegial non-harm obligations
Firm B Competitor Reputation Injury Disparagement of Engineer A
Clients reported to Engineer A that Firm B had cast doubt on Engineer A's ability to provide quality services during competitive solicitation contacts.
Firm B was prohibited from casting doubt on Engineer A's ability to provide quality services when contacting former clients, as such statements constitute an attempt to injure the professional reputation, prospects, and practice of Engineer A in violation of NSPE Code Section III.7.
During Firm B's post-departure solicitation contacts with former Firm A clients
Firm B Departing Engineer Honest Solicitation Representation
Departing Engineer Client Solicitation Honest Representation Capability
Firm B needed the capability to conduct its solicitation of former clients of Firm A in a manner that was truthful, non-misleading, and did not contain false or disparaging statements about Engineer A's remaining capacity.
Firm B's solicitation contacts were permissible in their competitive purpose but impermissible in their disparaging content regarding Engineer A.
Firm B's solicitation communications included disparaging representations about Engineer A's ability to provide quality services, violating the honest representation obligation
Damage to professional reputation of Firm B if conduct became known in the broader professional community
Escalation of conflict with Engineer A, likely triggering retaliatory disparagement
Honest and non-manipulative client communication
Undermine client confidence in Firm A to increase the likelihood that former clients would transfer their business to Firm B
Knowledge of ethical boundaries regarding competitor disparagement
During client outreach immediately after forming Firm B
Obligation to restrict adverse comments about competitors to objectively justified, non-self-interested circumstances
Section 11 prohibition on competing unfairly by criticizing other engineers
Section 12 prohibition on attempting to injure another engineer's professional reputation, prospects, or practice
During client contacts, Firm B's principals cast doubt on Engineer A's ability to provide quality services following the departure of the four engineers, making adverse comments about Firm A's capabilities to prospective clients.
Firm B Disparages Firm A Capability → Professional Reputation Damage Realized
During client contacts, Firm B's principals cast doubt on Engineer A's ability to provide quality services, and as a result of mutual disparagement by both Firm A and Firm B during client outreach, both parties suffered professional reputation damage
Had either party refrained from disparagement, reputational damage would have been asymmetric or avoided entirely; mutual escalation amplified harm to both
Clients receiving conflicting negative characterizations from both parties
Engineer A responding with counter-disparagement about Firm B
Firm B making negative statements about Firm A's capability to shared clients
Four Departing Engineers (Firm B) and Engineer A (Firm A), shared responsibility
Mutual disparagement by both parties to the same client audience was sufficient to damage the professional reputations of both firms simultaneously
Firm B Engineers Mutual Disparagement Non-Excuse Symmetry Recognition Failure
The four engineers of Firm B failed to recognize that Engineer A's disparaging conduct did not excuse their own disparagement of Engineer A's capabilities to former clients
Making adverse comments about Engineer A's ability to provide quality services despite (or in response to) Engineer A's adverse comments about Firm B — both parties found independently in violation
Firm B Engineers Pre-Departure Internal Discussion Non-Violation §7(a) Literal Reading
Four engineers discussed among themselves the idea of soliciting work from former clients of Engineer A while still employed, but took no overt promotional action during the employment period
Four engineers of Firm B while still employed by Engineer A
Pre-Departure Internal Planning Without Overt Action Non-Violation Constraint
The four engineers' internal discussions about soliciting former clients of Engineer A while still employed did not constitute a violation of §7(a) under a literal reading of the code, because they did not undertake promotional efforts with former clients or engage in negotiations for work while still employed.
NSPE Code of Ethics §7(a); BER Case 77-8
As we understand the facts, however, the four engineers did not undertake the promotional efforts with the former clients of A while in his employ, nor did they engage in negotiations for work while in the employ of A.
Period of employment with Engineer A prior to departure
We may assume that the four engineers possibly discussed among themselves the idea of soliciting work of former clients of A while still in his employ, but under a literal reading of that part of §7(a) that degree of activity would not constitute a violation of the code.
Firm B Engineers Self-Interest-Tainted Adverse Comment About Engineer A Capability §12 Violation
Firm B's engineers made adverse comments about Engineer A's capacity to provide adequate or quality services when contacting former clients, motivated by competitive self-interest rather than objective professional assessment
The four engineers of Firm B were prohibited from making adverse comments about Engineer A's capability to provide adequate or quality services to former clients when the purpose of those comments was to secure competitive advantage for Firm B, constituting a violation of §12 under the purposive interpretation from Case 75-15.
During competitive solicitation of former clients of Engineer A following departure
Firm B Engineers Self-Interest-Tainted Critique Prohibition Violation
The four engineers of Firm B lacked or failed to apply the capability to recognize that their adverse comments about Engineer A's capability to former clients were self-interest-tainted and therefore prohibited
The four engineers of Firm B violated §12 by making adverse comments about Engineer A's capability to former clients when motivated by competitive self-interest rather than objective professional concern
Making adverse comments about Engineer A's ability to provide quality services to former clients, motivated by competitive self-interest in client acquisition — found to violate §12
Firm B Engineers Specialized Knowledge Competitive Restriction Self-Assessment
Departing Employee Specialized Knowledge Competitive Restriction Self-Assessment Capability
One or more of the four engineers who left Engineer A had been involved with former clients on specific projects while employed, triggering the specialized knowledge competitive restriction under §7(a)
The BER found that the latter portion of §7(a) — regarding practice in connection with a specific project for which the employed engineer has gained particular and specialized knowledge — was not clearly resolved and created a constraint on competition for specific projects
Involvement with former clients of Engineer A on specific projects while employed, creating a specialized knowledge constraint on competing for those specific projects without consent
It is not nearly so clear, however, with regard to the latter portion of §7(a), as related to practice in connection with a specific project for which the employed engineer has gained particular and specialized knowledge.
We are told that in some instances one or more of the four engineers who left A had been involved with former clients of A while in his employ, and we interpret that statement of fact to apply to specific projects under consideration at the time.
Firm B Engineers Specialized Project Knowledge Consent Requirement Specific Former Client Projects
Four engineers departed Engineer A's firm and formed Firm B; one or more had been involved with specific former clients of Engineer A on particular projects while employed, creating a §7(a) specialized knowledge constraint on competing for those specific projects
One or more of the four engineers of Firm B who had been involved with specific former clients of Engineer A on particular projects while employed
Employed Engineer Specialized Project Knowledge Consent-Required Competition Constraint
Those engineers of Firm B who had gained particular and specialized knowledge in connection with specific projects for Engineer A's clients while employed by Engineer A were constrained from engaging in promotional efforts or negotiations for work on those specific projects without the consent of all interested parties.
Post-departure from Engineer A's firm; applicable to specific projects for which specialized knowledge was gained during employment
Firm B Former Employer Capacity Predictive Disparagement
The four departed engineers, having caused the staffing reduction at Firm A, then used that staffing change as a basis for casting doubt on Firm A's remaining capacity — a particularly aggravated form of predictive disparagement.
Former Employer Capacity Predictive Disparagement Prohibition Constraint
Firm B was prohibited from making predictive representations to former Firm A clients that Engineer A would be unable to provide quality services following the departure of the four engineers, particularly given that the departing engineers themselves caused the staffing change they were using as the basis for the capacity doubt.
During Firm B's post-departure solicitation contacts
Firm B Improper Competitive Method Disparagement Prohibition
Firm B's casting of doubt on Engineer A's capacity during client solicitation contacts constitutes an improper competitive method prohibited by the ethics code.
Improper Competitive Method Prohibition Constraint
Firm B was prohibited from attempting to obtain engineering assignments from former Firm A clients through the improper method of casting doubt on Engineer A's ability to provide quality services, as this constitutes obtaining competitive advantage through means other than demonstrated merit.
Firm B Mutual Disparagement Non-Excuse Symmetry
Firm B needed the capability to recognize that its own non-disparagement obligations applied independently of whether Engineer A was also disparaging Firm B, and that Engineer A's conduct did not excuse Firm B's disparagement of Engineer A.
Both parties engaged in mutual disparagement; each was independently obligated to refrain regardless of the other's conduct.
Firm B's disparagement of Engineer A's capacity occurred independently of and was not excused by Engineer A's reciprocal disparagement of Firm B
he was told by the clients that Firm B had cast doubt on the ability of A to provide quality services.
Firm B No-Compete Absence Ethical Obligation Persistence
No-Compete Agreement Absence Ethical Obligation Persistence Recognition Capability
The four departing engineers needed the capability to recognize that the absence of a formal no-compete agreement with Firm A did not eliminate their ethical obligations regarding honest representation, non-disparagement, and specialized knowledge restrictions when soliciting former clients.
No no-compete agreement is mentioned; the ethical obligations regarding non-disparagement and specialized knowledge restrictions applied independently of any contractual constraint.
The departing engineers proceeded to solicit former clients and disparage Engineer A, apparently treating the absence of contractual restrictions as eliminating ethical constraints
Firm B Predictive Disparagement of Engineer A
Firm B needed the capability to recognize that casting doubt on Engineer A's ability to provide quality services — based on the departure of the four engineers — constituted impermissible predictive disparagement of a competitor's professional reputation.
Firm B made disparaging representations about Engineer A's remaining capacity to former clients during competitive solicitation contacts.
Firm B cast doubt on Engineer A's ability to provide quality services when contacting former clients, as reported to Engineer A by those clients
he was told by the clients that Firm B had cast doubt on the ability of A to provide quality services
Firm B Specialized Knowledge Former Client Competitive Restriction
One or more of the four departing engineers needed the capability to self-assess whether their involvement with specific former clients of Engineer A while employed at Firm A created specialized knowledge that ethically restricted their ability to compete for those specific clients without consent.
The case specifically notes that in some instances one or more of the four engineers had been involved with the former clients of Engineer A while in his employ, raising the specialized knowledge restriction question.
One or more of the four engineers had been involved with former clients of Engineer A while in his employ and subsequently solicited those same clients for Firm B
One or more of the Four Departing Engineers / Firm B
In some instances one or more of the four engineers had been involved with the former clients of Engineer A while in his employ.
Firm B Specialized Knowledge Former Client Project Solicitation Restriction
In some instances one or more of the four engineers had been involved with the former clients of Engineer A while in his employ, creating a specialized knowledge restriction on competition for those specific projects.
Firm B engineers who had project-specific involvement with former Firm A clients
Specialized Knowledge Post-Departure Competition Restriction Constraint
Those engineers of Firm B who had been involved with specific former clients of Engineer A on particular projects while employed at Firm A were restricted from competing for those specific projects using the specialized knowledge gained during that employment, though they were not prohibited from competing generally for other work from those clients.
NSPE BER Case 77-11; NSPE Code faithful agent provisions
Post-departure competitive solicitation period
Firm B Supplanting Rule Non-Application Former Clients No Contract No Negotiation
Engineer A alleged that Firm B improperly supplanted him with former clients; the BER found the supplanting rule inapplicable because Engineer A had no existing contract and was not in active negotiation for specific projects
Pre-Award Prospective Client Supplanting Rule Non-Application Constraint
The supplanting rule under §11(a) did not apply to Firm B's solicitation of Engineer A's former clients because Engineer A had neither an existing contract nor was engaged in active negotiations for particular projects with those clients at the time of Firm B's contacts.
NSPE Code of Ethics §11(a); BER Case 76-5; BER Cases 62-10, 62-18, 64-9, 73-7; BER Case 77-8
At the time of Firm B's solicitation contacts with former clients of Engineer A
To that extent, and under those facts, the four engineers of Firm B had a right to seek assignments from the former clients of Engineer A.
Firm B Supplanting Rule Non-Application Pre-Award Clients
Engineer A alleged that Firm B violated the supplanting rule by contacting former Firm A clients; the constraint establishes that the rule does not apply where no contract or active negotiation existed.
Firm B's solicitation of former Firm A clients for whom no contract or specific selection/negotiation was underway did not constitute a violation of the supplanting rule, because the predicate conditions for that rule — an existing contract or active negotiation — were not satisfied.
NSPE BER Case 76-5; NSPE Code Section II.5 (supplanting provision)
Firm B promptly contacted the former clients of Firm A, including some former clients of Firm A which had projects under discussion with Firm A, but for which specific selection or negotiation had not taken place.
At the time of Firm B's post-departure client contacts
Firm B Supplanting Rule Scope Discrimination
Firm B needed the capability to correctly determine that soliciting former clients of Firm A for whom no active contract or specific selection/negotiation was underway did not constitute impermissible supplanting under professional ethics codes.
Firm B contacted former clients of Firm A promptly after formation; Engineer A protested alleging supplanting; the ethical analysis required precise discrimination of the supplanting rule's scope.
Solicitation of former clients of Firm A, including those with projects under discussion but for which no specific selection or negotiation had taken place
Firm B contacting former clients overlaps Engineer A contacting former clients
While Firm B was making these contacts to indicate the availability of the new firm for assignments from the former clients, Engineer A was also making contact with the former clients
Entity1 starts before Entity2 and ends during Entity2
First Stone Non-Determinative Both Parties §12 Symmetric Violation No Excuse
Following a contentious 'divorce' between Engineer A and four departing engineers, both parties engaged in mutual disparagement of the other's capacity; the BER refused to determine who threw the first stone and found both parties in violation
First-Stone Non-Determinative Mutual Disparagement Symmetric Violation Constraint
Neither Engineer A nor the four engineers of Firm B could invoke the other's prior disparaging conduct as a justification or excuse for their own §12 violation; the BER declined to adjudicate who initiated the exchange, finding both parties independently in clear error.
Throughout the competitive solicitation dispute following departure of four engineers
It is easy to understand that in such a case where the 'divorce' of A and the four engineers was on a note of disagreement, each interest felt compelled to react to the other's claims or statements.
Potential ethical scrutiny regarding use of knowledge and relationships developed while employed at Firm A
Legal and professional right to form an independent engineering firm
Right to compete freely in the engineering marketplace after departure
Establish an independent engineering firm capable of competing directly with Firm A for clients and projects
Obligation to avoid exploiting confidential information from prior employment
Potential violation of spirit of Section 7(a) regarding use of specialized project knowledge gained during employment
Business formation and management skills
Engineering expertise sufficient to operate an independent firm
The four departing engineers chose to organize Firm B as principals immediately after leaving Firm A, establishing a direct competitive entity in the same market rather than joining existing firms or pursuing non-competing employment.
Formation of Competing Firm → Competitive Market Conflict Emerges
The formation of Firm B by the four departing engineers created a direct competitive conflict with Firm A
Had engineers joined a non-competing firm or operated in a different market segment, direct competitive conflict with Firm A would not have emerged
Engineers choosing to operate in the same market and service domain as Firm A
Immediate formation of Firm B without a cooling-off period
Use of relationships and knowledge developed at Firm A
Formation of a directly competing firm by former employees with shared client knowledge was sufficient to create competitive conflict
Clients shift from passive recipients of engineering services to active decision-makers being courted by competing parties; ethical scrutiny of solicitation methods intensifies
Shortly after Firm B formation, concurrent with Firm A reassurance outreach
Former clients of Firm A, including those with projects under discussion but without formal contracts, became aware that both Firm A and Firm B were actively competing for their business, placing them in the middle of a professional dispute.
Former Clients of Engineer A Stakeholder
{'relationship': 'Former clients of Engineer A with no current active contract', 'status': 'Targets of competitive solicitation by both parties'}
Former clients of Engineer A who had no active contract with Engineer A at the time of solicitation and were contacted by both Engineer A and Firm B's engineers, receiving disparaging statements about each party from the other.
{'type': 'former_client_of', 'target': 'Engineer A'}
{'type': 'solicited_by', 'target': 'Engineer A'}
{'type': 'solicited_by', 'target': 'Firm B Engineers'}
the four engineers of Firm B had a right to seek assignments from the former clients of Engineer A
Engineer A did not have an existing contract, nor was he engaged in negotiations for a particular project relative to the contacts made by Firm B with former clients of Engineer A
{'relationship_status': 'Former clients; some with pending projects under discussion', 'role_in_case': 'Recipients of competing solicitations and disparaging communications'}
Former clients of Firm A, some with projects under active discussion, who were contacted by both Firm B (with disparaging remarks about Firm A) and Engineer A (with disparaging remarks about Firm B), and who relayed Firm B's disparaging statements back to Engineer A.
{'type': 'contacted_by', 'target': 'Engineer A'}
{'type': 'former_client_of', 'target': 'Firm A / Engineer A'}
{'type': 'solicited_by', 'target': 'Firm B / Four Departing Engineers'}
Engineering Services Client Targeted by Competitor Disparagement
Firm B promptly contacted the former clients of Firm A, including some former clients of Firm A which had projects under discussion with Firm A
Four Departing Engineers At-Will Departure Non-Violation Recognition
At-Will Departure Simultaneous Group Competitive Formation Non-Violation Recognition Capability
The four departing engineers correctly exercised their right to simultaneously depart and form a competing firm, conduct found not to constitute an ethical violation in itself
The BER found that the simultaneous departure and formation of a competing firm did not in itself constitute an ethical violation, consistent with at-will employment and free enterprise principles
Simultaneous voluntary departure from Firm A following policy disagreements and immediate co-founding of Firm B — conduct found permissible under at-will employment and free enterprise principles
the four engineers did not undertake the promotional efforts with the former clients of A while in his employ, nor did they engage in negotiations for work while in the employ of A
Four Departing Engineers At-Will Group Formation Non-Violation
The four departing engineers needed the capability to recognize that their simultaneous departure from Firm A following policy disagreements and immediate formation of Firm B did not in itself constitute an ethical violation, provided their subsequent conduct complied with non-disparagement, non-supplanting, and confidentiality obligations.
The simultaneous coordinated departure and immediate competitive firm formation was the predicate act that Engineer A protested; recognizing its permissibility was essential to correct ethical analysis.
Four engineers simultaneously departed Firm A following policy disagreements and immediately co-founded Firm B as a competing firm
Four of the key engineering employees of a firm headed by Engineer A left the firm at the same time following disagreement on certain firm policies and promptly organized a new engineering firm, B, with the four engineers as the principals.
Four Departing Engineers Pre-Departure Discussion Non-Violation Recognition
Pre-Departure Internal Solicitation Discussion Non-Violation Recognition Capability
The four departing engineers' internal discussions about soliciting former clients while still employed did not constitute a violation, and the BER recognized this distinction
The BER found that internal pre-departure discussions about future solicitation, without actual promotional efforts or negotiations with clients, did not violate the code
Internal discussions among the four engineers about soliciting former clients of Engineer A while still employed — found not to constitute a violation under a literal reading of §7(a)
Four Departing Engineers Supplanting Rule Scope Discrimination
The four departing engineers correctly (by outcome) solicited former clients of Engineer A where no active contract or negotiation existed, consistent with the supplanting rule's scope
The BER found that the four engineers of Firm B had a right to seek assignments from former clients of Engineer A because no active contract or negotiation existed
Solicitation of former clients of Engineer A for whom no active contract or specific selection/negotiation was underway — conduct found permissible under the supplanting rule
Four Engineers At-Will Departure Firm B Formation Non-Ethical-Violation Recognition
Four key engineers departed Engineer A's firm following policy disagreements and formed Firm B; no written non-compete agreement governed their post-departure conduct
Four engineers who departed Engineer A's firm to form Firm B
No-Written-Non-Compete Post-Departure Competitive Solicitation Permissibility Constraint
In the absence of a written non-compete agreement, the four engineers' voluntary departure from Engineer A's firm following policy disagreements and their formation of Firm B did not constitute an ethics violation, and their subsequent solicitation of former clients (for whom no contract or active negotiation existed) was permissible under the free and open competition framework.
NSPE Code of Ethics §7(a), §11(a); BER Case 77-8
Free and Open Competition Framework Governing Firm A Firm B Competition
The legal and ethical framework governing competitive conduct between Firm A and Firm B in soliciting former clients establishes that free and open competition is a basic rule that constrains how the ethics code is applied to post-departure solicitation.
Free and Open Competition Regulatory Deference Constraint
Both Firm A and Firm B were required to conduct their competitive solicitation activities in conformance with the free and open competition framework governing engineering services, which permits post-departure solicitation of former clients absent contractual restrictions, and which the BER is not positioned to override.
Local, state, and federal laws and regulations governing free and open competition; NSPE Code
Engineer A was also making contact with the former clients to indicate that his firm was still available for future commissions
Professional dispute escalates from competitive to adversarial; both parties now potentially in violation of professional conduct codes; client trust in both firms damaged
Concurrent with parallel client outreach efforts by both parties
Both Firm B engineers and Engineer A made disparaging remarks about the other party's ability to provide quality services during their respective client outreach efforts, violating professional conduct norms against denigrating competitors.
Mutual Disparagement Incident → Ethical Complaint Formally Triggered
Engineer A formally filed an ethical complaint against the four engineers of Firm B, alleging violations, following the pattern of competitive misconduct including disparagement and improper solicitation
Had Firm B limited solicitation to ethically permissible conduct and refrained from disparagement, Engineer A would have had weaker grounds and potentially less motivation to file a formal complaint
Engineer A's awareness of specific ethical violations committed by Firm B
Engineer A's decision to escalate the dispute through formal professional channels
Firm B's conduct (solicitation using confidential knowledge, disparagement) providing grounds for an ethical complaint
Engineer A (filing decision) with contributing responsibility from Four Departing Engineers (predicate conduct)
Firm B's solicitation using specific project knowledge combined with disparagement of Firm A gave Engineer A sufficient grounds and motivation to file a formal ethics complaint
Mutual Disparagement Symmetry Non-Excuse Both Parties
Both Engineer A and Firm B engaged in mutual disparagement of each other's capacity to former clients; the constraint establishes that neither party's violation excuses the other's.
Engineer A and Firm B (four departing engineers)
Mutual Disparagement Symmetry Non-Excuse Constraint
Neither Engineer A nor Firm B could invoke the other party's disparaging conduct as a justification or excuse for its own disparagement; each party was independently and fully bound by the prohibition on injuring the other's professional reputation regardless of the other's conduct.
Throughout the competitive solicitation period following Firm B's formation
National Society of Professional Engineers
Engineer A (in protest), Firm B engineers, BER in analysis
Governs the ethical obligations of engineers when leaving a firm, soliciting former clients, and making statements about competitors' qualifications; provides the rule against supplanting and prohibitions on disparaging competitors
NSPE Code of Ethics – Section 11: Unfair Competition
The Engineer will not compete unfairly with another engineer by attempting to obtain employment or advancement or professional engagements by competitive bidding, by taking advantage of a salaried position, by criticizing other engineers, or by other improper or questionable methods.
NSPE Board of Ethical Review in framing the competitive conduct of both parties
Establishes the general prohibition against competing unfairly by criticizing other engineers or using improper methods to obtain employment or advancement
NSPE Code of Ethics – Section 11(a): Supplanting Rule
The Engineer will not attempt to supplant another engineer in a particular employment after becoming aware that definite steps have been taken toward the other's employment.
NSPE Board of Ethical Review in resolving the supplanting charge against Firm B
Primary provision analyzed to determine whether Firm B's engineers improperly attempted to supplant Engineer A in particular employment; interpreted to require an existing contract or active negotiation before the supplanting prohibition applies
NSPE Code of Ethics – Section 12: Prohibition on Injuring Another Engineer's Reputation
The Engineer will not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of another engineer, nor will he indiscriminately criticize another engineer's work.
NSPE Board of Ethical Review in finding both parties in violation for self-interested criticism
Applied to the mutual disparagement and criticism exchanged by Engineer A and Firm B's engineers regarding each other's capability to provide adequate or quality services
NSPE Code of Ethics – Section 7(a): Promotional Efforts and Negotiations While Employed
A more difficult aspect of the case is the application of §7(a) with regard to the promotional efforts of the four former employees of A.
While in the employ of others, he will not enter promotional efforts or negotiations for work or make arrangements for other employment as a principal or to practice in connection with a specific project for which he has gained particular and specialized knowledge without the consent of all interested parties.
NSPE Board of Ethical Review in analyzing conduct of the four departing engineers
Governs whether the four former employees of Engineer A violated the code by engaging in promotional efforts or negotiations for work with former clients while still employed by A, and whether specialized project knowledge was improperly exploited
No Written Non-Compete Agreement Governing Departed Engineers
Presumed active throughout — no non-compete is referenced in the case facts
Four of the key engineering employees of a firm headed by Engineer A left the firm at the same time following disagreement on certain firm policies and promptly organized a new engineering firm
Absence of any contractual restriction on the four departed engineers' post-employment competitive activities
Departure of four engineers without any contractual non-compete restriction being invoked or referenced
No Written Non-Compete Post-Departure Solicitation Permissibility Firm B
No written non-compete agreement governed the four departed engineers' post-employment competitive activities, making their general solicitation of former clients permissible under the free and open competition framework.
In the absence of any written non-compete agreement or contractual restriction, Firm B's post-departure solicitation of former Firm A clients (where no active contract or negotiation existed) was not ethically prohibited, subject to the constraints against disparagement and specialized knowledge exploitation.
NSPE Code free and open competition provisions; BER Case 76-5
Non-Principal Employee Departure Mitigating Factor Assessment Firm B
The four engineers were key employees but not principals of Firm A; their non-principal status is relevant to calibrating the ethical obligations owed to the former firm regarding goodwill preservation.
Four departing engineers (Firm B principals)
Non-Principal Employee Departure Competitive Conduct Proportionality Constraint
The four departed engineers' status as employees (not principals or partners) of Firm A prior to departure was a relevant mitigating factor in assessing the ethical permissibility of their post-departure competitive conduct, though it did not exempt them from the prohibitions on disparagement and specialized knowledge exploitation.
NSPE BER precedent on organizational role and ethical calibration
Assessment of post-departure competitive conduct
Non-Principal Employee Departure Status of Four Engineers
Relevant throughout the ethical evaluation of their post-departure competitive conduct
Four of the key engineering employees of a firm headed by Engineer A left the firm at the same time
Non-Principal Employee Departure Mitigating Status State
The four departed engineers' status as employees (not principals or partners) of Firm A prior to departure
Not applicable — historical status relevant to ethical evaluation
Departure of four key employees — not partners or co-owners — from Firm A
Post-Employment Client Solicitation Ethics Standard
Firm B promptly contacted the former clients of Firm A, including some former clients of Firm A which had projects under discussion with Firm A, but for which specific selection or negotiation had not taken place
BER in evaluating Engineer A's protest and Firm B's conduct
Governs whether Firm B's prompt contact with Firm A's former clients — including those with projects under discussion — constitutes unethical supplanting or permissible competition after departure
Pre-Award Prospective Client Status for Projects Under Discussion
At the time of Firm B's formation and initial client contacts
Former clients of Firm A with projects under discussion
Pre-Award Prospective Client Competitive Solicitation State
Former Firm A clients who had projects under discussion with Firm A but for whom no formal selection or negotiation had occurred
Formal selection or negotiation commencing with one of the competing firms
Firm B's contact with former Firm A clients whose projects were in preliminary discussion stage only
Pre-Departure Client Solicitation Discussion
Risk of violating Section 7(a) if discussions crossed into active promotional efforts or negotiations
Use of insider knowledge about Firm A's client relationships to gain competitive advantage
Technically remained within literal bounds of Section 7(a) by not engaging in formal promotional efforts or negotiations while employed
Transparency with employer regarding conflicts of interest
Plan post-departure business development strategy targeting Firm A's client base
Knowledge of ethical boundaries during employment transitions
Understanding of Section 7(a) obligations
While still employed at Firm A, prior to resignation
Duty of loyalty to employer not to plan competitive actions using confidential client knowledge gained during employment
Spirit of Section 7(a) prohibiting arrangements for other employment without consent of all interested parties
While still employed at Firm A, the four engineers allegedly discussed among themselves the idea of soliciting former clients of Firm A after departure, though no formal promotional efforts or negotiations were initiated at this stage.
Pre-Departure Client Solicitation Discussion → Former Client Solicitation Exposure
While still employed at Firm A, the four engineers allegedly discussed among themselves the idea of soliciting former clients, which preceded and enabled the subsequent solicitation exposure experienced by those clients
Without pre-departure planning and use of insider knowledge, post-departure solicitation would have been less targeted and less immediately effective
Discussion and planning of solicitation strategy while still employed
Engineers' access to confidential client lists and project information during employment
Intent to form a competing firm prior to resignation
Pre-departure planning combined with insider client knowledge and coordinated resignation created sufficient conditions for systematic post-departure solicitation
Pre-Departure Internal Planning Non-Violation Four Engineers
The four engineers planned their competitive firm formation and post-departure solicitation strategy while still employed, but did not take overt promotional action during the employment period — a distinction relevant to the faithful agent analysis.
The four engineers' internal discussions about soliciting former clients while still employed by Engineer A, without taking overt promotional action during the employment period, did not constitute a violation of the faithful agent duty or any other ethics code provision.
NSPE Code faithful agent provisions; BER precedent on at-will departure rights
During the period of employment prior to departure
Both firms' reputations degraded in the eyes of shared clients; profession's public image harmed; ethics adjudication now must address reputational harm as part of its analysis
Following mutual disparagement during parallel client outreach
As a result of mutual disparagement by both Firm A and Firm B during client outreach, both parties suffered damage to their professional reputations, reducing client confidence in both firms and harming the broader profession's public image.
Professional Solicitation Misleading Language Avoidance Both Parties
Both parties made statements to former clients about the other's qualifications that were not grounded in objective professional assessment, violating the requirement that solicitation communications avoid misleading language.
Professional Solicitation Misleading Language Avoidance Constraint
Both Engineer A and Firm B were required to ensure that their competitive solicitation communications with former clients avoided misleading, deceptive, and untruthful language — including statements casting doubt on the other party's qualifications that were not grounded in objective professional assessment.
NSPE Code provisions on truthfulness, competence, and non-deceptive solicitation
Prospective Client Opportunity Lost to Firm A
Prospective Firm A projects become contested; supplanting analysis triggered; insider knowledge use becomes central ethical question
During Firm B solicitation of former clients
Clients who had projects under discussion with Firm A but for which no formal selection had begun were exposed to competing solicitation by Firm B, creating a risk that Firm A would lose prospective business it had not yet formally secured.
Did the four engineers who founded Firm B violate the Code of Ethics by seeking work from former clients of Engineer A?
Did the four departing engineers violate any ethical obligation by coordinating their simultaneous resignation as a group, given that the coordinated departure itself—regardless of subsequent solicitation—may have been designed to maximize disruption to Firm A's operational capacity?
Did the four engineers engage in any ethical violation by discussing and planning their post-departure client solicitation strategy while still employed by Engineer A, even if no overt promotional action was taken prior to departure?
What ethical obligations, if any, did the four departing engineers owe to clients of Firm A with whom they had developed personal professional relationships during their employment, particularly with respect to transparency about the reasons for their departure and the nature of their new firm?
Should the Board have examined whether Engineer A's formal ethical complaint against the four engineers was itself ethically compromised by his competitive self-interest, given that the complaint was filed in the context of an active business rivalry rather than a disinterested concern for professional standards?
Did the four engineers comprising Firm B act unethically in casting doubt on the ability of Engineer A to provide quality services?
Does the principle of Free and Open Competition—which permits Firm B to solicit former clients of Engineer A—conflict with the Specialized Knowledge Constraint that restricts Firm B from leveraging confidential project knowledge gained during employment, and how should the boundary between permissible competitive solicitation and impermissible knowledge exploitation be drawn when the same engineers who hold specialized knowledge are also the ones conducting the solicitation?
Does the principle of Competitive Employment Freedom—affirming the right of the four engineers to depart and form a competing firm—conflict with the Prohibition on Reputation Injury when the very act of soliciting former clients necessarily involves implicit or explicit comparisons that may cast doubt on Engineer A's remaining capacity, and can competitive solicitation ever be fully separated from reputational impact on the incumbent firm?
Does the Honesty Obligation in Competitive Solicitation Communications conflict with the Self-Interest-Tainted Adverse Critique Prohibition when an engineer possesses genuinely held, factually grounded concerns about a competitor's capacity—concerns that also happen to serve that engineer's competitive interest—and if so, is there any standard by which objectively true but competitively motivated statements about a rival's qualifications can be made without ethical violation?
Does the principle of Mutual Competitive Disparagement Symmetry—applied equally to both Engineer A and Firm B—conflict with the At-Will Employment Symmetry principle when Engineer A's disparagement of Firm B is framed as a defensive reassurance to existing clients rather than an offensive competitive attack, and should the ethical analysis distinguish between proactive disparagement and reactive capacity reassurance even when both produce reputational harm to the other party?
Did Engineer A act unethically in casting doubt on the ability of Firm B to provide quality services?
From a deontological perspective, did the four departing engineers fulfill their duty of loyalty to Engineer A by internally discussing client solicitation plans before formally resigning, even if no overt promotional action was taken prior to departure?
From a deontological perspective, does the duty to avoid injuring a colleague's professional reputation impose a categorical prohibition on capability disparagement during competitive solicitation, or does it permit objectively grounded adverse commentary when the competing firm's qualifications are genuinely in question?
From a consequentialist perspective, did the Board's asymmetric ruling — permitting general client solicitation by Firm B while restricting solicitation tied to specialized project knowledge — produce the best overall outcome for clients, the profession, and competitive market efficiency, compared to a blanket prohibition or blanket permission?
From a virtue ethics perspective, did Engineer A demonstrate professional integrity when he simultaneously protested the departing engineers' conduct on ethical grounds while himself engaging in the symmetrically equivalent misconduct of disparaging Firm B's qualifications to former clients?
Would the Board have found an ethical violation in Firm B's general client solicitation if a written non-compete agreement had been in place between the four engineers and Engineer A at the time of their departure?
Would the ethical outcome for Firm B's solicitation of clients with projects under discussion have differed if formal selection or negotiation had already commenced between those clients and Engineer A at the time Firm B made contact?
Would Engineer A's disparagement of Firm B's qualifications have been considered ethically permissible if his statements had been objectively verifiable and not motivated by competitive self-interest — for example, if Firm B demonstrably lacked the technical capacity to complete a specific project type?
Would the Board's ruling on specialized knowledge solicitation have extended to all former clients of Engineer A if only one of the four departing engineers — rather than all four collectively — had possessed prior project-specific knowledge about a given client's work?
Solicitation Using Specific Project Knowledge
Breach of confidentiality obligations to Firm A and its clients
Competitive disadvantage imposed on Firm A through use of insider project knowledge
Violation of Section 7(a) by practicing in connection with specific projects using knowledge gained during employment without consent
Fidelity to former employer's confidential information
Respect for client relationships established through prior employment
Leverage prior project involvement and specialized knowledge to position Firm B as a credible and experienced alternative for specific ongoing or prospective projects
Knowledge of specific project requirements gained during employment at Firm A
Technical expertise in the relevant engineering domains
Promptly after forming Firm B, during client outreach
Duty of confidentiality regarding project-specific information obtained during employment
Obligation not to exploit former employer's proprietary project knowledge for competitive gain
Section 7(a) prohibition on practicing in connection with a specific project for which the engineer has gained particular and specialized knowledge without consent of all interested parties
In some instances, one or more of the four engineers contacted former clients of Firm A regarding specific projects on which they had gained particular and specialized knowledge while employed at Firm A, without obtaining consent from all interested parties.
Solicitation Using Specific Project Knowledge → Prospective Client Opportunity Lost to Firm A
In some instances, one or more of the four engineers contacted former clients of Firm A regarding specific projects, and clients who had projects under discussion with Firm A but for which no formal selection had begun were lost to Firm A
Without use of specific project knowledge, Firm B's solicitation would have been generic and less persuasive; prospective clients might have remained with Firm A
Clients not yet formally contracted with Firm A, leaving them open to switching
Engineers' possession of confidential project-specific knowledge from their time at Firm A
Targeted outreach leveraging specific project details to demonstrate insider familiarity
Four Departing Engineers (individually and collectively)
Use of specific project knowledge to contact prospective clients not yet under contract, combined with a credible competing offer, was sufficient to divert those clients from Firm A
Solicitation of Former Clients Without Active Contracts
Disruption of Firm A's prospective client pipeline
Perception by Engineer A that supplanting was occurring
Potential violation of Section 7(a) where specific project knowledge was involved
Right to compete freely for uncontracted work
Right to solicit clients where no contract or definite selection steps had been taken (Section 11(a) supplanting rule not triggered)
Secure engineering assignments from Firm A's former client base by positioning Firm B as an available and capable alternative
Business development in engineering services
Knowledge of ethical solicitation boundaries
Promptly after forming Firm B, post-departure
Obligation not to exploit confidential project-specific knowledge obtained while employed at Firm A
Section 7(a) prohibition on practicing in connection with specific projects for which specialized knowledge was gained during employment, without consent
Firm B promptly contacted former clients of Firm A, including those with projects under discussion but for which no formal selection or negotiation had taken place, to solicit new business assignments for the newly formed firm.
Voluntary Non-Solicitation Period Absent in Firm B Transition
Immediate solicitation of Firm A former clients upon formation of Firm B
At-Will Employment Symmetry and Engineer Mobility Right
Free and Open Competition as Engineering Ethics Boundary Condition
Firm B's prompt solicitation of Firm A's former clients immediately upon formation, without any voluntary restraint period, is evaluated against the principle that a higher standard of professional conduct would involve refraining from such solicitation for a reasonable transition period
While not ethically required absent a contractual no-compete, the immediate solicitation without any transition period falls below the aspirational standard of professional integrity; the ethical minimum is met but the higher standard of conduct is not
Four Departing Engineers Firm B Principals
Voluntary Non-Solicitation Period as Ethical Transition Practice
The voluntary restraint principle is aspirational rather than mandatory; Firm B's conduct is not a clear ethical violation on this ground alone, but it is noted as falling short of the highest professional standard
client outreach and disparaging remarks by both parties before ethical complaint filed by Engineer A
Engineer A has protested the action of the four engineers on ethical grounds, alleging that they violated the rule against supplanting. Further, he was told by the clients that Firm B had cast doubt on the ability of A to provide quality services.
client outreach and disparaging remarks by both parties
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.78
The literal reading of the code provision preserves engineer mobility and freedom of thought while still prohibiting actual competitive solicitation during employment
source_field=tensionresolution; confidence=0.89
Departure right is affirmed; ethical scrutiny is redirected to the manner of post-departure competitive conduct, particularly disparagement and specialized knowledge exploitation
source_field=tensionresolution; confidence=0.82
The prohibition on competitive reputation injury overrides any claimed duty of candor to clients about competitor capability when the critic stands to benefit; candor obligations are served through honest self-promotion, not competitor denigration
source_field=tensionresolution; confidence=0.88
Honesty and the disparagement prohibition are mutually reinforcing; both require that competitive communications be factually grounded and not designed to create false impressions about competitor capability
source_field=tensionresolution; confidence=0.91
The prohibition applies symmetrically; Engineer A's ethical recourse is to file a formal complaint, not to engage in retaliatory disparagement of Firm B's capabilities
source_field=tensionresolution; confidence=0.9
The self-interest motivation test resolves the tension between permissible objective critique and prohibited competitive disparagement; objectivity and absence of self-interest are prerequisites for permissible adverse commentary
source_field=tensionresolution; confidence=0.87
The supplanting allegation by Engineer A fails with respect to clients who had no active contract; it may have merit with respect to clients where specialized knowledge was involved or where active negotiation had begun
source_field=tensionresolution; confidence=0.84
source_field=tensionresolution; confidence=0.86
source_field=tensionresolution; confidence=0.93
The general freedom to compete post-departure yields to the specialized knowledge constraint on a project-by-project basis; the constraint is not a blanket non-compete but a targeted protection for specific project knowledge
Free and open competition prevails where no active contractual or negotiation relationship exists; the supplanting rule does not create a proprietary right over former clients
Where a departing engineer gained particular and specialized knowledge about a client's project while employed, soliciting that client for the same or similar work without consent of the former employer or client constitutes an ethical violation distinct from general competitive solicitation
source_field=tensionresolution; confidence=0.92
Free competition prevails for uncontracted former clients; the specialized knowledge constraint operates as a targeted exception rather than a general limitation on competitive solicitation
source_field=tensionresolution; confidence=0.8
Even truthful concerns about a competitor's capability may not be volunteered in solicitation contexts where the engineer stands to benefit; the appropriate channel for genuine competence concerns is formal complaint, not client-directed disparagement
The freedom to compete is affirmed; the specialized knowledge constraint applies as a specific carve-out for project-specific knowledge, not as a general prohibition on competition
The specialized knowledge constraint narrows but does not eliminate competitive freedom; it applies only to project-specific knowledge, not general professional competence acquired during employment
source_field=tensionresolution; confidence=0.83
The symmetry principle forecloses any tu quoque defense; both parties bear independent ethical obligations that are not discharged by the other's breach
source_field=tensionresolution; confidence=0.85
Both parties violated the same prohibition; the appropriate resolution is that both are found to have acted unethically with respect to disparagement, independent of the separate question of whether Firm B's solicitation itself was permissible
The purposive interpretation expands the scope of the prohibition beyond literal malice or falsity, ensuring that technically accurate but obstructively motivated criticism is still captured by the ethics code
disagreement on firm policies before simultaneous resignation of four engineers
Four of the key engineering employees of a firm headed by Engineer A left the firm at the same time following disagreement on certain firm policies
simultaneous resignation of four engineers
disparaging remarks by Firm B about Firm A overlaps disparaging remarks by Engineer A about Firm B
The charge and counter-charge by both A and B regarding the capability of the other to provide adequate or quality services are both affronts to §12
disparaging remarks by Firm B about Firm A
disparaging remarks by Engineer A about Firm B
formation of Firm B before Firm B contacting former clients of Firm A
Firm B promptly contacted the former clients of Firm A…
Firm B contacting former clients of Firm A
four engineers' involvement with former clients on specific projects before resignation and formation of Firm B
one or more of the four engineers had been involved with the former clients of Engineer A while in his employ, and we interpret that statement of fact to apply to specific projects under consideration at the time
four engineers' involvement with former clients on specific projects
internal discussions among four engineers about soliciting clients before resignation from Firm A
We may assume that the four engineers possibly discussed among themselves the idea of soliciting work of former clients of A while still in his employ
internal discussions among four engineers about soliciting clients
projects under discussion with Firm A during Firm B contacting former clients
Entity1 occurs entirely within the duration of Entity2
promotional efforts and negotiations by four engineers after resignation from Firm A
promotional efforts and negotiations by four engineers
Both Engineer A's adverse comments about Firm B's capability and Firm B engineers' adverse comments about Engineer A's capability constituted affronts to the ethics code prohibition on injuring another engineer's professional reputation, pr
Both Engineer A and Firm B engaged in disparaging the other's capability to former clients; neither party's violation is excused by the other's, and both are equally subject to ethical condemnation for their respective disparagement conduct
Both Engineer A and the four engineers of Firm B made adverse comments about the other's capability to serve former clients; the Board found both parties in clear error, refusing to determine who 'threw the first stone' and applying the pro
Engineer A's indication of doubt about Firm B's qualification to provide quality services — made during contacts with former clients — constitutes an attempt to injure Firm B's professional reputation, prospects, and practice through compet
The Board applied the expansive, purposive interpretation of the ethics code's 'maliciously or falsely' language from Case 75-15, finding that the prohibition on peer reputation injury is activated by obstructive purpose alone — without req
Both Engineer A and Firm B engineers made adverse comments about the other's capability motivated by the intent to injure the other's prospects and secure personal competitive benefit, rendering those comments ethically impermissible even t
Both Engineer A and Firm B's communications with former clients about each other's capabilities must satisfy the honesty obligation; casting doubt on a competitor's qualifications without factual basis violates the honesty principle as well
Firm B cast doubt on Engineer A's ability to provide quality services to former clients during solicitation contacts, constituting an affirmative false or misleading representation about a competitor's capability made to induce client defec
Firm B's casting of doubt on Engineer A's ability to provide quality services to former clients constitutes an attempt to injure Engineer A's professional reputation, prospects, and practice through competitive critique rendered in circumst
One or more of the four departing engineers had been involved with former clients of Firm A on specific projects while employed there; their solicitation of those same clients for substantially similar work triggers the specialized knowledg
One or more of the four engineers who left Engineer A had been involved with former clients of A on specific projects while employed by A; their solicitation of those specific projects after departure raises a violation of the specialized k
Firm B's solicitation of former clients of Firm A who had no active contract is evaluated against the principle that free and open competition is a basic ethical rule, meaning such solicitation is not inherently impermissible absent a forma
The Board affirmed that free and open competition permits Firm B engineers to solicit former clients of Engineer A where no active contract or negotiation existed, treating competitive solicitation of uncontracted former clients as within t
The departure of four key engineers from Firm A following policy disagreements to form a competing firm is evaluated as an exercise of the reciprocal right of engineers to depart employment, mirroring the employer's right to terminate at wi
The four engineers of Firm B had a right to seek assignments from former clients of Engineer A because Engineer A had no existing contract and was not engaged in negotiations for a particular project with those clients at the time of Firm B
Firm B's solicitation of former clients of Firm A who had projects under discussion but for whom specific selection or negotiation had not taken place does not constitute impermissible supplanting, because the supplanting prohibition applie
The four departing engineers' formation of a competing firm and solicitation of former clients is evaluated as an exercise of competitive employment freedom, permissible provided they do not disclose or misuse confidential information acqui
The four engineers' internal discussions about soliciting former clients of Engineer A while still employed did not constitute a violation because they did not undertake actual promotional efforts or negotiations with those clients while st
Firm B's communications with former clients that cast doubt on Engineer A's capability, if misleading or unsubstantiated, violate the obligation to avoid deceptive or misleading language in the solicitation of professional employment
Engineer A violated the prohibition on injuring another engineer's professional reputation by making adverse comments about Firm B's capability to provide adequate or quality services to former clients, when such comments were motivated by
Engineer A was obligated to refrain from indicating doubt about Firm B's qualification to provide quality services when contacting former clients, as such representations constitute disparagement of a competitor's professional reputation in
Firm B was obligated to refrain from casting doubt on Engineer A's ability to provide quality services when contacting former clients, as such representations constitute disparagement of a competitor's professional reputation in violation o
Both Engineer A and the four engineers of Firm B bore independent ethical responsibility for their respective disparaging communications about the other's capability, with neither party's violation excused by the other's conduct; the Board
Both Engineer A and Firm B were independently obligated to refrain from disparaging the other's capability to former clients; neither party's violation excuses or mitigates the other's, and each bears independent ethical responsibility for
Both Engineer A and the four engineers of Firm B violated the obligation to communicate availability and qualifications honestly and without disparaging the other party's capability, by making adverse comments about the other's ability to p
The Board applied the expansive, purposive interpretation of §12's 'maliciously or falsely' language from Case 75-15, finding that the purpose of both Engineer A's and Firm B's adverse comments — clearly to prevent, hinder, or put obstacles
Firm B was obligated to conduct its solicitation communications with former clients of Firm A in a manner that was truthful, not misleading, and not deceptive — including refraining from making unsubstantiated negative representations about
One or more of the four engineers who left Engineer A were constrained from competing for specific projects of former clients of Engineer A on which they had gained particular and specialized knowledge while employed by Engineer A, without
Those engineers of Firm B who had been involved with specific former clients of Engineer A on particular projects while employed there were obligated to refrain from competing for those specific projects using specialized knowledge gained d
The voluntary departure of four key engineers from Engineer A's firm following policy disagreements and their subsequent formation of Firm B did not in itself constitute an ethics violation, as the right to depart and compete is a fundament
The four departing engineers were entitled to recognize that their simultaneous departure from Firm A following policy disagreements and formation of a competing firm raised no general ethical proscription, and that any ethical constraints
Firm B was obligated to recognize that soliciting former clients of Firm A for whom no active contract or specific selection/negotiation was underway was ethically permissible and did not constitute improper supplanting, provided solicitati
The four engineers of Firm B had a right to seek assignments from former clients of Engineer A because Engineer A had no existing contract and was not engaged in negotiations for a particular project at the time of solicitation.
The four engineers' internal discussions about soliciting former clients of Engineer A while still employed did not constitute a violation of the pre-departure promotional prohibition under a literal reading of the applicable code provision
Engineer A was obligated to conduct his contacts with former clients to reassure them of Firm A's continued capacity in a manner that was truthful, not misleading, and not deceptive — including refraining from making unsubstantiated negativ
Engineer A, in filing his ethics protest against Firm B, was obligated to be transparent about his competitive relationship with Firm B and to ensure the protest was factually grounded rather than primarily a competitive tactic, so that the
Engineer A was obligated to ensure that his ethics protest alleging supplanting by Firm B was grounded in an accurate reading of the supplanting prohibition — specifically that active contracts or specific selection/negotiation were underwa
The four engineers of Firm B violated the prohibition on injuring another engineer's professional reputation by making adverse comments about Engineer A's capability to provide adequate or quality services to former clients, when such comme
simultaneous resignation of four engineers before formation of Firm B
left the firm at the same time following disagreement on certain firm policies and promptly organized a new engineering firm, B
{'license': 'Professional Engineer', 'position': 'Firm Principal / Head', 'firm': 'Firm A'}
Head of original engineering firm who lost four key engineers to a competing firm; contacted former clients to reassure them of continued capacity while also casting doubt on Firm B's qualifications, and formally protested the departing engineers' conduct as a violation of the supplanting rule.
{'type': 'competitor_to', 'target': 'Firm B'}
{'type': 'former_employer_of', 'target': 'Four Departing Engineers'}
{'type': 'service_provider_to', 'target': 'Former Clients of Firm A'}
Incumbent Firm Principal Defending Against Competitor Disparagement
Engineer A has protested the action of the four engineers on ethical grounds
Firm B Pre-Award Client Solicitation Without Supplanting Violation
Following departure of four engineers from Engineer A's firm through their competitive outreach to former clients
Engineer A did not have an existing contract, nor was he engaged in negotiations for a particular project relative to the contacts made by Firm B with former clients of Engineer A.
Firm B's solicitation of Engineer A's former clients where no contract or negotiation for specific work existed
Not resolved in the text; supplanting rule found inapplicable
Formation of Firm B and initiation of competitive solicitation of Engineer A's former clients
Four Engineers Pre-Departure Solicitation Planning Without Overt Action
While the four engineers were still employed by Engineer A, prior to departure
The four engineers' internal discussions about soliciting former clients while still employed by Engineer A, without overt promotional action
Internal discussions among the four engineers about future competitive plans
Free and Open Competition Framework Governing Engineering Firm Competition
Free and Open Competition Legal Framework Active State
The legal and ethical framework governing competitive conduct between Firm A and Firm B in soliciting former clients
Not terminated — ongoing competitive marketplace condition
Formation of Firm B as a competing engineering enterprise in the same market
Prior Client Relationship Leverage by Departed Engineers
During the competitive solicitation period following Firm B's formation
One or more of the four departed engineers
In some instances one or more of the four engineers had been involved with the former clients of Engineer A while in his employ
Prior Client Relationship Leveraged in Post-Departure Competition State
One or more of the four departed engineers who had direct personal professional involvement with specific former Firm A clients during their employment
Client selection decisions or ethical determination on permissibility
Firm B's solicitation of former clients with whom individual departed engineers had prior personal professional relationships
Firm B Competitive Solicitation Motivation Transparency Reporting Context
Engineer A filed an ethics protest against the four departing engineers while simultaneously competing with Firm B for the same former clients.
Competitive Peer Misconduct Reporting Motivation Transparency Obligation
Engineer A, in filing his ethics protest against Firm B, was obligated to be transparent about his competitive relationship with Firm B and to ensure the protest was factually grounded rather than primarily a competitive tactic, so that the receiving ethics body could assess the report's context appropriately.
At the time of filing the ethics protest against the four departing engineers
Engineer A was also making contact with the former clients to indicate that his firm was still available for future commissions.
Firm B Engineers Specialized Knowledge Constraint Specific Projects Former Clients
One or more of the four departing engineers had been involved with former clients of Engineer A on specific projects while in his employ, and subsequently solicited those same clients for the same or related work after forming Firm B
One or more of the four departing engineers of Firm B
Specialized Knowledge Post-Departure Competition Constraint Obligation
One or more of the four engineers who left Engineer A were constrained from competing for specific projects of former clients of Engineer A on which they had gained particular and specialized knowledge while employed by Engineer A, without the consent of all interested parties.
Upon solicitation of former clients for projects involving specialized knowledge gained during employment
Engineer A Self-Interest Contaminated Criticism of Firm B
During the competitive dispute following the departure of the four engineers and formation of Firm B
Self-Interest Contaminated Inter-Engineer Criticism State
Engineer A's critical statements about Firm B's capacity to provide adequate or quality services
Competitive conflict arising from departure of four engineers and formation of competing Firm B
Firm B Engineers Specialized-Knowledge-Exploiting Departing Employee Engineer
{'license': 'Professional Engineers', 'position': 'Former employees of Engineer A, now principals/members of Firm B', 'conduct': 'Solicited former clients on specific projects for which specialized knowledge was gained during employment'}
One or more of the four engineers who left Engineer A had been involved with former clients of A on specific projects while in his employ, and upon departure solicited or performed work for those same clients on those specific projects, potentially without consent of all interested parties, implicating §7(a).
{'type': 'co-principal', 'target': 'Other Firm B Engineers'}
{'type': 'former_employee', 'target': "Engineer A's firm"}
{'type': 'soliciting', 'target': 'Former Clients of Engineer A'}
Specialized-Knowledge-Exploiting Departing Employee Engineer
in some instances one or more of the four engineers who left A had been involved with former clients of A while in his employ, and we interpret that statement of fact to apply to specific projects under consideration at the time
as related to practice in connection with a specific project for which the employed engineer has gained particular and specialized knowledge
Firm B Self-Interest Contaminated Criticism of Engineer A
Firm B's (four departing engineers') critical statements about Engineer A's capacity to provide adequate or quality services
Competitive conflict arising from acrimonious departure and formation of competing firm
Firm B Supplanting Allegation Against Departing Engineers
From the moment Firm B contacted former Firm A clients through resolution of the ethical dispute
Post-Departure Former Client Solicitation Supplanting Allegation State
Competitive relationship between Firm A (Engineer A) and Firm B (four departed engineers)
Not yet terminated — ongoing ethical dispute
Firm B's prompt contact with former Firm A clients, including those with projects under discussion but not formally awarded
Free and Open Competition Invoked for Firm B Solicitation of Former Clients
Solicitation of former clients of Firm A with projects under discussion but no active contract
Former-Client Solicitation Without Active-Contract Supplanting Permissibility Principle
Specialized Knowledge Constraint on Post-Departure Competition
Firm B's solicitation of former clients of Firm A who had no active contract is evaluated against the principle that free and open competition is a basic ethical rule, meaning such solicitation is not inherently impermissible absent a formal engagement relationship
Free and open competition permits departing engineers to solicit former employer clients, provided no active contractual relationship exists and no other ethical constraints (e.g., specialized knowledge, disparagement) are violated
The competitive freedom principle supports Firm B's solicitation of uncontracted former clients; the ethical violation, if any, lies in the manner of solicitation (disparagement), not the solicitation itself
Mutual Capacity Disparagement Between Firm A and Firm B
During the period of competitive client solicitation following Firm B's formation
Mutual Reciprocal Competitor Capacity Disparagement State
Simultaneous competitive disparagement by both Firm A and Firm B directed at each other's qualifications
Not yet terminated — ongoing competitive solicitation period
Firm B's statements to clients casting doubt on Firm A's ability to provide quality services, followed by Engineer A's reciprocal statements doubting Firm B's qualifications
Solicitation Deception Avoidance Obligation Applied to Firm B Client Contacts
Solicitation communications with former clients of Firm A
The deception avoidance obligation applies not only to self-promotional claims but also to negative characterizations of competitors embedded in solicitation communications; misleading doubt-casting about a competitor's capability is a form of solicitation deception
Solicitation Deception Avoidance Obligation
Solicitation communications must be honest in both self-promotion and competitor characterization; the obligation is violated when competitor capability is misrepresented to induce client defection
Disparaging Misrepresentation Prohibition Violated by Firm B
Communications with former clients of Firm A during competitive solicitation
Firm B cast doubt on Engineer A's ability to provide quality services to former clients during solicitation contacts, constituting an affirmative false or misleading representation about a competitor's capability made to induce client defection
Casting doubt on Engineer A's capability during client solicitation — particularly when Firm B stands to benefit directly from clients' diminished confidence in Firm A — violates the prohibition on disparaging misrepresentation of competitor capability
Firm B Engineers Mutual Disparagement Competing Engineer
Disparaging Misrepresentation of Competitor Capability Prohibition
Engineer A Self-Interest-Tainted Capability Disparagement Violation
Engineer A made adverse capability comments about Firm B (the four former employees) to former clients during contacts intended to reassure clients of Engineer A's continued capacity
Self-Interest-Tainted Competitive Capability Critique Prohibition Obligation
Engineer A violated the prohibition on injuring another engineer's professional reputation by making adverse comments about Firm B's capability to provide adequate or quality services to former clients, when such comments were motivated by the intent to injure Firm B's prospects and retain clients for personal competitive benefit.
During contacts with former clients following the departure of the four engineers to form Firm B
Firm B Engineers Self-Interest-Tainted Capability Disparagement Violation
Firm B engineers made adverse capability comments about Engineer A to former clients during competitive solicitation contacts
The four engineers of Firm B violated the prohibition on injuring another engineer's professional reputation by making adverse comments about Engineer A's capability to provide adequate or quality services to former clients, when such comments were motivated by the intent to injure Engineer A's prospects and secure personal competitive benefit.
During competitive solicitation of former clients of Engineer A following formation of Firm B
Purpose-to-Obstruct Sufficiency Standard Applied to Disparagement Analysis
Ethics code Section 12 analysis of capability disparagement by both parties
Ethics Code Expansive Interpretation Canon
Honest Disagreement Among Qualified Engineers Permissibility Principle
The Board applied the expansive, purposive interpretation of the ethics code's 'maliciously or falsely' language from Case 75-15, finding that the prohibition on peer reputation injury is activated by obstructive purpose alone — without requiring proof of technical falsity or subjective malice — and applied this standard to find both Engineer A and Firm B in violation
The 'maliciously or falsely' language in the peer reputation injury prohibition is not a narrow technical requirement; the prohibition applies whenever the purpose of the adverse comment is to prevent, hinder, or put obstacles in the path of the other engineer, making obstructive purpose a sufficient trigger
Engineer A Mutual Disparagement Competing Engineer
Purpose-to-Obstruct Sufficiency for Peer Critique Prohibition Activation
We commented then that '…we are constrained to avoid a narrow and legalistic interpretation (of those words) and conclude that those words are not a necessary element to find that §12 applies when the purpose…is clearly to prevent, hinder, or otherwise put obstacles in the path of (the other engineer).'
Former-Client Solicitation Permissibility Invoked for Firm B Engineers
Solicitation of former clients of Engineer A by Firm B
The four engineers of Firm B had a right to seek assignments from former clients of Engineer A because Engineer A had no existing contract and was not engaged in negotiations for a particular project with those clients at the time of Firm B's solicitation
The supplanting prohibition applies only when the complaining engineer has a contract for the work or has been selected for negotiation for the particular work; absent those conditions, solicitation of former clients is permissible competitive activity
for the supplanting standard to apply the facts must demonstrate that the complaining engineer either had a contract for the work, or had been selected for negotiation by the client for the particular work
Purpose-to-Obstruct Standard Applied Both Parties Section 12 Violation
Both Engineer A and Firm B engineers made adverse capability comments to former clients; the Board applied the purpose-to-obstruct standard from Case 75-15 to find both parties in violation of §12
Ethics adjudicators; Engineer A; Firm B engineers
Purpose-to-Obstruct Sufficiency Peer Critique Prohibition Activation Obligation
The Board applied the expansive, purposive interpretation of §12's 'maliciously or falsely' language from Case 75-15, finding that the purpose of both Engineer A's and Firm B's adverse comments — clearly to prevent, hinder, or put obstacles in the path of the other — was sufficient to establish a §12 violation without requiring narrow proof of malice or falsity.
During competitive solicitation contacts with former clients
At-Will Departure Four Engineers Firm B Formation Non-Ethical-Violation
Four key engineers departed Engineer A's firm following policy disagreements and immediately formed a competing firm (Firm B)
At-Will Departure Competitive Firm Formation Non-Ethical-Violation Recognition Obligation
The voluntary departure of four key engineers from Engineer A's firm following policy disagreements and their subsequent formation of Firm B did not in itself constitute an ethics violation, as the right to depart and compete is a fundamental expression of the free enterprise system and at-will employment symmetry.
At the time of departure and formation of Firm B
Competitive Employment Freedom Affirmed for Departing Engineers
Formation of Firm B and competitive solicitation of former Firm A clients
The four departing engineers' formation of a competing firm and solicitation of former clients is evaluated as an exercise of competitive employment freedom, permissible provided they do not disclose or misuse confidential information acquired during their employment at Firm A
Competitive employment freedom permits the formation of a competing firm and solicitation of former employer clients; the ethical constraint is on the use of confidential information, not on competition itself
Competitive Employment Freedom With Confidentiality Constraint
Firm B Engineers Pre-Departure Internal Discussion Non-Violation Recognition
Four engineers discussed among themselves the idea of soliciting former clients while still employed by Engineer A, but did not make actual client contact or enter negotiations until after departure
Four departing engineers of Firm B and ethics adjudicators
Pre-Departure Internal Solicitation Discussion Non-Violation Recognition Obligation
The four engineers' internal discussions about soliciting former clients of Engineer A while still employed did not constitute a violation of the pre-departure promotional prohibition under a literal reading of the applicable code provision, because no actual promotional efforts or negotiations with clients occurred while they remained employed.
During the period of employment with Engineer A, prior to departure
Free and Open Competition Boundary Invoked to Permit Firm B Client Solicitation
Solicitation of Engineer A's former clients by Firm B after departure
The Board affirmed that free and open competition permits Firm B engineers to solicit former clients of Engineer A where no active contract or negotiation existed, treating competitive solicitation of uncontracted former clients as within the ethical boundary of permissible competition
Free and open competition is a foundational boundary condition that permits engineers to solicit former clients of prior employers absent active contractual or negotiation relationships; the ethics code does not grant incumbent engineers proprietary rights over uncontracted former clients
Mutual Disparagement Independent Ethical Responsibility Both Parties No First-Stone Excuse
Both Engineer A and Firm B engineers made adverse capability comments to former clients; each party's violation was assessed independently without regard to which party acted first
Mutual Competitive Disparagement Independent Ethical Responsibility Obligation
Both Engineer A and the four engineers of Firm B bore independent ethical responsibility for their respective disparaging communications about the other's capability, with neither party's violation excused by the other's conduct; the Board declined to speculate about which party initiated the disparagement, finding both parties in clear error.
Mutual Disparagement Symmetry Invoked Against Both Engineer A and Firm B Engineers
Adverse capability comments made by Engineer A about Firm B
Adverse capability comments made by Firm B engineers about Engineer A
Disinterested Professional Duty to Report Peer Misconduct
Both Engineer A and the four engineers of Firm B made adverse comments about the other's capability to serve former clients; the Board found both parties in clear error, refusing to determine who 'threw the first stone' and applying the prohibition symmetrically
The prohibition on reputation injury through competitive critique applies equally to both parties in a mutual disparagement scenario; neither party's violation is excused or mitigated by the other's misconduct, and the Board declines to adjudicate priority of wrongdoing
Mutual Competitive Disparagement Symmetry Principle
Pre-Departure Promotional Prohibition Literal Boundary Applied to Firm B Engineers
Internal planning discussions among the four engineers prior to departure from Firm A
The four engineers' internal discussions about soliciting former clients of Engineer A while still employed did not constitute a violation because they did not undertake actual promotional efforts or negotiations with those clients while still in Engineer A's employ
The ethics code prohibition on pre-departure promotional efforts is read literally: only actual client-facing promotion or negotiation while employed triggers the violation; internal deliberation among prospective co-founders does not
Pre-Departure Promotional Negotiation Prohibition With Literal Boundary
Prohibition on Reputation Injury Violated by Engineer A Disparagement
Firm B's professional reputation and practice
Engineer A's indication of doubt about Firm B's qualification to provide quality services — made during contacts with former clients — constitutes an attempt to injure Firm B's professional reputation, prospects, and practice through competitive critique where Engineer A directly benefits from Firm B's diminished standing
Engineer A's retaliatory disparagement is subject to the same ethical prohibition as Firm B's; the fact that Engineer A learned of Firm B's disparagement does not justify or excuse Engineer A's own disparagement of Firm B
Prohibition on Reputation Injury Through Competitive Critique
At-Will Employment Symmetry Invoked for Departure of Four Engineers
Departure from Firm A following policy disagreements and formation of Firm B
The departure of four key engineers from Firm A following policy disagreements to form a competing firm is evaluated as an exercise of the reciprocal right of engineers to depart employment, mirroring the employer's right to terminate at will
The departure itself — even en masse and immediately followed by competitive firm formation — does not constitute an ethical violation; the ethical analysis focuses on conduct during and after departure, not the departure itself
Engineer A Disparagement of Firm B Qualification to Former Clients
While contacting former clients to reassure them of Firm A's continued capacity, Engineer A made statements indicating doubt about Firm B's qualifications.
Competitor Reputation Injury Through Predictive Disparagement Prohibition Obligation
Engineer A was obligated to refrain from indicating doubt about Firm B's qualification to provide quality services when contacting former clients, as such representations constitute disparagement of a competitor's professional reputation in violation of the engineer's duties of honesty, fairness, and collegial respect.
During Engineer A's contacts with former clients following departure of the four engineers
Engineer A Supplanting Protest Competitive Motivation Non-Weaponization
Engineer A filed an ethics protest alleging that the four departing engineers violated the rule against supplanting, when in fact the former clients had projects under discussion but no specific selection or negotiation had taken place.
Supplanting Protest Competitive Motivation Non-Weaponization Obligation
Engineer A was obligated to ensure that his ethics protest alleging supplanting by Firm B was grounded in an accurate reading of the supplanting prohibition — specifically that active contracts or specific selection/negotiation were underway — and not motivated primarily by competitive self-interest, given that the former clients had no active contracts with Firm A at the time of Firm B's solicitation.
At the time Engineer A filed the ethics protest against the four departing engineers
Former-Client Solicitation Without Active-Contract Supplanting Permissibility Applied to Firm B
Former clients of Firm A with projects under discussion but no active contract or formal selection
Firm B's solicitation of former clients of Firm A who had projects under discussion but for whom specific selection or negotiation had not taken place does not constitute impermissible supplanting, because the supplanting prohibition applies only where a client has formally engaged or is in active negotiation with an incumbent engineer
The ethical line between permissible competitive solicitation and impermissible supplanting is drawn at the point of formal engagement or active negotiation; clients who have not crossed that threshold are legitimate targets of competitive solicitation by departing engineers
Specialized Knowledge Constraint Invoked Against Firm B Engineers on Specific Projects
Specific projects on which Firm B engineers gained specialized knowledge while employed by Engineer A
One or more of the four engineers who left Engineer A had been involved with former clients of A on specific projects while employed by A; their solicitation of those specific projects after departure raises a violation of the specialized knowledge constraint because consent of all interested parties was not obtained
The specialized knowledge constraint is project-specific and knowledge-specific; it does not prohibit general competition but does require consent when the departing engineer's competitive advantage derives from particular knowledge gained in the prior employment on the very project being solicited
Specialized Knowledge Constraint Triggered by Prior Project Involvement
Solicitation of former clients with whom departing engineers had project-specific involvement while at Firm A
One or more of the four departing engineers had been involved with former clients of Firm A on specific projects while employed there; their solicitation of those same clients for substantially similar work triggers the specialized knowledge constraint requiring prior consent
Engineer A Honest Non-Deceptive Competitive Reassurance Communication
Engineer A contacted former clients to indicate that his firm retained capacity to provide proper services despite the departure of the four engineers, during which he indicated doubt about Firm B's qualifications.
Truthful and Non-Deceptive Advertising Obligation
Engineer A was obligated to conduct his contacts with former clients to reassure them of Firm A's continued capacity in a manner that was truthful, not misleading, and not deceptive — including refraining from making unsubstantiated negative representations about Firm B's qualifications.
Firm B Disparagement of Engineer A Capability to Former Clients
During solicitation contacts with former clients of Firm A, Firm B made representations that cast doubt on Engineer A's ability to provide quality services.
Firm B was obligated to refrain from casting doubt on Engineer A's ability to provide quality services when contacting former clients, as such representations constitute disparagement of a competitor's professional reputation in violation of the engineer's duties of honesty, fairness, and collegial respect.
During solicitation contacts with former clients of Firm A following formation of Firm B
Four Departing Engineers At-Will Departure Competitive Formation Non-Violation
Four key engineers left Firm A simultaneously following policy disagreements and promptly organized Firm B as a competing engineering firm.
Free Enterprise Departure Right Non-Ethical-Proscription Recognition Obligation
The four departing engineers were entitled to recognize that their simultaneous departure from Firm A following policy disagreements and formation of a competing firm raised no general ethical proscription, and that any ethical constraints must be grounded in specific Code provisions rather than a general presumption against competitive departure.
At the time of departure from Firm A and formation of Firm B
Mutual Competitive Disparagement Symmetry Applied to Both Parties
Competitive solicitation communications with former clients of Firm A
The symmetry of ethical violation means the ethics analysis must condemn both parties' disparagement conduct; Engineer A cannot invoke Firm B's disparagement as a defense, and Firm B's conduct does not mitigate Engineer A's violation
he was told by the clients that Firm B had cast doubt on the ability of A to provide quality services. In his discussions with the former clients Engineer A indicated doubt that Firm B was qualified to provide quality services.
Mutual Disparagement Non-Excuse Symmetry Both Parties
Both Engineer A and Firm B engaged in disparaging the other's capability to former clients during competitive solicitation contacts; each party's violation is independent and symmetrical.
Mutual Disparagement Non-Excuse Symmetry Compliance Obligation
Both Engineer A and Firm B were independently obligated to refrain from disparaging the other's capability to former clients; neither party's violation excuses or mitigates the other's, and each bears independent ethical responsibility for their own communications.
During the period of competitive solicitation contacts with former clients of Firm A
Prohibition on Reputation Injury Violated by Firm B Disparagement
Engineer A's professional reputation and practice
Firm B's casting of doubt on Engineer A's ability to provide quality services to former clients constitutes an attempt to injure Engineer A's professional reputation, prospects, and practice through competitive critique rendered in circumstances where Firm B directly benefits from Engineer A's diminished standing
The prohibition applies regardless of whether the disparagement is framed as factual observation or opinion; the competitive context and direct benefit to the critic are the key factors establishing the ethical violation
Firm B Honest Non-Deceptive Competitive Solicitation Communication
Firm B contacted former clients of Firm A to indicate availability for assignments, during which it cast doubt on Engineer A's ability to provide quality services.
Firm B was obligated to conduct its solicitation communications with former clients of Firm A in a manner that was truthful, not misleading, and not deceptive — including refraining from making unsubstantiated negative representations about Engineer A's capability to provide quality services.
During solicitation contacts with former clients of Firm A
Firm B Specialized Project Knowledge Solicitation Restriction
From the point of departure from Engineer A's firm through solicitation of former clients on those specific projects
Former clients of Engineer A with specific projects under consideration
Specialized Project Knowledge Consent Requirement Activation State
One or more of the four departing engineers of Firm B who had been involved with specific projects of Engineer A's clients while still employed by Engineer A
Not resolved in the text; consent question left open
Departure of four engineers from Engineer A's firm, combined with their prior involvement in specific client projects during employment
Prohibition on Reputation Injury Invoked Against Both Parties' Capability Disparagement
All adverse capability comments made by either party to former clients of Engineer A
Self-Interest-Tainted Adverse Peer Critique Prohibition
Both Engineer A's adverse comments about Firm B's capability and Firm B engineers' adverse comments about Engineer A's capability constituted affronts to the ethics code prohibition on injuring another engineer's professional reputation, prospects, and practice
The prohibition on reputation injury through competitive critique applies to all adverse comments about a competitor's professional capacity made in the context of competitive solicitation, regardless of which party initiated the exchange
The prohibition on reputation injury constrains the manner of competition even where competition itself is permissible; free and open competition does not authorize disparagement of competitors
Self-Interest-Tainted Adverse Critique Prohibition Invoked Against Both Parties
Capability disparagement by Engineer A directed at Firm B
Capability disparagement by Firm B engineers directed at Engineer A
Both Engineer A and Firm B engineers made adverse comments about the other's capability motivated by the intent to injure the other's prospects and secure personal competitive benefit, rendering those comments ethically impermissible even though the Board does not entirely foreclose objective adverse commentary in proper circumstances
Adverse peer commentary is not absolutely prohibited; it may be permissible when objective and disinterested. However, when the motivation is to injure the other's prospects for personal competitive gain, the commentary crosses into ethical violation regardless of technical accuracy
Competitive Solicitation Honest Non-Disparaging Communication Both Parties Violation
Both parties made adverse capability comments to former clients during competitive solicitation; both were found in violation of §12
Competitive Solicitation Honest Non-Disparaging Communication Obligation
Both Engineer A and the four engineers of Firm B violated the obligation to communicate availability and qualifications honestly and without disparaging the other party's capability, by making adverse comments about the other's ability to provide adequate or quality services to former clients during competitive solicitation contacts.
During competitive solicitation contacts with former clients following Firm B's formation
{'license': 'Professional Engineers', 'position': 'Principals/members of newly formed Firm B', 'conduct': "Disparaged Engineer A's capability to former clients"}
The four engineers of Firm B made adverse comments about Engineer A's capability to provide adequate or quality services to former clients of Engineer A, motivated by competitive self-interest following the acrimonious departure, in violation of §12.
{'type': 'competitor', 'target': 'Engineer A'}
the motivation and intent of both A and the four engineers of Firm B were to injure the prospects of the other
Firm B Non-Supplanting Permissibility Former Client Solicitation
Four engineers departed Firm A and formed Firm B, then solicited former clients of Firm A including those with projects under discussion but no specific selection or negotiation underway.
Post-Employment Former Employer Client Competitive Solicitation Permissibility Boundary Obligation
Firm B was obligated to recognize that soliciting former clients of Firm A for whom no active contract or specific selection/negotiation was underway was ethically permissible and did not constitute improper supplanting, provided solicitation was conducted honestly and without disparagement.
At the time of solicitation contact with former clients of Firm A
Honesty Obligation in Competitive Solicitation Communications
Competitive solicitation communications with former clients
Both Engineer A and Firm B's communications with former clients about each other's capabilities must satisfy the honesty obligation; casting doubt on a competitor's qualifications without factual basis violates the honesty principle as well as the disparagement prohibition
Honesty in professional representations extends to competitive solicitation contexts; engineers may not make false or misleading statements about competitor capability even when motivated by competitive self-interest
{'license': "Professional Engineer (implied as 'key engineering employees')", 'position': 'Principals of Firm B', 'prior_firm': 'Firm A', 'new_firm': 'Firm B'}
Four key engineers who left Firm A following policy disagreements, immediately co-founded Firm B, and promptly solicited Firm A's former clients — including those with projects under active discussion — while allegedly casting doubt on Firm A's ability to provide quality services.
{'type': 'competitor_to', 'target': 'Engineer A / Firm A'}
{'type': 'former_employee_of', 'target': 'Engineer A / Firm A'}
{'type': 'soliciting', 'target': 'Former Clients of Firm A'}
Departing Engineer Forming Competing Firm and Soliciting Former Clients
{'license': 'Professional Engineer', 'position': 'Principal of original engineering firm', 'conduct': "Disparaged Firm B's capability to former clients"}
Engineer A, the original firm principal, made adverse comments about the capability of Firm B (the four former employees) to provide adequate or quality services to former clients, motivated by competitive self-interest and the acrimonious nature of the departure, in violation of §12.
{'type': 'competitor', 'target': 'Firm B Engineers'}
{'type': 'former_employer', 'target': 'Four Departing Engineers'}
{'type': 'former_provider', 'target': 'Former Clients of Engineer A'}
Both sides were in clear error by indulging in criticisms of the other
Firm B Specialized Knowledge Former Client Project Competition Constraint
In some instances one or more of the four engineers had been involved with the former clients of Engineer A while in his employ, and upon forming Firm B solicited those same clients.
Firm B engineers who had prior project involvement with former clients
Those engineers of Firm B who had been involved with specific former clients of Engineer A on particular projects while employed there were obligated to refrain from competing for those specific projects using specialized knowledge gained during that employment, unless the former employer or affected client consented.
At the time of solicitation of former clients with whom the engineers had prior project-specific involvement
Firm B Engineers Supplanting Rule Non-Application Former Clients No Active Contract
Four engineers departed Firm A and formed Firm B, then solicited former clients of Engineer A who had no active contract with Engineer A
Former Client No-Active-Contract Solicitation Permissibility Recognition Obligation
Upon formation of Firm B and initiation of client solicitation