1976 Code of Ethics (governing Case 76-3) before 1981 revised Code of Ethics (Section III.4.b.)
1981 Code Revision Enacted (Event 7) → Code Violation Instantiated (Event 6)
Accepts Contractor Adverse Retention (Action 3) → Adverse Retainer Relationship Formed (Event 5)
Accepts Government Dam Retention (Action 1) → Specialized Knowledge Acquired (Event 3)
NSPE Board of Ethical Review (derived from BER case analysis)
Adversarial Proceeding Conflict of Interest Standard
Engineer A is retained by the U.S. government to study the causes of a dam failure. Later Engineer A is retained by the contractor on this project, who has filed a claim against the U.S. government for additional compensation.
Engineer A in assessing whether to accept the contractor retention
Directly applicable to Engineer A's situation: having gained confidential technical knowledge about the dam failure while serving the government, Engineer A now faces a prohibition on representing the adverse contractor interest in the same matter without the government's informed consent
Adversarial Retention Motivation Awareness Engineer A Contractor Dam Failure
The contractor, having filed a claim against the U.S. government for additional compensation on the dam project, sought to retain the very engineer who had investigated the dam failure on behalf of the government — a retention whose primary value to the contractor derives from Engineer A's prior government-side knowledge.
Adversarial Retention Motivation Awareness Obligation
Engineer A was obligated to recognize that the contractor's motivation for retaining Engineer A was Engineer A's prior access to the U.S. government's confidential forensic findings and the perceived advantage that access would confer in the contractor's claim, and to decline the retainer on that basis.
Engineer A is retained by the U.S. government to study the causes of a dam failure.
Upon being approached by the contractor for retention
Later Engineer A is retained by the contractor on this project, who has filed a claim against the U.S. government for additional compensation.
Adversarial Retention Motivation Awareness Non-Exculpation Engineer A Contractor Dam Failure
The contractor retained Engineer A after Engineer A's government engagement ended; the case establishes that Engineer A was obligated to recognize the motivational basis for this retention
Post-Termination Adversarial Retention Motivation Awareness Non-Exculpation Constraint
Engineer A could not invoke naivety about the contractor's motivations as an exculpatory defense — the sequence of events (government retention, access to confidential dam failure investigation data, termination, and subsequent contractor retention in the same matter) created constructive awareness that the contractor sought Engineer A's services precisely because of Engineer A's prior access to the government's confidential investigation.
NSPE Code Section III.4.b; BER Case 85-4
Indeed, he may be called upon to give an opinion as to the very facts with which he was involved as a consultant with the government
At the time of accepting the contractor's retainer
There can be no doubt that Section III.4.b. was enacted to prevent engineers from disclosing such information
Adverse Retention Motivation Recognition Engineer A Contractor Dam Failure
Adverse Retention Motivation Recognition and Ethical Response Capability
Engineer A required the capability to recognize that the contractor's motivation for retaining Engineer A was specifically tied to Engineer A's prior access to U.S. government confidential forensic findings, investigative methodologies, and case strategy — and to respond ethically by declining the engagement rather than exploiting that prior access.
The contractor who filed a claim against the U.S. government subsequently retained Engineer A, who had previously investigated the dam failure on behalf of the government
Recognition that the contractor sought Engineer A precisely because of Engineer A's prior government-side knowledge of the dam failure investigation
NSPE Board of Ethical Review Case Precedent — Sequential Retention in Adversarial Dam Failure Claim
Ethics reviewers and Engineer A in analogical reasoning about the propriety of the dual retention
The BER case system provides analogical precedents for situations where an engineer is retained by one party to investigate a failure and subsequently retained by an adverse party in litigation arising from the same failure — the precise factual pattern of this case
BER Multi-Precedent Forensic Side-Switching Conflict Synthesis Engineer A Dam Failure
BER Multi-Precedent Forensic Side-Switching Conflict Synthesis Capability
Engineer A required the capability to retrieve and synthesize multiple BER precedent cases bearing on the forensic expert side-switching problem — including cases on dual loyalty, paid advocate conflicts, confidential report release, and dam failure investigator adverse retention — to identify the consistent normative thread prohibiting engineers who gained confidential access from one party from subsequently representing the opposing party in the same matter.
The dam failure forensic side-switching scenario required synthesis of multiple BER precedents to determine the applicable ethical standard
Application of synthesized BER precedent framework to the specific facts of the dam failure government-to-contractor side-switching scenario
BER Multi-Precedent Forensic Side-Switching Synthesis Dam Failure Case
The BER demonstrated the capability to retrieve and synthesize multiple precedent cases — particularly Case 76-3 and the present case — identifying the consistent normative thread that engineers who gain confidential knowledge from one party in an adversarial proceeding cannot subsequently represent the opposing party, while also identifying the critical factual distinction introduced by the 1981 Code revision
Dam failure forensic investigation; BER synthesizing Case 76-3 and present case under the 1981 revised Code
BER's detailed comparison of Case 76-3 with the present case, identifying similarities, the one key exception (termination of government engagement), and the dispositive distinction (1981 Code revision)
BER Ethics Adjudicators (Dam Failure Case)
The issue presented here was in many ways addressed by this Board in Case 76-3.
However, there is one important distinction between Case 76-3 and the case presented here.
The facts presented in the instant case are strikingly similar to those presented in Case 76-3 with one exception.
Case 76-3 decision before July 1981 Code revision
CausalLink_Accepts Contractor Adverse Ret
CausalLink_Accepts Government Dam Retenti
CausalLink_Completes and Terminates Gover
CausalLink_Forgoes Consent-Seeking from F
Code Revision Prospective Application Adverse Participation Stricter Standard Engineer A Dam Failure
Engineer A's conduct occurred after the July 1981 revision of the NSPE Code adding Section III.4.b; Case 76-3 was decided under the 1976 Code which contained no equivalent provision; Engineer A could not rely on Case 76-3 as precedent permitting his acceptance of the contractor's retainer.
Code Revision Prospective Application Adverse Participation Stricter Standard Obligation
Engineer A was obligated to apply the 1981 revised NSPE Code Section III.4.b — not the pre-1981 standard under which Case 76-3 was decided — to his decision whether to accept the contractor's retainer, recognizing that the 1981 revision established a stricter prohibition on adverse participation using specialized knowledge gained for a former client, and that the pre-revision precedent of Case 76-3 could not justify conduct clearly prohibited under the current code.
Case 76-3 was decided under the 1976 Code of Ethics which made no mention of an engineer's ethical obligation to refrain from representing an adverse interest in a proceeding.
At the time of accepting the contractor's retainer, after the July 1981 Code revision
In July 1981, the Code of Ethics was revised.
Under the revised Code section it is clear that Engineer A's action was in violation of Section III.4.b.
Code Revision Prospective Application Engineer A Dam Failure 1981 Standard
Code Revision Prospective Application Stricter Standard Self-Application Capability
Engineer A and the BER were required to recognize that the 1981 revised Section III.4.b — not the 1976 Code under which Case 76-3 was decided — governed Engineer A's post-1981 conduct, and that the revised stricter standard prohibited the contractor engagement even though Case 76-3 might have permitted it under the older standard
Dam failure forensic investigation; BER distinguishing Case 76-3 (decided under 1976 Code) from present case (governed by 1981 revised Code)
BER's explicit identification of the 1981 code revision as the dispositive distinction between Case 76-3 and the present case
Engineer A (Dam Failure Forensic Investigation Engineer) and BER Ethics Adjudicators
Comparative Case Precedent Distinguishing Obligation Applied to Case 76-3 vs Present Case
Engineer A Dam Failure Forensic Investigation Engineer
Progressive Ethics Code Restriction Retroactive Inapplicability Principle
The Board carefully distinguished the present case from Case 76-3 on two material dimensions: (1) the active vs. terminated advisory relationship, and (2) the applicable code provision — Case 76-3 was decided under the 1976 Code which lacked Section III.4.b, while the present case falls under the 1981 revised Code — demonstrating that the same factual pattern yields different ethical conclusions depending on which code provision governs
The distinguishing exercise reveals that Case 76-3's apparent permission for post-termination adverse engagement was a product of the narrower 1976 Code, not a permanent ethical clearance; the 1981 revision closes the gap that Case 76-3 left open
Comparative Case Precedent Distinguishing Obligation
Case 76-3 was decided under the 1976 Code of Ethics which made no mention of an engineer's ethical obligation to refrain from representing an adverse interest in a proceeding. In July 1981, the Code of Ethics was revised.
The Board applies the current code to the present case while respecting the prior case as correctly decided under the then-applicable code — the distinction is code-version-based, not factual
In July 1981, the Code of Ethics was revised. Section III.4.b. amended and refined the older Code Section 7
Completes and Terminates Government Retainer
Completes and Terminates Government Retainer (Action 2) → Government Engagement Concluded (Event 4)
It would not be ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances.
Beyond the Board's finding that Engineer A's retention as an expert witness for the contractor was unethical, the ethical violation was complete at the moment Engineer A accepted the contractor's retainer — not at the moment any confidential information was actually disclosed or used. The switching-sides prohibition operates as an absolute structural bar, meaning that Engineer A's subsequent pledge to produce an independent report, or any subjective intention to compartmentalize government-acquired knowledge, could not cure the conflict once the adverse engagement was accepted. The ethical harm inheres in the structural position itself: an engineer who has investigated a dam failure on behalf of one party and then accepts a retainer from the directly adverse party in the same matter has already betrayed the duty of loyalty and trust owed to the former client, regardless of subsequent conduct. This conclusion reinforces that the prohibition is deontological in character — it does not depend on a showing of actual harm, actual disclosure, or bad faith.
The Board's conclusion also implies, though does not explicitly state, that Engineer A bore an independent and proactive obligation to disclose the prior government retention to the contractor before accepting the adverse engagement — and that failure to make such disclosure constitutes a separate ethical violation distinct from the switching-sides prohibition itself. Even if one were to hypothesize a scenario in which the switching-sides prohibition could somehow be overcome (for example, through informed consent of all interested parties as contemplated by Section III.4.b), the absence of proactive disclosure would independently undermine the integrity of the engagement. An engineer who accepts a retainer from an adverse party without first disclosing the prior conflicting engagement deprives the prospective client of the information necessary to make an informed decision, deprives the former client of the opportunity to withhold consent, and deprives the adjudicative proceeding of the transparency required for forensic expert testimony to serve its legitimate function. The ethical framework therefore imposes a disclosure obligation that is logically prior to and independent of the consent-prerequisite analysis.
The Board's conclusion further implies that the contractor's motivation in seeking to retain Engineer A — specifically, to exploit Engineer A's privileged access to the government's investigative findings and strategy — is itself an ethically relevant factor that Engineer A was obligated to recognize and act upon before accepting the engagement. An engineer exercising the professional judgment required by the objectivity and loyalty principles should have recognized that the contractor's interest in retaining a former government investigator of the very same dam failure was structurally inseparable from the value of that engineer's confidential government access. Accepting such a retainer, even if Engineer A subjectively believed the engagement was legitimate, constitutes a failure of the adverse retention motivation awareness obligation. This analysis also reveals a structural impossibility: Engineer A could not simultaneously honor the confidentiality obligation owed to the government and provide the contractor with the full, uncontaminated expert analysis the contractor was entitled to expect, meaning the objectivity principle and the confidentiality principle were in irreconcilable tension the moment the adverse retainer was accepted. The ethical prohibition therefore extends beyond the expert witness role narrowly construed and would apply equally to any consulting capacity in the same matter, because the source of the conflict is the confidential knowledge held, not the formal title of the engagement.
In response to Q101: Engineer A's obligation to disclose the prior government retention arose at the earliest moment Engineer A was approached by the contractor — before any retainer agreement was signed and before any substantive discussion of the contractor's claim occurred. The ethical obligation to disclose is not merely a procedural courtesy but a substantive prerequisite to informed consent under Section III.4.b. Failure to proactively disclose constitutes an independent ethical violation separate from the switching-sides prohibition itself. Even if the switching-sides prohibition were somehow waived or inapplicable, the failure to disclose the prior adverse relationship would independently violate Engineer A's duties of candor and transparency to prospective clients. The contractor cannot make an informed decision about retention — and the former client cannot exercise its consent rights — if Engineer A withholds the material fact of the prior government engagement. Silence in this context is not neutral; it is an affirmative misrepresentation by omission of a conflict that is directly material to the legitimacy of the engagement.
In response to Q102: The passage of time alone does not erode the switching-sides prohibition, and the public availability of formerly confidential findings through litigation discovery or published reports does not cure the structural conflict created by Engineer A's prior retention. The ethical prohibition is not grounded solely in the secrecy of specific data points but in the integrity of the professional relationship itself and the structural advantage Engineer A gained by having been inside the government's investigative process. Even if every factual finding Engineer A produced for the government were later published, Engineer A would still retain privileged knowledge of the government's analytical priorities, the weaknesses the government identified in its own case, the investigative paths not pursued, and the strategic framing of the evidence — none of which is captured in published reports. Furthermore, the prohibition under Section III.4.b is relationship-based, not information-based: it attaches to the fact of the prior adverse representation in the same matter, not merely to the continued secrecy of specific documents. Only if the matter itself were so remote in time that no reasonable connection to the current proceeding could be established — a threshold not met here — might the passage of time become relevant, and even then former client consent would remain the operative cure.
In response to Q103: The contractor's motivation in retaining Engineer A — specifically to exploit Engineer A's privileged access to government investigative strategy and findings — is itself an ethically relevant factor that Engineer A was obligated to recognize and act upon before accepting the engagement. An engineer serving as a forensic expert is not a passive instrument of the retaining party; the engineer bears independent professional obligations that include recognizing when a retention is structured to weaponize a prior confidential relationship. When the circumstances of the approach make it apparent that the contractor's primary interest is in what Engineer A learned while working for the government rather than in Engineer A's independent technical expertise, Engineer A is on constructive notice that acceptance would constitute a betrayal of the former client. The fact that Engineer A may have subjectively believed the retention was legitimate does not exculpate the engineer, because the ethical standard is objective: a reasonable engineer in Engineer A's position would have recognized the structural impropriety. Acceptance under these circumstances compounds the ethical violation by making Engineer A complicit in the contractor's attempt to convert a confidential professional relationship into a litigation advantage.
In response to Q104: The ethical prohibition is not narrowly confined to the expert witness role and extends to any capacity in which Engineer A might serve the contractor in this matter, including as a non-testifying consulting expert. The structural conflict arises from the relationship and the confidential access, not from the specific professional role Engineer A would occupy. A consulting expert who does not testify but who advises the contractor on technical strategy, helps frame deposition questions for government witnesses, or assists in evaluating the government's expert reports would be deploying the same privileged knowledge in the same adverse manner as a testifying expert. The harm to the former client — the government — is equivalent regardless of whether Engineer A appears on the witness stand. Section III.4.b's prohibition on participating in or representing an adverse party in the same matter encompasses advisory participation, not merely formal testimonial participation. Any narrower reading would allow the switching-sides prohibition to be circumvented through the simple expedient of designating the conflicted engineer as a non-testifying consultant.
In response to Q201: Engineer A cannot credibly claim to offer objective expert testimony for the contractor when that objectivity is structurally undermined by prior confidential access to the opposing party's investigative findings and strategy. The Objectivity Principle and the Loyalty Obligation are not merely in tension here — they are mutually exclusive in this specific factual configuration. Objectivity in expert witness testimony requires that the expert's analysis be derived from independent evaluation of the evidence, uncontaminated by privileged knowledge of the opposing party's internal deliberations. Engineer A's prior government engagement means that any analysis Engineer A produces for the contractor will inevitably be shaped — consciously or unconsciously — by knowledge of what the government found, what the government considered significant, and where the government perceived weaknesses in its own position. This is not a conflict that can be managed through procedural safeguards such as information screens or pledges of independence; it is a structural impossibility. The Objectivity Principle, properly understood, therefore reinforces rather than conflicts with the Loyalty Obligation: genuine objectivity in this matter is unattainable for Engineer A precisely because of the prior loyalty relationship.
In response to Q202: The Confidentiality Principle and the Objectivity Principle are not merely in tension for Engineer A — they create an irresolvable dilemma that independently bars acceptance of the contractor's retainer. If Engineer A honors the confidentiality obligation to the government, Engineer A must withhold from the contractor's legal team the full scope of what Engineer A knows about the government's investigative findings, analytical conclusions, and strategic vulnerabilities. This means the contractor cannot receive the complete, uncontaminated expert analysis it is entitled to expect from a retained expert. Conversely, if Engineer A provides the contractor with the full benefit of Engineer A's knowledge and expertise — as the contractor's retainer implicitly demands — Engineer A necessarily deploys confidential government information in an adverse proceeding. There is no middle path that satisfies both obligations simultaneously. This structural impossibility is itself a sufficient and independent basis for concluding that Engineer A cannot ethically accept the contractor's retainer, even setting aside the switching-sides prohibition entirely.
In response to Q203: The sequential nature of Engineer A's engagements does not make the ethical violation less severe than the simultaneous dual-role situation in Case 76-3 — if anything, it makes certain dimensions of the violation more severe. In Case 76-3, the simultaneous dual-role created an obvious and visible conflict that any observer could identify, and the Board's remedy of resignation addressed the ongoing nature of the divided loyalty. In the present sequential case, the conflict is structurally less visible — Engineer A's government engagement has concluded — but the harm is equally real because the confidential knowledge acquired during that engagement persists indefinitely. The sequential structure may actually be more dangerous to the integrity of adversarial proceedings because it creates the misleading appearance that the prior relationship has been cleanly severed when in fact the informational and relational advantages it conferred remain fully operative. The 1981 Code revision, by explicitly addressing the sequential adverse representation scenario, reflects the profession's recognition that the sequential structure required its own categorical prohibition rather than reliance on the resignation remedy developed for simultaneous conflicts in Case 76-3.
In response to Q204: The 1981 Code revision does not create genuine ambiguity about the governing standard — it clarifies and codifies a prohibition that was already implicit in the pre-existing loyalty and confidentiality obligations. The progressive tightening of the Code through the 1981 revision should be understood not as a retroactive imposition of a stricter standard on conduct that was previously permissible, but as an explicit articulation of a principle that the profession's ethical foundations had always required. The Board's analysis of the present case under the post-1981 standard is therefore not retroactively unfair to Engineer A; rather, the 1981 revision simply removed any residual ambiguity that a sophisticated engineer might have exploited to argue that sequential adverse representation was permissible under the prior Code. Even under the pre-1981 standard, the combination of loyalty obligations, confidentiality duties, and the general prohibition on conduct harmful to the profession would have pointed toward the same conclusion. The 1981 revision's primary practical effect is to eliminate the need for case-by-case inference and to establish a clear, prospective rule that engineers can apply with certainty.
In response to Q301: From a deontological perspective, Engineer A's duty of loyalty and non-betrayal to the U.S. government as a former client was violated at the moment of accepting the contractor's retainer, entirely independent of whether any confidential information was subsequently disclosed. Deontological ethics evaluates the moral quality of actions by reference to the duties they fulfill or violate, not by reference to their consequences. The duty of loyalty to a former client in the same matter is a categorical obligation: it prohibits adverse participation regardless of outcome. Engineer A's acceptance of the contractor's retainer constituted a betrayal of the trust relationship that the government reposed in Engineer A when it shared confidential investigative information and strategy. The pledge to produce an independent report, the absence of any proven disclosure of specific confidential findings, and any other consequentialist considerations are irrelevant to the deontological assessment. The violation was complete and morally significant the moment Engineer A agreed to serve an adverse party in the same matter, because that agreement was itself an act of disloyalty to the former client.
In response to Q302: From a consequentialist perspective, the harms generated by Engineer A's acceptance of the contractor's retainer substantially and decisively outweigh any benefit the contractor might derive from Engineer A's specialized knowledge. The harms are systemic and institutional: erosion of public trust in the integrity of government forensic investigations, chilling of future government willingness to share sensitive investigative findings with retained experts, undermining of the adversarial proceeding's fairness by allowing one party to benefit from the opposing party's confidential deliberations, and degradation of the professional norm that forensic engineering expertise is offered on the basis of independent analysis rather than privileged access. These harms extend far beyond the immediate parties and affect the entire ecosystem of public infrastructure forensic investigation. The benefit to the contractor — access to an expert with firsthand knowledge of the dam failure — is real but not unique: other qualified forensic engineers without the conflict could have provided equivalent or superior independent analysis. The consequentialist calculus therefore strongly reinforces the deontological conclusion: Engineer A should not have accepted the retainer.
In response to Q303: From a virtue ethics perspective, Engineer A failed to demonstrate the professional integrity, impartiality, and trustworthiness expected of a forensic expert witness. A virtuous forensic engineer is one whose character disposes them to recognize conflicts before they arise, to prioritize the integrity of the professional relationship over financial opportunity, and to understand that the expert witness role carries obligations to the adversarial system as a whole — not merely to the retaining party. A person of genuine professional integrity would have recognized immediately upon being approached by the contractor that the prior government engagement created an insuperable conflict, would have disclosed that conflict proactively, and would have declined the retainer without needing to be compelled by a code provision. The fact that Engineer A accepted the retainer — and apparently did so without apparent hesitation or proactive disclosure — suggests a failure of the virtuous dispositions that the profession demands of forensic experts. The virtue ethics analysis also highlights that the contractor's motivation in seeking Engineer A's retention was itself a signal that a virtuous engineer should have recognized and acted upon: being sought out specifically because of privileged access to an opposing party's confidential work is not a mark of professional distinction but a warning of ethical peril.
In response to Q304: From a deontological perspective, the ethical violation was complete at the moment Engineer A accepted the contractor's retainer, and no subsequent conduct — including pledging to produce an independent report, refraining from disclosing specific confidential findings, or conducting a genuinely independent technical analysis — could retroactively cure or mitigate the violation. The switching-sides prohibition under Section III.4.b is a categorical rule, not a standard of care that admits of degrees of compliance. Once Engineer A agreed to serve an adverse party in the same matter without the former client's consent, the prohibition was violated in its entirety. Subsequent good conduct does not undo the breach of duty that occurred at acceptance; it merely affects the severity of downstream consequences, not the existence of the violation itself. This analysis is consistent with the Board's implicit treatment of the independent report pledge as a non-cure: the pledge addresses the symptom — potential disclosure of confidential information — while leaving the underlying violation — the adverse representation itself — entirely intact.
In response to Q401: It would have been ethically permissible for Engineer A to accept the contractor's retainer if the contractor's claim had involved a completely different dam project unrelated to the government investigation Engineer A had conducted. The switching-sides prohibition and the former client adversarial participation prohibition are both matter-specific: they attach to the same matter in which the prior confidential relationship arose. If the contractor's claim concerned a different dam, a different failure event, and a different set of technical and factual issues, Engineer A's prior government engagement would not have generated the structural conflict that makes acceptance impermissible here. Engineer A's general expertise in dam failure forensics would remain available to any client in any unrelated matter. The ethical constraints identified in this case are therefore not a blanket prohibition on Engineer A serving contractors who have disputes with the government; they are a targeted prohibition on Engineer A serving any party adverse to the government in the specific matter — the dam failure investigation — in which Engineer A acquired confidential knowledge as the government's retained expert.
In response to Q402: The ethical outcome would have differed materially if Engineer A had proactively sought and obtained the U.S. government's informed consent before accepting the contractor's retainer, because Section III.4.b explicitly identifies consent of all interested parties as the operative exception to the adverse participation prohibition. However, for that consent to satisfy the requirements of Section III.4.b, it would need to be genuinely informed and freely given — not merely formal or coerced. The government's consent would need to be accompanied by full disclosure of the nature and scope of Engineer A's proposed engagement for the contractor, the specific confidential information Engineer A possessed, and the potential uses to which that information might be put. Additionally, the consent would need to be accompanied by enforceable undertakings by Engineer A regarding the boundaries of the contractor engagement — for example, explicit agreement not to advise the contractor on matters directly derived from confidential government findings. Even with consent, Engineer A would face the structural impossibility identified in Q202: the inability to simultaneously honor confidentiality obligations and provide the contractor with uncontaminated expert analysis. Consent therefore cures the formal violation of Section III.4.b but does not resolve the deeper structural conflict that makes Engineer A's objectivity unattainable in this matter.
In response to Q403: Under the pre-1981 Code standard applicable in Case 76-3, Engineer A's acceptance of the contractor's retainer would likely still have been ethically problematic, though the analysis would have required more inferential reasoning from general loyalty and confidentiality principles rather than application of an explicit sequential adverse representation rule. The 1981 Code revision represents a meaningful and substantive tightening of the standard: it moved the profession from a regime in which sequential adverse representation required case-by-case ethical inference to one in which it is categorically prohibited absent consent. Had Case 76-3 arisen after the 1981 revision, the Board's analysis would have been simpler and more categorical — the resignation remedy identified in Case 76-3 for simultaneous conflicts would have been supplemented by the explicit sequential prohibition for post-termination adverse engagements. The 1981 revision therefore does not merely restate existing law; it closes a gap that the pre-1981 framework left open to argument, and it reflects the profession's considered judgment that the sequential structure of adverse representation is sufficiently dangerous to the integrity of professional relationships to warrant explicit categorical prohibition.
In response to Q404: Full disclosure of the prior government retainer to the contractor before acceptance would not cure the ethical conflict, and the contractor's motivation in retaining Engineer A specifically because of that prior access would itself constitute an independent bar to acceptance. Transparency about the conflict is a necessary but not sufficient condition for ethical acceptance: it satisfies the disclosure obligation but does not satisfy the consent requirement of Section III.4.b, which requires the consent of the former client — the government — not merely the disclosure to the new client. Moreover, when the contractor's motivation is explicitly to exploit Engineer A's privileged access to government investigative strategy and findings, Engineer A's acceptance — even with full disclosure to the contractor — transforms Engineer A into an instrument of the very harm the switching-sides prohibition is designed to prevent. A retention that is transparent about its improper purpose is not thereby rendered proper. Engineer A's professional obligations require not merely disclosure but declination when the proposed engagement is structured to weaponize a prior confidential relationship, regardless of how openly that purpose is acknowledged by the retaining party.
The tension between the Objectivity Principle for expert witness independence and the Loyalty Obligation to the former client U.S. Government was resolved decisively in favor of loyalty, but not by subordinating objectivity as a lesser value. Rather, the Board's reasoning reveals that the two principles are structurally incompatible in this fact pattern: Engineer A cannot credibly claim to offer objective expert testimony for the contractor when the very foundation of that testimony was built on privileged access to the opposing party's investigative findings and strategy. Objectivity, properly understood, requires freedom from structural conflicts — not merely a subjective pledge of impartiality. Because Engineer A's prior government engagement permanently contaminated the epistemic basis of any subsequent analysis in the same matter, the Objectivity Principle itself demands declination of the contractor's retainer. The case thus teaches that loyalty and objectivity are not genuinely in tension here; they converge on the same outcome. An expert who has switched sides cannot be objective, and an expert who cannot be objective has no legitimate claim to the expert witness role.
The Confidentiality Principle protecting government-acquired specialized knowledge and the Objectivity Principle for expert witness independence do not merely tension against each other — they create a structural double bind that makes Engineer A's acceptance of the contractor's retainer ethically untenable from two independent directions simultaneously. If Engineer A honors the Confidentiality Principle and withholds government-acquired findings and strategic insights from the contractor's analysis, then Engineer A's expert testimony is incomplete and potentially misleading, violating the duty of candor owed to the contractor and the tribunal. If Engineer A instead provides the contractor with the full benefit of all knowledge acquired during the government engagement — including confidential investigative strategy and findings — then Engineer A has breached the Confidentiality Principle owed to the former client. There is no path through this double bind that satisfies both principles simultaneously. The case teaches that when a confidentiality obligation and an objectivity obligation are structurally irreconcilable in a given engagement, the engineer's only ethically compliant option is to decline the engagement entirely rather than attempt to navigate an impossible middle course.
The Switching Sides Prohibition operates in this case as a lexically prior principle that forecloses engagement with the other principles rather than being weighed against them. The Board's analysis, informed by the 1981 Code revision and the precedent of Case 76-3, establishes that the Former Client Adversarial Participation Prohibition under Section III.4.b is not a factor to be balanced against Engineer A's potential contributions to the contractor's claim or the adversarial system's interest in access to specialized expertise. Instead, it functions as an absolute threshold constraint: once Engineer A was retained by the U.S. government to investigate the dam failure, the same-matter adverse retainer by the contractor became categorically impermissible absent the government's informed consent, regardless of the sequential rather than simultaneous nature of the engagements, regardless of Engineer A's pledge to produce an independent report, and regardless of whether any specific confidential finding was actually disclosed. The case teaches that the 1981 Code revision deliberately elevated the switching-sides prohibition from a contextual consideration to a near-absolute rule precisely because the harms it prevents — betrayal of client trust, contamination of adversarial proceedings, and erosion of public confidence in forensic engineering — are structural and not remediable by individual pledges of good conduct. Principle prioritization in this case is therefore not achieved through balancing but through categorical exclusion: loyalty and confidentiality obligations to the former client operate as side-constraints that remove the engagement from the domain of permissible action before any weighing of competing considerations can begin.
Confidential Client Information — Engineer A U.S. Government Dam Failure Investigation
Engineer A's possession of the U.S. government's confidential investigative findings from the dam failure study is the central resource that makes the contractor's retainer ethically impermissible; the confidentiality constraint operates as a hard bar on any adversarial use of that information.
Confidential Client Information Constraint
Engineer A is constrained from disclosing, using, or allowing the confidential forensic findings, investigative methodologies, technical data, and government litigation strategy obtained during the dam failure study for the U.S. government to be accessed by or deployed in favor of the contractor — the adverse claimant — in the same matter.
NSPE Code Section III.4; BER Case No. 85-4
Indefinitely, and at minimum for the duration of the contractor's claim against the U.S. government
Confidential Information Mental Segregation Impossibility Engineer A Dam Failure
Confidential Information Mental Segregation Impossibility Recognition Capability
Engineer A was required to recognize that it was not realistically possible to mentally segregate the confidential forensic findings, investigative methodologies, and specialized knowledge gained during the government engagement from any expert analysis he would perform for the contractor in the same matter
Dam failure forensic investigation; Engineer A's prior firsthand knowledge of dam failure facts could not be segregated from proposed contractor expert testimony
BER's analysis that Engineer A's expert opinions would inevitably be based on firsthand knowledge and understanding of facts of record from the government engagement
Engineer A (Dam Failure Forensic Investigation Engineer)
There is a danger that Engineer A's opinions, based on his firsthand knowledge and his understanding of the facts of record, would touch upon privileged, specialized, and confidential knowledge gained while he was retained by the U.S. government.
Indeed, he may be called upon to give an opinion as to the very facts with which he was involved as a consultant with the government.
Confidential Information Mental Segregation Impossibility Recognition Engineer A Dam Failure
Engineer A required the capability to recognize that having been exposed to the U.S. government's confidential forensic findings, investigative methodologies, and technical data during the government engagement, it was not realistically possible to mentally segregate that information when performing forensic work for the contractor in the same dam failure matter.
Engineer A had access to government forensic investigation findings before being approached by the contractor, making mental segregation of that knowledge impossible in any subsequent contractor-side engagement
Recognition that any pledge to provide an independent analysis for the contractor could not overcome the cognitive impossibility of blotting out previously acquired government-side confidential knowledge
Confidentiality Principle Invoked Regarding U.S. Government Investigation Findings
U.S. Government Dam Failure Investigation Client
Switching Sides Prohibition in Adversarial Proceedings
The forensic findings, investigative methodology, and technical conclusions developed by Engineer A during the government-retained dam failure study constitute confidential client information; accepting the contractor's retainer creates a structural risk that this confidential information will be used against the former client
Confidentiality obligations to the U.S. government persist after the engagement ends; the contractor's adverse claim against the government in the same matter means that any forensic opinion Engineer A renders for the contractor will inevitably draw on — or be shaped by — the confidential knowledge obtained from the government
Confidentiality reinforces rather than conflicts with the switching sides prohibition in this case; both principles converge on the same conclusion that Engineer A must not accept the contractor's retainer
Confidentiality Principle Invoked for Government-Acquired Specialized Knowledge
Contractor's right to best available expert
The specialized, privileged, and confidential knowledge Engineer A acquired while retained by the U.S. government to study the dam failure cannot be disclosed or deployed in adverse expert testimony against the government, because Section III.4.b was specifically enacted to prevent engineers from disclosing such information
Confidentiality of government-acquired specialized knowledge persists after engagement termination and is reinforced by the adversarial participation prohibition; the two provisions work in tandem to protect former clients from having their own information used against them
Section III.4.b. was enacted to prevent engineers from disclosing such information
Confidentiality obligation prevails; the contractor must seek expert witnesses who did not acquire specialized knowledge on behalf of the adverse party
{'entity_type': 'Construction contractor', 'claim_type': 'Additional compensation claim against U.S. government', 'conflict_trigger': 'Retaining engineer previously engaged by adverse party on same matter'}
Filed a claim against the U.S. government for additional compensation on the dam project; subsequently retained Engineer A — who had previously been engaged by the U.S. government to investigate the same dam failure — to support its claim, triggering a conflict of interest obligation for Engineer A to decline or withdraw.
{'type': 'adverse_to', 'target': 'U.S. Government Dam Failure Investigation Client'}
{'type': 'retained_engineer', 'target': 'Engineer A Dam Failure Forensic Investigation Engineer'}
Contractor Adverse Claim Forensic Retaining Client
Engineer A is retained by the contractor on this project, who has filed a claim against the U.S. government for additional compensation
Contractor Cross-Side Retention of Engineer A in Same Dam Failure Matter
From the moment the contractor retains Engineer A onward; the prohibition is immediate and absolute upon the cross-side engagement being proposed or accepted
Later Engineer A is retained by the contractor on this project, who has filed a claim against the U.S. government for additional compensation
Same-Proceeding Cross-Side Engagement Prohibition State
Engineer A's acceptance of retention by the contractor — the opposing party in the same dam failure matter — after having served the U.S. government in the same investigation
Engineer A declining the engagement, or full resolution of the contractor's claim against the government
Contractor files a claim against the U.S. government and retains Engineer A — the same engineer who investigated the dam failure for the government — to support that claim
Should Engineer A accept the contractor's retainer as expert witness against the U.S. government in the same dam failure matter, notwithstanding that the prior government engagement has been formally completed and compensated?
Engineer A has completed and been paid in full for forensic investigation work performed on behalf of the U.S. government in a dam failure matter. A contractor who has filed a claim against the government arising from the same dam project subsequently approaches Engineer A and offers a retainer to serve as an expert witness. Engineer A must decide whether to accept or decline this adverse engagement, knowing that the prior government engagement gave Engineer A access to confidential forensic findings, investigative methodologies, and strategic analysis belonging to the government.
Refuse the contractor's offer of retention as expert witness in the dam failure claim, recognizing that the 1981 revision of NSPE Code Section III.4.b bars adverse participation using specialized knowledge gained for a former client regardless of whether the prior engagement has been formally terminated and fully compensated.
Accept the contractor's retainer on the condition of pledging to conduct a wholly separate and independent forensic analysis, relying on the formal termination of the government engagement and full payment as sufficient cure of any conflict, and on pre-1981 precedent such as Case 76-3 as justification.
Accept the contractor's retainer without restriction or condition, treating the completed government engagement as a closed matter that creates no continuing ethical obligations, and proceeding to provide expert testimony based on firsthand knowledge of the dam failure facts.
Government-Retained Forensic Engineer Facing Adverse Contractor Solicitation
Is Engineer A obligated to proactively disclose the prior government retention to the contractor at the earliest moment of approach, before any retainer agreement is executed, and does failure to do so constitute an independent ethical violation?
Before or upon being approached by the contractor, Engineer A must decide whether to proactively disclose the prior government retention to the contractor. The contractor is soliciting Engineer A specifically because of Engineer A's prior involvement in the government's forensic investigation of the same dam failure, and the contractor's motivation is to exploit Engineer A's privileged access to the government's investigative strategy and findings. Engineer A must determine whether disclosure of the prior engagement is an independent ethical obligation that arises before any retainer agreement is signed.
At the first moment of contact with the contractor, affirmatively disclose the prior government retention in the same dam failure matter, explain the nature and scope of the confidential access gained, and decline the retainer on the basis that the conflict is irremediable — without waiting for the contractor to inquire.
Refrain from volunteering information about the prior government engagement unless the contractor specifically asks, treating disclosure as a reactive rather than proactive obligation and allowing the retainer negotiation to proceed without Engineer A raising the conflict.
Accept the contractor's retainer first and subsequently disclose the prior government engagement during the course of the engagement, treating post-acceptance disclosure as sufficient to satisfy any transparency obligation.
Former Government Forensic Consultant Approached by Adverse Party
Was Engineer A required to seek and obtain the U.S. government's explicit consent before accepting any engagement for the contractor in the same dam failure matter, and does forgoing consent-seeking constitute an independent ethical violation?
Engineer A must decide whether to seek the U.S. government's explicit consent before accepting any adverse engagement for the contractor in the same dam failure matter. The 1981 revision of NSPE Code Section III.4.b establishes that specialized knowledge acquired during a prior engagement may not be used adversarially without the former client's explicit consent. Engineer A has not sought such consent and must determine whether consent-seeking is a mandatory prerequisite or merely a procedural option.
Contact the U.S. government as former client, fully disclose the contractor's solicitation and the nature of the proposed adverse engagement, and obtain explicit written consent before taking any steps toward accepting the contractor's retainer — recognizing that Section III.4.b makes such consent a mandatory prerequisite, not a discretionary courtesy.
Proceed without seeking the government's consent, treating the formal termination and full payment of the prior engagement as having extinguished all continuing obligations to the former client, and relying on pre-1981 precedent under which post-engagement adverse participation was permissible without consent.
Accept the contractor's retainer first and subsequently notify the U.S. government of the adverse engagement, treating retroactive notification as functionally equivalent to the consent prerequisite established by Section III.4.b.
Post-Engagement Engineer Considering Adverse Participation Without Former Client Consent
Does Engineer A's ethical obligation to decline the contractor's engagement extend to all capacities — including non-testifying consulting expert roles — or is the prohibition narrowly confined to the testifying expert witness function?
Engineer A must assess whether the ethical prohibition on adverse participation extends beyond the specific role of testifying expert witness to encompass any capacity in which Engineer A might serve the contractor — including as a non-testifying consulting expert. The contractor may argue that a purely consulting role, in which Engineer A does not testify and does not directly present government-acquired findings, avoids the switching-sides prohibition. Engineer A must determine whether the prohibition is role-specific or categorical.
Refuse to serve the contractor in any role — whether as testifying expert, non-testifying consulting expert, technical advisor, or reviewer — recognizing that the confidential forensic knowledge gained during the government engagement would inevitably inform any technical contribution Engineer A makes to the contractor's claim, regardless of the formal label attached to the engagement.
Decline the testifying expert witness role but accept a behind-the-scenes consulting engagement for the contractor, reasoning that the switching-sides prohibition applies specifically to adversarial testimony and that a consulting role in which Engineer A does not appear before a tribunal avoids the ethical violation.
Accept a narrowly scoped engagement limited to reviewing publicly available documents and published reports about the dam failure, reasoning that work confined to public information does not implicate the confidential government findings and therefore falls outside the scope of the prohibition.
Former Government Forensic Consultant Evaluating Scope of Adverse Participation Prohibition
Would the ethical prohibition on Engineer A's adverse participation for the contractor be eroded or extinguished if Engineer A's government engagement had concluded years earlier and the confidential forensic findings had since become publicly available through litigation discovery or published government reports?
Engineer A must evaluate whether the passage of time and the public availability of formerly confidential government forensic findings — through litigation discovery or published reports — would alter the ethical calculus and potentially permit adverse participation for the contractor. Engineer A may reason that once confidential information enters the public domain, the confidentiality rationale for the switching-sides prohibition is extinguished and the prohibition no longer applies.
Recognize that the switching-sides prohibition is not eroded by the passage of time or the public availability of formerly confidential findings, because the prohibition is grounded not only in confidentiality but also in the irremediable structural compromise of Engineer A's objectivity — which persists regardless of whether the underlying findings are now publicly known — and decline the contractor engagement on that independent basis.
Treat the public availability of formerly confidential government forensic findings as extinguishing the confidentiality rationale for the prohibition, and accept the contractor's retainer on the ground that Engineer A's testimony would be based solely on publicly available information rather than privileged government knowledge.
Apply a temporal exception to the switching-sides prohibition, reasoning that after a sufficient number of years the professional relationship with the former client has sufficiently attenuated that the loyalty and confidentiality obligations no longer bar adverse participation in the same matter.
Former Government Forensic Consultant Assessing Temporal and Publicity Exceptions to Switching-Sides Prohibition
Dam Failure Occurs (Event 1) → Government Retainer Established (Event 2)
Divided Loyalty vs Terminated Relationship Ethical Equivalence Recognition Engineer A Dam Failure
Divided Loyalty vs Terminated Relationship Ethical Equivalence Recognition Capability
Engineer A required the capability to recognize that the termination of the government engagement did not bring the situation within the principle that loyalties are not divided when a prior relationship has ended — because that principle applies to concurrent dual roles without confidential information transmission, not to sequential forensic engagements where government-side confidential materials had already been received and processed.
Engineer A needed to distinguish between the terminated-relationship-no-divided-loyalty principle and the sequential-forensic-engagement side-switching prohibition
Correct application of the distinction between concurrent dual-role termination and sequential forensic engagement side-switching when evaluating the contractor's retainer
Dual Role Appearance of Impropriety Invoked in Case 76-3 Advisory Context
Forensic Expert Non-Advocate Status in Civil Litigation
In Case 76-3, the engineer who appeared before the zoning board on behalf of the developer while simultaneously serving as county advisor gave the appearance of trying to be on both sides of a public policy issue — the paradigmatic appearance-of-impropriety concern arising from dual-role service in adversarial proceedings
The appearance-of-impropriety concern is distinct from and less severe than the specialized-knowledge confidentiality concern; it can be resolved by resignation, whereas the confidentiality concern requires former client consent
Dual Role Appearance of Impropriety Avoidance
he at best gave the appearance of trying to be on both sides of a public policy issue
The appearance concern was the operative ethical problem in Case 76-3; the present case adds the specialized-knowledge concern that makes the ethical violation more serious and not curable by resignation
he was in fact a paid advocate of a private interest in open conflict with the engineering opinions of the government
when the engineer appeared before the body which had jurisdiction over the subject matter on behalf of a party whose position was adverse to that of the government while at the same time being an advisor to the government, he at best gave the appearance of trying to be on both sides of a public policy issue
Engineer Confidentiality and Loyalty Obligation Standard
Engineer A in evaluating obligations to former client (U.S. government)
Engineer A obtained confidential technical findings and government litigation-sensitive information during the dam failure study; this standard governs the ongoing duty not to use that information to benefit the contractor, who is now adverse to the government
Engineer A Confidential Government Investigation Information Held
From commencement of the government investigation through any subsequent engagement — persists indefinitely as confidential information does not expire
Engineer A is retained by the U.S. government to study the causes of a dam failure
Engineer A's possession of confidential technical findings, government strategies, and investigative data obtained during the dam failure study
Not terminated — confidential information obligations persist post-engagement
Later Engineer A is retained by the contractor on this project, who has filed a claim against the U.S. government
Engineer A begins work on the government-retained dam failure investigation, gaining access to non-public technical and strategic information
{'license': 'Professional Engineer (implied)', 'specialty': 'Forensic dam failure investigation', 'conflict_type': 'Switching sides — retained by adverse party in related claim after prior government engagement'}
Initially retained by the U.S. government to study the causes of a dam failure; subsequently retained by the contractor who filed a claim against the U.S. government for additional compensation arising from the same project — creating an irresolvable conflict of interest due to confidential information and findings obtained during the first engagement.
{'type': 'first_client', 'target': 'U.S. Government Dam Failure Investigation Client'}
{'type': 'second_client_adverse', 'target': 'Contractor Adverse Claim Client'}
Dam Failure Forensic Investigation Engineer
Engineer A Initial Government Retention — Dam Failure Investigation
From the moment of retention by the U.S. government through the completion of the dam failure study
Engineer A's professional relationship with the U.S. government as retained investigator of dam failure causes
Completion of the government engagement (implied); superseded by cross-side retention
U.S. government retains Engineer A to study causes of dam failure
Engineer A Structural Conflict of Interest — Dual Adverse Retention in Same Matter
From the moment of contractor retention through resolution of the conflict (declination or completion)
Engineer A's irresolvable conflict between obligations to the U.S. government (original client) and the contractor (adverse claimant) in the same dam failure matter
Engineer A withdrawing from one or both engagements, or full resolution of the underlying dispute
Engineer A accepts retention by the contractor while holding confidential information from the government in the same matter
Engineer A being paid in full by U.S. government before Engineer A's retention by contractor
Engineer A's firsthand knowledge gained during government retention before Engineer A's potential expert testimony for contractor
Engineer A's retention by U.S. government before Engineer A's retention by contractor
Evolving Professional Standard Awareness Engineer A 1981 Code Revision
Evolving Professional Standard Awareness Capability
Engineer A was required to be aware that the NSPE Code of Ethics was revised in July 1981 to add Section III.4.b, imposing a stricter standard on adverse participation in proceedings where specialized knowledge was gained on behalf of a former client, and to apply this revised standard rather than the pre-1981 standard when evaluating the permissibility of the contractor engagement
Dam failure forensic investigation; Engineer A's conduct evaluated under the 1981 revised Code rather than the 1976 Code under which Case 76-3 was decided
BER's identification of the 1981 Code revision as the dispositive distinction between Case 76-3 and the present case
Section III.4.b. amended and refined the older Code Section 7
Expert Witness Firsthand Knowledge Privileged Information Contamination Avoidance Engineer A Dam Failure
Engineer A's firsthand knowledge of the dam failure causation was acquired entirely during his government-retained forensic investigation; as expert witness for the contractor, he would be required to state opinions based on that same firsthand knowledge, creating irremediable risk of disclosing privileged government information.
Expert Witness Firsthand Knowledge Privileged Information Contamination Avoidance Obligation
Engineer A was obligated to recognize that his expert witness testimony for the contractor — necessarily based on his firsthand knowledge and understanding of the dam failure facts acquired during the government engagement — would inevitably risk touching upon privileged, specialized, and confidential knowledge gained while retained by the U.S. government, including potentially being called upon to give opinions about the very facts in which he was involved as a government consultant, and to decline the engagement on this independent ground.
At the time of accepting the contractor's retainer and throughout any expert witness engagement
As an expert witness, Engineer A would be required to state his opinion based upon his firsthand knowledge and on facts of record.
There can be no doubt that Section III.4.b. was enacted to prevent engineers from disclosing such information.
Expert Witness Privileged Information Contamination Risk Engineer A Dam Failure
Expert Witness Privileged Information Contamination Risk Self-Assessment Capability
Engineer A was required to assess that his proposed expert witness testimony for the contractor would necessarily draw upon privileged, specialized, and confidential knowledge gained during his prior forensic engagement for the U.S. government, including firsthand knowledge of the very facts at issue in the contractor's claim
Dam failure forensic investigation; Engineer A's prior firsthand knowledge of dam failure facts would contaminate any expert testimony rendered for the adverse contractor
BER's analysis that Engineer A's expert opinions would inevitably touch upon privileged knowledge from the government engagement, including facts in which he was personally involved as a consultant
Forensic Engineer Pre-Acceptance Same-Matter Prior Engagement Conflict Screening — Engineer A Contractor Dam Failure
The sequential structure of the case — government retention followed by contractor solicitation in the same dam failure matter — made the pre-acceptance conflict screening both mandatory and dispositive: the screening would have revealed the absolute bar to acceptance.
Forensic Engineer Pre-Acceptance Same-Matter Prior Engagement Conflict Screening Constraint
Before accepting the contractor's retainer, Engineer A was required to conduct a conflict screening to determine whether Engineer A had previously been retained by any party in the same dam failure matter — and, having identified the prior government engagement involving access to confidential investigative findings, Engineer A was required to recognize the irresolvable conflict of interest and decline the contractor's retainer.
NSPE Code conflict of interest provisions; BER Case No. 85-4
At the pre-acceptance stage of the contractor's solicitation
Forensic Expert Paid Advocacy Non-Equivalence to Hired Gun Prohibition — Engineer A Contractor Dam Failure
The contractor's retention of Engineer A in an adversarial claim context raises the risk that Engineer A would be expected to function as a 'hired gun' for the contractor's position — a role that is independently prohibited regardless of the switching-sides bar.
Forensic Expert Paid Advocacy Non-Equivalence to Hired Gun Prohibition Constraint
Even if Engineer A were to accept the contractor's retainer (which is itself ethically prohibited), Engineer A would not be permitted to treat the contractor's fee as creating an obligation to produce analysis favorable to the contractor's claim against the U.S. government; Engineer A's duty as a forensic expert is to render objective, technically grounded professional opinions regardless of whether those opinions align with the contractor's legal interests.
NSPE Code Section II.3.a; BER Case No. 85-4
Throughout any forensic engagement, including the contractor's proposed engagement
Forensic Expert Witness Objectivity Structurally Compromised Engineer A Contractor
Forensic Expert Witness Objectivity Maintenance Capability
Engineer A was required to recognize that accepting the contractor's retainer in the same dam failure matter structurally compromised his ability to maintain the objectivity required of a forensic expert witness, given his prior access to the government's confidential forensic findings
Dam failure forensic investigation; Engineer A's prior government engagement structurally compromised his objectivity as a contractor expert witness
BER's analysis that Engineer A's expert testimony would be based on firsthand knowledge from the government engagement, making true objectivity impossible
we have no doubt that the expert testimony offered by Engineer A in a legal proceeding would constitute 'particular, specialized knowledge gained on behalf of a former client or employer.'
Forensic Expert Witness Objectivity Structurally Compromised Engineer A Contractor Engagement
Engineer A's prior forensic investigation on behalf of the U.S. government in the same dam failure matter means that Engineer A has already formed technical conclusions about the causes of the failure. The contractor's retainer in an adverse claim against the government creates an irreconcilable tension with the objectivity required of a forensic expert witness.
Forensic Expert Witness Objectivity in Adversarial Proceeding Obligation
Engineer A was obligated to recognize that accepting the contractor's retainer in the same dam failure matter structurally compromised Engineer A's ability to render an objective forensic opinion, because the prior government engagement has already shaped Engineer A's technical conclusions and the contractor's expectation of a favorable report is itself evidence that independent objectivity cannot be credibly maintained.
At the time of accepting the contractor's retainer and throughout any forensic engagement for the contractor
Forensic Expert Witness Objectivity Structurally Compromised Recognition Engineer A Contractor Dam Failure
Engineer A required the capability to recognize that accepting the contractor's retainer in the same dam failure matter structurally compromised Engineer A's ability to maintain forensic expert witness objectivity, because prior access to government-side confidential information created an irremediable bias in any subsequent contractor-side analysis.
Engineer A's prior government forensic engagement in the same dam failure matter created a structural objectivity compromise that could not be remedied by accepting the contractor's retainer
Recognition that the structural compromise of objectivity arising from prior government-side access was not curable by any pledge of independence or professional commitment to impartiality
Forensic Side-Switching Conflict Assessment Engineer A Dam Failure
Forensic Expert Side-Switching Conflict Assessment Capability
Engineer A required the capability to assess whether accepting retention by the contractor — the adverse party in the same dam failure matter — after having been retained by the U.S. government created an impermissible conflict of interest, including identifying the confidential information and investigative findings accessed during the government engagement that would be exploited in the contractor engagement.
Engineer A was first retained by the U.S. government to study dam failure causes, then approached by the contractor who filed a claim against the government for additional compensation in the same matter
Evaluation of whether switching from government-side forensic investigator to contractor-side forensic expert in the same dam failure claim was ethically permissible
Forgoes Consent-Seeking from Former Client
Forgoes Consent-Seeking from Former Client (Action 4) → Code Violation Instantiated (Event 6)
Former Client Adversarial Consent Prerequisite Engineer A U.S. Government Dam Failure
Engineer A acquired particular specialized knowledge — the technical causes of the dam failure — on behalf of the U.S. government. The contractor's claim against the U.S. government for additional compensation is directly adverse to the government's interests in the same matter. No consent from the U.S. government is indicated in the case facts.
Former Client Adversarial Proceeding Consent Prerequisite Obligation
Engineer A was obligated to obtain the informed consent of the U.S. government — the former client in whose service Engineer A gained specialized knowledge of the dam failure causes — before accepting any engagement adverse to the U.S. government in the contractor's claim arising from the same dam project.
Before accepting the contractor's retainer; no retroactive cure is available after acceptance
Former Client Adversarial Participation Prohibition Invoked Against Engineer A
Engineer A acquired particular specialized knowledge — the technical causes of the dam failure — on behalf of the U.S. government (former client), and then accepted retention by the contractor (adversary of the former client) in a claim arising from the same dam failure, without any indication of consent from the U.S. government
The specialized forensic knowledge of dam failure causation acquired during the government engagement is precisely the knowledge the contractor seeks to exploit; this is the core harm the prohibition is designed to prevent
Former Client Adversarial Participation Prohibition
The prohibition bars participation absent consent; the specialized knowledge acquired cannot be 'unlearned' and its use in an adverse proceeding constitutes a fundamental breach of the former client relationship
Former Client Adversarial Participation Prohibition Invoked Against Engineer A Under Section III.4.b
At-Will Employment Symmetry and Engineer Mobility Right
Engineer A's retention by the contractor to testify as an expert witness against the U.S. government — his former client — in a claim arising from the very dam failure project on which he had served the government, without the government's consent, constitutes participation in an adversary interest using particular specialized knowledge gained on behalf of a former client
Section III.4.b creates a consent requirement that survives full payment and apparent termination of the prior engagement; the specialized knowledge bar is project-specific and proceeding-specific, not merely relationship-specific
Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained a particular specialized knowledge on behalf of a former client or employer.
The consent requirement is absolute absent affirmative consent from all interested parties; the absence of any record of government consent is dispositive
There is nothing in the record to indicate that Engineer A was given the consent of his former client, the U.S. government, to represent the interests of the contractor in its claim against the government for additional compensation.
Former Client Adversarial Proceeding Consent Prerequisite — Engineer A U.S. Government Dam Failure
The U.S. government is Engineer A's former client in the same dam failure matter; the contractor's claim is directly adverse to the government; no indication of government consent to Engineer A's cross-side participation is present in the case facts.
Former Client Adversarial Proceeding Consent Prerequisite Constraint
Engineer A may not participate in, or represent an adversarial interest against, the U.S. government in connection with the dam failure proceeding — in which Engineer A gained specialized knowledge on behalf of the government — unless and until Engineer A first obtains the permission and consent of the U.S. government as the former client; the absence of such consent operates as an absolute bar to Engineer A's acceptance of the contractor's retainer.
Throughout the duration of the contractor's claim against the U.S. government
Former Client Consent Prerequisite Engineer A U.S. Government Dam Failure Adversarial Participation
Engineer A sought to testify as expert witness for the contractor against the U.S. government without obtaining the government's consent, despite having gained specialized knowledge while serving the government
Engineer A was prohibited from participating in or representing an adversarial interest in the dam failure proceeding — in which Engineer A had gained particular specialized knowledge on behalf of the U.S. government — without first obtaining the consent of all interested parties, including the U.S. government as former client.
NSPE Code Section III.4.b (1981 revision)
Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained a particular specialized knowledge on behalf of a former client or employer
At the time of accepting the contractor's retainer and throughout the adversarial proceeding
There is nothing in the record to indicate that Engineer A was given the consent of his former client, the U.S. government, to represent the interests of the contractor
Former Client Duty of Trust Loyalty Duration Assessment Engineer A Dam Failure
Former Client Duty of Trust and Loyalty Duration Assessment Capability
Engineer A was required to assess how long his duties of trust and loyalty to the U.S. government persisted after the conclusion of his paid forensic engagement, and to apply a conservative standard recognizing that those duties continued through the duration of the dam failure proceeding
Engineer A paid in full and no longer retained by government, yet BER found ongoing loyalty obligations in the same proceeding
BER's analysis that Engineer A's obligations to the former client persisted notwithstanding full payment and apparent termination of the retainer
Under the facts of this case, Engineer A was paid in full for his services to the government and apparently was no longer retained by the government and was free to oppose its position on behalf of an adverse party.
for those reasons we find that it would be unethical for an engineer who was retained by the U.S. government to be retained as an expert witness for a contractor who filed a claim against the U.S. government for additional compensation.
Former Client Duty of Trust and Loyalty Duration Assessment Engineer A U.S. Government Dam Failure
Engineer A required the capability to assess how long duties of trust, loyalty, and confidentiality to the U.S. government as former client persisted after the government engagement concluded, applying a conservative standard that treated residual loyalty obligations as ongoing while the dam failure claim proceeding remained active.
Engineer A's government engagement had concluded before the contractor's retainer was offered, requiring assessment of whether former-client loyalty obligations had expired
Evaluation of the temporal scope of post-engagement loyalty obligations to the U.S. government when assessing the contractor's retainer offer
Government-Retained Forensic Engineer Adverse Contractor Engagement Prohibition Engineer A Dam Failure Discussion
Discussion section confirms the Board's conclusion that it would be unethical for Engineer A — retained by the U.S. government to study dam failure causes — to subsequently serve as expert witness for the contractor filing a claim against the government for additional compensation on the same project.
Government-Retained Forensic Engineer Adverse Contractor Engagement Prohibition Obligation
Engineer A was obligated to refrain from accepting retention by the contractor as expert witness in the contractor's claim against the U.S. government, because Engineer A had previously been retained by the U.S. government to forensically investigate the same dam failure and thereby gained access to confidential investigative findings and specialized knowledge belonging to the government.
for those reasons we find that it would be unethical for an engineer who was retained by the U.S. government to be retained as an expert witness for a contractor who filed a claim against the U.S. government for additional compensation
Upon being approached by the contractor for retention as expert witness
we have no doubt that the expert testimony offered by Engineer A in a legal proceeding would constitute 'particular, specialized knowledge gained on behalf of a former client or employer'
Government Forensic Findings Confidentiality Non-Disclosure Engineer A Contractor
Engineer A developed or received access to confidential forensic findings on behalf of the U.S. government during the dam failure investigation. Accepting the contractor's retainer in the same matter creates a structural risk that those confidential findings will be used — consciously or unconsciously — to benefit the contractor's adverse claim.
Government Forensic Investigation Confidential Findings Non-Disclosure to Adverse Contractor Obligation
Engineer A was obligated to refrain from disclosing, using, or allowing the confidential forensic findings, investigative methodologies, and technical conclusions developed during the U.S. government engagement to inform or benefit the contractor's adverse claim against the government in the same dam failure matter.
From the conclusion of the government engagement onward; obligation persists indefinitely with respect to the specific confidential findings developed during that engagement
Independent Report Framing Non-Cure of Same-Matter Conflict — Engineer A Contractor Dam Failure
The contractor's framing of a new, independent forensic engagement cannot dissolve the ethical bar created by Engineer A's prior access to the government's confidential dam failure investigation data.
Independent Report Framing Non-Cure of Same-Matter Conflict Constraint
Any characterization by the contractor that Engineer A's proposed forensic engagement would be 'independent and separate' from the prior government engagement does not cure, mitigate, or override the irresolvable conflict of interest created by Engineer A's prior confidential access to the U.S. government's investigative findings; Engineer A is prohibited from accepting the contractor's retainer on the basis that a new independent report will be prepared.
NSPE Code Section II.4.b; BER Case No. 85-4
At the time of and following the contractor's solicitation of Engineer A
Independent Report Pledge Non-Cure Engineer A Contractor Dam Failure
The case discussion addresses whether Engineer A's ability to provide an independent report for the contractor could resolve the conflict arising from prior government retention in the same matter
Any pledge by Engineer A to provide a separate and independent forensic analysis for the contractor would not cure the ethical conflict created by Engineer A's prior confidential access to the U.S. government's investigative findings and strategies in the same dam failure matter.
There is a danger that Engineer A's opinions, based on his firsthand knowledge and his understanding of the facts of record, would touch upon privileged, specialized, and confidential knowledge gained while he was retained by the U.S. government
At the time of and following acceptance of the contractor's retainer
he may be called upon to give an opinion as to the very facts with which he was involved as a consultant with the government
Independent Report Pledge Non-Cure Side-Switching Engineer A Dam Failure
Independent Report Pledge Non-Cure of Side-Switching Conflict Recognition Capability
Engineer A required the capability to recognize that any pledge to provide a separate and independent forensic analysis for the contractor would not cure the ethical conflict created by prior access to the U.S. government's confidential forensic information, because the promise of independence cannot overcome the cognitive impossibility of mentally segregating previously acquired confidential knowledge.
The contractor's retainer of Engineer A raised the question of whether a pledge of independence could cure the conflict arising from Engineer A's prior government-side forensic engagement
Assessment of whether an independent-report commitment could serve as an adequate ethical remedy for the side-switching prohibition in the dam failure matter
Independent Report Pledge Non-Cure Switching Sides Engineer A Dam Failure
The case facts do not indicate whether Engineer A made such a pledge, but the obligation applies as a matter of principle: the structural impossibility of independent analysis after a same-matter switching-sides engagement means that no pledge of independence can serve as an ethical cure.
Independent Report Pledge Non-Cure of Same-Matter Switching Sides Obligation
Engineer A was obligated to recognize that any pledge to provide a separate and independent forensic analysis for the contractor would not cure the ethical conflict created by the prior government engagement in the same dam failure matter, because Engineer A cannot credibly segregate prior government-side knowledge from any new analysis performed for the contractor.
At the time of accepting or considering the contractor's retainer
Loyalty Obligation of Engineer A to Former Client U.S. Government
Engineer A's acceptance of the contractor's retainer in a claim directly adverse to the U.S. government — the former client in the same dam failure matter — constitutes a breach of the residual loyalty obligation that persists after the formal engagement ends, because the new engagement directly exploits the position and knowledge gained in the prior relationship
Loyalty to a client does not terminate upon completion of the engagement when the engineer subsequently seeks to use the fruits of that engagement against the former client; the temporal scope of loyalty extends to prohibit adverse participation in the same matter
Residual loyalty to the U.S. government as former client reinforces the switching sides prohibition; the two principles converge on the same outcome — Engineer A must decline the contractor's retainer
Loyalty Principle Invoked for Former Client Government Protection
Contractor's interest in retaining Engineer A
Engineer A's duty of loyalty to his former client — the U.S. government — persists in the form of the prohibition on adverse participation using specialized knowledge acquired during the engagement; loyalty does not end with payment and termination but continues as a bar to weaponizing the former client's own information against it
Post-engagement loyalty is narrower than active-engagement loyalty but still operative; it prohibits the specific act of adverse participation using specialized knowledge, even if it does not prohibit all future dealings with parties adverse to the former client
Residual post-engagement loyalty prevails over engineer mobility when the specific project and specialized knowledge are directly implicated in the adverse proceeding
Multi-Party Forensic Prior Relationship Proactive Disclosure Engineer A Dam Failure
Multi-Party Forensic Prior Relationship Proactive Disclosure Capability
Engineer A required the capability to proactively disclose the prior government forensic engagement to the contractor at or before the time of accepting the retainer, enabling the contractor to assess the conflict — and, if proceeding, to disclose the prior relationship to the U.S. government as the adverse party whose consent was required.
Engineer A's prior government engagement was material to the contractor's assessment of potential conflicts and to the U.S. government's ability to provide or withhold consent
Proactive disclosure of the prior government engagement to the contractor when approached for retention in the same dam failure matter
National Society of Professional Engineers
Engineer A in evaluating propriety of accepting the contractor engagement
Primary normative authority governing whether Engineer A may ethically accept retention by the contractor after having been retained by the U.S. government to study the same dam failure — directly implicating canons on conflict of interest, loyalty, and impartiality
Non-Absolute Former Client Loyalty Boundary Recognition Engineer A Dam Failure
Non-Absolute Former Client Loyalty Boundary Recognition Capability
Engineer A required the capability to recognize that while former client loyalty to the U.S. government was not absolute and did not create a perpetual bar to all adverse engagement, the same-matter subject-matter relatedness of the contractor's claim meant that the loyalty obligation was at its strongest and the adverse engagement was impermissible.
Engineer A needed to apply the bounded loyalty framework to determine whether the contractor's retainer fell within the permissible unrelated-matter exception or the impermissible same-matter prohibition
Application of the bounded loyalty framework to correctly determine that the same-matter relatedness of the contractor's claim triggered the strongest form of former client loyalty obligation
Objectivity Principle Invoked for Expert Witness Independence
Engineer A's role as expert witness requires him to state opinions based on firsthand knowledge and facts of record; however, the prior retention by the government means his objectivity is structurally compromised because his firsthand knowledge was acquired in service of the adverse party, making genuine independent analysis impossible
Objectivity in expert witness testimony requires not merely subjective impartiality but structural independence from the interests of the parties; an engineer whose knowledge base was built in service of one party cannot credibly claim structural independence when testifying against that party
The structural impossibility of objectivity when specialized knowledge was acquired for the adverse party reinforces the Section III.4.b prohibition
The engineer was doing more than offering his expertise in engineering matters as an aid to a fuller understanding by the tribunal; he was in fact a paid advocate of a private interest in open conflict with the engineering opinions of the government.
Objectivity Principle Structurally Compromised for Engineer A in Contractor Engagement
Dam failure forensic investigation engagement
Engineer A cannot render an objective forensic opinion on dam failure causation for the contractor because the prior government engagement has already shaped Engineer A's technical conclusions and exposed Engineer A to the government's confidential evidentiary and strategic position — making truly independent, objective analysis for the adverse party structurally impossible
Objectivity is not merely a matter of good intentions; where prior engagement has exposed an engineer to one party's confidential information in the same adversarial matter, structural bias is unavoidable regardless of the engineer's subjective intent to be impartial
The structural impossibility of objectivity in this scenario means the engagement must be declined; the Objectivity principle, combined with the switching sides prohibition, creates a categorical bar
Opposing-Party Retention Motivated by Prior Confidential Access Non-Acceptance — Engineer A Contractor Dam Failure
The contractor filed a claim against the U.S. government and then sought to retain the very engineer who had studied the dam failure for the government — the sequential structure makes the motivational basis for the retention transparent.
Opposing-Party Retention Motivated by Prior Confidential Access Non-Acceptance Constraint
Engineer A must recognize that the contractor's motivation for seeking Engineer A's retention is transparently linked to Engineer A's prior access to the U.S. government's confidential investigative findings and strategy; this motivational structure itself constitutes an ethical bar to acceptance, and Engineer A may not treat the contractor's framing of the engagement as 'independent' as sufficient to override this constructive awareness.
BER Case No. 85-4; NSPE Code conflict of interest provisions
At the point of the contractor's solicitation of Engineer A
Opposing Party Retention of Engineer A Motivated by Prior Government Access
From the contractor's retention of Engineer A onward
Opposing Party Retention Motivated by Prior Access State
The contractor's motivation for retaining Engineer A is transparently linked to Engineer A's prior access to the U.S. government's confidential investigative findings and strategies in the same dam failure matter
Engineer A declining the engagement or the dispute being resolved
Contractor, aware that Engineer A investigated the dam failure for the government, retains Engineer A to support its adverse claim against that same government
Paid Advocacy Expert Witness Role Distinction Engineer A Dam Failure Case 76-3
Paid Advocacy Versus Expert Witness Role Distinction Recognition Capability
Engineer A was required to recognize that his proposed role as expert witness for the contractor was in substance a paid advocacy role adverse to the government, not an independent expert witness role, and that this distinction triggered the ethical obligation to decline the engagement or first resign from any advisory role
Dam failure forensic investigation; Engineer A previously retained by U.S. government, subsequently approached by adverse contractor for expert witness retention
Analysis of whether Engineer A's contractor retention constituted paid advocacy versus independent expert testimony, as framed in the BER's discussion of Case 76-3
it would be incorrect to accept the engineer's role as an expert witness in the ordinary sense of that kind of professional service arrangement
Paid Advocacy Versus Expert Witness Role Distinction Recognition Case 76-3 County Engineer
Case 76-3: Engineer testified in support of developer's zoning petition at the same hearing where county engineering reports recommended denial; engineer was simultaneously under retainer to the county as advisor.
Engineer in Case 76-3 (county water/sewage advisor and developer expert witness)
Paid Advocacy Versus Expert Witness Role Distinction Recognition Obligation
The engineer was obligated to recognize that his testimony at the zoning hearing on behalf of the developer — while simultaneously serving as county advisor — constituted paid advocacy for a private interest in open conflict with the government's engineering position, not the ordinary offering of independent engineering expertise as an aid to the tribunal.
At the time of accepting the developer's retainer for expert witness services and prior to testifying
The engineer was doing more than offering his expertise in engineering matters as an aid to a fuller understanding by the tribunal; he was in fact a paid advocate of a private interest in open conflict with the engineering opinions of the government
Paid Advocacy Versus Objective Expert Witness Role Distinction County Engineer Case 76-3
Engineer under retainer with county as advisor simultaneously testified as expert witness for developer at zoning hearing adverse to county's engineering position
Paid Advocacy Versus Objective Expert Witness Role Distinction Constraint
The county engineer who testified at the zoning hearing on behalf of the developer — while simultaneously serving as advisor to the county — was not functioning as a neutral expert witness but as a paid advocate of a private interest in open conflict with the engineering opinions of the government, and was required to resign from the advisory role before testifying adversarially.
At the time of the zoning hearing testimony
if he chose to oppose that position on behalf of an adverse party, he could ethically do so by first resigning from his role as advisor to the county
Post-Code-Amendment BER Precedent Supersession Case 76-3 to Engineer A Dam Failure
The BER explicitly distinguished Case 76-3 on the ground that it was decided under the 1976 Code lacking Section III.4.b, and applied the 1981 revised code to Engineer A's post-revision conduct
Post-Code-Amendment BER Precedent Supersession Constraint
BER Case 76-3 — decided under the 1976 Code of Ethics which contained no provision equivalent to Section III.4.b — could not serve as controlling authority for Engineer A's conduct, which occurred after the 1981 revision adding Section III.4.b; the revised code's stricter standard governed Engineer A's situation notwithstanding the factual similarity to Case 76-3.
NSPE Code Section III.4.b (1981 revision); BER Case 76-3 (superseded as to this issue)
Case 76-3 was decided under the 1976 Code of Ethics which made no mention of an engineer's ethical obligation to refrain from representing an adverse interest in a proceeding
Applicable to all conduct occurring after July 1981 when Section III.4.b was added
Under the revised Code section it is clear that Engineer A's action was in violation of Section III.4.b
it would appear that Engineer A could ethically represent the interests of the contractor as an expert witness... However, there is one important distinction between Case 76-3 and the case presented here
Post-Engagement Termination Same-Matter Adverse Expert Witness Declination Engineer A Dam Failure
Engineer A was paid in full and formally released from the government engagement before accepting the contractor's retainer; under the pre-1981 code and Case 76-3 precedent, this termination might have been sufficient to permit adverse participation; however, the 1981 revision of Section III.4.b established a stricter standard applicable to Engineer A's conduct.
Post-Engagement Termination Same-Matter Adverse Expert Witness Declination Obligation
Engineer A was obligated to decline the contractor's retainer as expert witness against the U.S. government in the dam failure claim, notwithstanding that Engineer A had been paid in full for his government services and was formally no longer under retainer, because the 1981 revision of NSPE Code Section III.4.b establishes that termination of the prior engagement does not extinguish the prohibition on adverse participation using specialized knowledge gained for the former client.
Upon being approached by the contractor for retention as expert witness, after completion of the government engagement
Given the unambiguous language of Case 76-3 noted above, it would appear that Engineer A could ethically represent the interests of the contractor as an expert witness in its claim against the government for additional compensation.
Post-Termination Adversarial Retention Motivation Awareness Non-Exculpation — Engineer A Contractor Dam Failure
The contractor filed a claim against the U.S. government and then retained the engineer who had studied the failure for the government; the sequential structure makes constructive awareness of the contractor's motivation unavoidable.
Engineer A cannot invoke naivety about the contractor's motivations as an exculpatory defense for accepting the contractor's retainer; the sequence of events — government retention, access to confidential dam failure investigation data, and subsequent contractor solicitation in the same matter — creates constructive awareness of the motivational basis for the new retention, and Engineer A may not treat subjective unawareness of the contractor's strategic purpose as sufficient basis for ethical permissibility.
Proceeding-Duration Former Client Loyalty Minimum Floor — Engineer A U.S. Government Dam Failure
The contractor's claim against the U.S. government is the same matter in which Engineer A served the government; the proceeding's active status constitutes the non-negotiable minimum temporal floor below which Engineer A's loyalty duty cannot be extinguished.
Proceeding-Duration Former Client Loyalty Minimum Floor Constraint
Engineer A's duty of trust and loyalty to the U.S. government — the former client in whose service Engineer A gained specialized knowledge of the dam failure — persists at minimum for the full duration of the contractor's active claim against the government; Engineer A may not treat the formal termination of the government engagement as a discharge of loyalty obligations while the same proceeding remains active.
NSPE Code Section III.4.b; BER Case No. 85-4
For the full duration of the contractor's claim against the U.S. government arising from the dam failure
Proceeding Duration Former Client Loyalty Persistence Engineer A Dam Failure
Proceeding-Duration Former Client Loyalty Persistence Self-Application Capability
Engineer A was required to recognize that his duties of trust and loyalty to the U.S. government persisted for at least the full duration of the dam failure proceeding, notwithstanding the conclusion of his paid engagement
Engineer A's government engagement concluded with full payment, but the dam failure proceeding continued through the contractor's claim
BER's analysis that Engineer A's obligations to the former client persisted into the contractor's claim proceeding, which arose from the same dam failure matter
Proceeding Duration Loyalty Floor Engineer A U.S. Government Dam Failure
Engineer A argued that having been paid in full and no longer retained by the government, he was free to represent the contractor — the case analysis rejects this by establishing that the proceeding's active status sets the minimum floor for loyalty obligations
Engineer A's duty of trust and loyalty to the U.S. government persisted at minimum for the full duration of the dam failure adversarial proceeding, notwithstanding that Engineer A had been paid in full and was no longer formally retained by the government.
Engineer A was paid in full for his services to the government and apparently was no longer retained by the government and was free to oppose its position on behalf of an adverse party
For the full duration of the dam failure adversarial proceeding
Proceeding Duration Loyalty Persistence Engineer A U.S. Government Dam Failure
The contractor's claim against the U.S. government for additional compensation constitutes an ongoing adversarial proceeding. Engineer A's prior government engagement in the same dam failure matter triggers a continuing loyalty obligation that persists through the conclusion of that proceeding.
Proceeding-Duration Former Client Loyalty Persistence Obligation
Engineer A was obligated to maintain a duty of trust and loyalty to the U.S. government — the former client — for at least the full duration of the contractor's claim proceeding arising from the dam failure, and therefore could not accept the contractor's adverse retainer while that proceeding remained ongoing.
From the termination of the government engagement through the conclusion of the contractor's claim proceeding against the U.S. government
Proceeding Duration Loyalty Persistence Self-Application Engineer A U.S. Government Dam Failure
Engineer A required the capability to recognize and apply the principle that duties of trust and loyalty to the U.S. government as former client persisted for at least the full duration of the dam failure claim proceeding, and to refrain from accepting the contractor's retainer while the same proceeding remained active.
The contractor's claim against the U.S. government was an active proceeding at the time Engineer A was approached for retention by the contractor
Application of the minimum standard that former client loyalty obligations endure throughout the active proceeding when evaluating the contractor's retainer offer
Progressive Ethics Code Restriction Applied to 1981 Code Revision
The 1981 revision of the NSPE Code adding Section III.4.b established a more restrictive standard for post-engagement adverse participation than the 1976 Code; Case 76-3 was correctly decided under the 1976 Code but does not control the present case, which must be evaluated under the 1981 Code's more stringent consent requirement
The evolution from Code Section 7 to Section III.4.b signals the profession's intent to extend protection beyond active advisory relationships to all post-engagement specialized knowledge situations; prior cases decided under the narrower provision are distinguished, not overruled
The Board applies the current more restrictive code while acknowledging Case 76-3's continuing validity under its own applicable code version
In July 1981, the Code of Ethics was revised. Section III.4.b. amended and refined the older Code Section 7 to read: 'Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained a particular specialized knowledge on behalf of a former client or employer.'
Is it ethical for Engineer A to be retained as an expert witness for the contractor under these circumstances?
At what point was Engineer A obligated to disclose the prior government retention to the contractor before accepting the adverse engagement, and does failure to proactively disclose constitute an independent ethical violation separate from the switching-sides prohibition?
Would the ethical outcome differ if Engineer A's government engagement had concluded years earlier and the confidential findings had become publicly available through litigation discovery or published reports — does the passage of time or public disclosure of formerly confidential information erode the switching-sides prohibition?
Is the contractor's motivation in retaining Engineer A — specifically to exploit Engineer A's privileged access to government investigative strategy and findings — itself an ethically relevant factor that Engineer A should have recognized and acted upon before accepting the engagement, even if Engineer A subjectively believed the retention was legitimate?
Does the ethical prohibition extend to Engineer A serving in any capacity for the contractor in this matter — such as a consulting rather than testifying expert — or is the prohibition specifically and narrowly confined to the expert witness role?
Does the Objectivity Principle invoked for expert witness independence conflict with the Loyalty Obligation to the former client U.S. Government — specifically, can Engineer A credibly claim to offer objective expert testimony for the contractor when that very objectivity is structurally undermined by prior confidential access to the opposing party's investigative findings and strategy?
Does the Confidentiality Principle protecting government-acquired specialized knowledge conflict with the Objectivity Principle for expert witness independence — in that Engineer A cannot simultaneously honor confidentiality obligations to the government while providing the contractor with the full, uncontaminated expert analysis the contractor is entitled to expect?
Does the Comparative Case Precedent Distinguishing Obligation applied to Case 76-3 — where resignation was identified as a prerequisite for adverse advocacy in a simultaneous dual-role scenario — conflict with the Switching Sides Prohibition as applied to the present sequential retention case, raising the question of whether the sequential nature of Engineer A's engagements makes the ethical violation more or less severe than the simultaneous dual-role situation in Case 76-3?
Does the Progressive Ethics Code Restriction applied through the 1981 Code Revision conflict with the Former Client Adversarial Participation Prohibition in a way that creates ambiguity about which standard governed Engineer A's conduct — and does the stricter post-1981 standard retroactively inform the ethical assessment of conduct that may have occurred under a more permissive prior standard?
From a deontological perspective, did Engineer A fulfill their duty of loyalty and non-betrayal to the U.S. government as a former client by accepting the contractor's retainer in the same matter, regardless of whether any confidential information was actually disclosed?
From a consequentialist perspective, did the harm to public trust in forensic engineering expertise, the integrity of government dam failure investigations, and the fairness of the adversarial proceeding outweigh any benefit Engineer A's specialized knowledge might have provided to the contractor's claim?
From a virtue ethics perspective, did Engineer A demonstrate the professional integrity, impartiality, and trustworthiness expected of a forensic expert witness by accepting a retainer from a party directly adverse to a former client in the very same matter the engineer had been engaged to investigate?
From a deontological perspective, does the absolute nature of the switching-sides prohibition under Section III.4.b mean that Engineer A's ethical violation was complete at the moment of accepting the contractor's retainer, independent of any subsequent conduct such as pledging to produce an independent report or refraining from disclosing specific confidential findings?
Would it have been ethically permissible for Engineer A to accept the contractor's retainer if the contractor's claim had involved a completely different dam project unrelated to the government investigation Engineer A had conducted?
Would the ethical outcome have differed if Engineer A had proactively sought and obtained the U.S. government's informed consent before accepting the contractor's retainer, and if so, what conditions would have needed to accompany that consent to satisfy the requirements of Section III.4.b?
Would Engineer A's acceptance of the contractor's retainer have been ethically permissible under the pre-1981 Code standard applicable in Case 76-3, and does the 1981 Code revision represent a meaningful tightening of the standard that would have changed the Board's analysis of a case like Case 76-3 had it arisen after the revision?
What if Engineer A had fully disclosed the prior government retainer to the contractor before accepting the engagement, and the contractor had retained Engineer A specifically because of that prior access to government findings — would such transparent but strategically motivated retention have cured the ethical conflict, or would the contractor's motivation itself constitute an independent bar to acceptance?
Resignation as Prerequisite for Adverse Advocacy Permissibility Applied to Case 76-3 Precedent
In Case 76-3, the Board held that an engineer simultaneously serving as county advisor could ethically oppose the county's position only by first resigning from the advisory role; this resignation-clearance mechanism was the operative ethical remedy for active dual-side participation, but it was insufficient under the 1981 Code when specialized knowledge had already been acquired
Resignation clears the appearance-of-impropriety concern arising from simultaneous dual-role service, but does not and cannot clear the specialized-knowledge confidentiality concern that Section III.4.b addresses; the two ethical problems require different remedies
Resignation as Prerequisite for Adverse Advocacy Permissibility Principle
The present case demonstrates that resignation is a necessary but not sufficient condition for ethical adverse engagement when specialized knowledge has been acquired — the additional requirement of former client consent under Section III.4.b cannot be satisfied by resignation alone
Same-Matter Adversarial Consent Prerequisite Recognition Engineer A Dam Failure
Same-Matter Adversarial Consent Prerequisite Recognition Capability
Engineer A was required to recognize that accepting the contractor's retainer in the same dam failure matter required the informed consent of the U.S. government as former client, and that the absence of such consent rendered the engagement impermissible under Section III.4.b
Dam failure forensic investigation; no consent from former client U.S. government was obtained or documented
BER's finding that there was nothing in the record to indicate Engineer A obtained the government's consent before accepting the contractor's retainer
Same-Matter Adversarial Consent Prerequisite Recognition Engineer A U.S. Government Dam Failure
Engineer A required the capability to recognize that accepting the contractor's retainer in the same dam failure matter required the informed consent of the U.S. government — the former client — and that this consent prerequisite could not be waived unilaterally by Engineer A.
Engineer A was approached by the contractor adverse to the U.S. government in the same dam failure matter in which Engineer A had previously served the government
Identification that the same-matter constraint required government consent before any adverse engagement with the contractor could be ethically permissible
Same-Matter Adverse Contractor Retainer Declination Engineer A Dam Failure
The contractor filed a claim against the U.S. government for additional compensation on the dam project. Engineer A, having previously investigated the dam failure on behalf of the government, was subsequently retained by the contractor — a per se switching-sides scenario in the same adversarial matter.
Same-Matter Adverse Contractor Retainer Declination Obligation
Engineer A was obligated to decline the contractor's retainer upon recognizing that the contractor's claim against the U.S. government arose from the same dam project in which Engineer A had previously served as the government's forensic investigator, and that the contractor's motivation for seeking Engineer A's retention was Engineer A's prior access to the government's confidential forensic findings.
Upon being approached by the contractor; no retroactive cure is available after acceptance
Same-Matter Cross-Side Forensic Retention Absolute Bar Engineer A Dam Failure
Engineer A accepted the contractor's retainer in the same dam failure matter after having served the U.S. government as forensic investigator in that same matter
Same-Matter Cross-Side Forensic Retention Absolute Bar Constraint
Engineer A was absolutely prohibited from accepting retention by the contractor — the opposing party in the same dam failure matter — regardless of whether the original government engagement was terminated, whether Engineer A's fee was paid in full, whether the new engagement was framed as independent and separate, or whether Engineer A subjectively believed he could render an objective report.
NSPE Code Section III.4.b (1981 revision); BER Case 85-4
it would be unethical for an engineer who was retained by the U.S. government to be retained as an expert witness for a contractor who filed a claim against the U.S. government for additional compensation
At the time of and following acceptance of the contractor's retainer in the dam failure matter
There is nothing in the record to indicate that Engineer A was given the consent of his former client, the U.S. government
Same-Matter Cross-Side Forensic Retention Absolute Bar — Engineer A Dam Failure Government to Contractor
Engineer A was retained by the U.S. government to study dam failure causes; the contractor subsequently filed a claim against the U.S. government and sought to retain Engineer A — the same matter, the opposing party, creating an irresolvable same-matter cross-side conflict.
Engineer A is absolutely prohibited from accepting retention by the contractor — the opposing party in the dam failure claim against the U.S. government — having previously been retained by the U.S. government to study the causes of the same dam failure, regardless of whether the original engagement was terminated, whether any fee was paid in full, or whether the new engagement is framed as independent and separate.
NSPE Code Sections II.4.b and III.4.b; BER Case No. 85-4
For the full duration of the adversarial proceeding arising from the dam failure, and beyond
Section III.4.b Consent Prerequisite Application Engineer A Dam Failure
Section III.4.b Specialized Knowledge Consent Prerequisite Application Capability
Engineer A was required to identify that NSPE Code Section III.4.b (1981 revision) prohibited him from representing the contractor's adversary interest in the dam failure proceeding without the U.S. government's consent, given that he had gained particular specialized knowledge on behalf of the government during the prior forensic engagement
Dam failure forensic investigation; Engineer A's expert witness testimony for contractor would draw on specialized knowledge gained while serving the U.S. government
Application of Section III.4.b to the facts of the dam failure case, recognizing that no consent was obtained from the former client
Section III.4.b. amended and refined the older Code Section 7 to read: 'Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained a particular specialized knowledge on behalf of a former client or employer.'
Section III.4.b Specialized Knowledge Former Client Consent Prerequisite Engineer A Dam Failure
Engineer A was retained by the U.S. government to study the causes of a dam failure; after being paid in full and released, Engineer A accepted retention by a contractor who filed a claim against the U.S. government for additional compensation on the same dam project; no consent from the U.S. government was obtained.
Section III.4.b Specialized Knowledge Former Client Consent Prerequisite Obligation
Engineer A was obligated under NSPE Code Section III.4.b to obtain the affirmative consent of all interested parties — including the U.S. government as former client — before accepting retention by the contractor as an expert witness in the contractor's claim against the government arising from the same dam project in which Engineer A gained specialized knowledge on behalf of the government.
Prior to accepting the contractor's retainer as expert witness; the 1981 Code revision (Section III.4.b) was in effect at the time of Engineer A's conduct
Sequential Party Representation Ethics Standard
Engineer A and reviewing ethics body assessing the conflict
Governs the ethical propriety of Engineer A serving first for the U.S. government and then for the contractor in an adversarial claim arising from the same dam failure project — the paradigm case of sequential adverse party representation
Sequential Opposing-Party Retention in Same Dam Failure Investigative Matter
From the contractor's retention of Engineer A onward; the structural conflict crystallizes at the moment of cross-side acceptance
Sequential Opposing-Party Retention in Same Investigative Matter State
Engineer A's sequential retention — first by the U.S. government to investigate dam failure causes, then by the contractor adverse to the government in a claim arising from the same dam failure — creating an irresolvable structural conflict rooted in the investigative-to-adversarial pipeline
Engineer A declining the contractor engagement or the claim being resolved
Contractor retains Engineer A to support its compensation claim against the U.S. government — the same government for whom Engineer A investigated the dam failure
Simultaneous Dual-Role Adverse Advocacy Resignation Prerequisite Case 76-3 County Engineer
Case 76-3: Engineer held dual retainer with county (water/sewage advisory) and developer; developer filed zoning petition; county engineering reports opposed rezoning; engineer testified in support of developer's zoning petition while still serving as county advisor.
Simultaneous Dual-Role Adverse Advocacy Resignation Prerequisite Obligation
The engineer serving simultaneously as county advisor under retainer and as expert witness for the developer at the zoning hearing was obligated to resign from the county advisory role before testifying adversely on behalf of the developer, rather than attempting to serve both roles simultaneously.
Prior to accepting the developer's retainer for expert witness testimony at the zoning hearing, or at minimum prior to appearing at the hearing
although the engineer was not required to agree with the government or even support its position at the hearing, if he chose to oppose that position on behalf of an adverse party, he could ethically do so by first resigning from his role as advisor to the county
Simultaneous Dual-Role Adverse Advocacy Resignation Prerequisite County Engineer Case 76-3
The BER in Case 85-4 reviewed Case 76-3 as analogical precedent for the principle that simultaneous advisory and adversarial roles are irreconcilable, requiring resignation before adversarial participation
County engineer (Case 76-3) — applied analogically to Engineer A
An engineer who simultaneously serves as advisor to one party and is asked to testify adversarially against that party's position must resign from the advisory role as a prerequisite to ethically participating as an adversarial expert witness — the simultaneous holding of both roles is irreconcilable and constitutes an appearance of being on both sides of a public policy issue.
NSPE Code (1976); BER Case 76-3 (analogically applied in BER Case 85-4 discussion)
At the time of accepting the adversarial expert witness engagement while holding the advisory role
The facts presented in the instant case are strikingly similar to those presented in Case 76-3 with one exception
Switching Sides Adversarial Proceeding Confidential Access Bar — Engineer A Dam Failure
Engineer A's prior access to the U.S. government's confidential investigative data and strategy during the dam failure study is the precise reason the contractor sought Engineer A's retention — making the switching-sides prohibition directly applicable.
Switching Sides Adversarial Proceeding Confidential Access Bar Constraint
Engineer A, having gained cooperative access to confidential information, investigative findings, and government case strategy during the dam failure study for the U.S. government, is prohibited from subsequently accepting retention by the contractor — the opposing party in the same adversarial proceeding — because the prior confidential access creates an irresolvable conflict of interest that cannot be cured by termination of the original engagement or by any pledge of independent analysis.
At minimum for the full duration of the contractor's claim against the U.S. government
Switching Sides Bar Engineer A Government to Contractor Dam Failure
Engineer A was retained by the U.S. government to investigate dam failure causes, then accepted retention by the contractor who filed a claim against the government for additional compensation arising from the same dam failure
Engineer A was prohibited from accepting retention by the contractor as expert witness in the contractor's claim against the U.S. government, having previously been retained by the U.S. government to investigate the dam failure — because Engineer A's prior confidential access to government investigative findings, strategies, and specialized knowledge created an irresolvable conflict that could not be cured by termination of the original engagement or payment of the final fee.
For the full duration of the dam failure adversarial proceeding and beyond
Engineer A was paid in full for his services to the government and apparently was no longer retained by the government
Switching Sides Forensic Expert Prohibition Engineer A Dam Failure Discussion
Discussion section confirms the switching-sides prohibition as applied to Engineer A's acceptance of the contractor's retainer after completing the government forensic investigation engagement.
Switching Sides Forensic Expert Prohibition Obligation
Engineer A was obligated to refrain from switching sides by accepting retention by the contractor — the opposing party in the same dam failure matter — after having been retained by the U.S. government in the same matter, because the engineer's prior access to the government's confidential forensic work product creates an irremediable conflict that cannot be cured by termination of the prior engagement.
Switching Sides Prohibition Engineer A Dam Failure Government to Contractor
Engineer A was first retained by the U.S. government to study the causes of a dam failure. The contractor on the same project subsequently filed a claim against the U.S. government for additional compensation and retained Engineer A — the same engineer who had investigated the failure on behalf of the government — creating a direct switching-sides scenario in the same adversarial matter.
Engineer A was obligated to refrain from accepting retention by the contractor who filed a claim against the U.S. government, having previously been retained by the U.S. government to forensically investigate the causes of the same dam failure, because the prior engagement gave Engineer A access to the government's confidential forensic findings and created an irremediable conflict of interest.
Upon being approached by the contractor for retention; obligation persists for the duration of the adversarial proceeding
Switching Sides Prohibition Invoked Against Engineer A Dam Failure Forensic Investigation
Contractor's interest in most knowledgeable expert
Engineer mobility and freedom to accept new engagements
Engineer A, having been retained by the U.S. government to study the causes of a dam failure and thereby gaining access to the government's confidential information and firsthand factual knowledge, subsequently accepted retention by the contractor who filed a claim against the government — placing him on the opposing side of the same proceeding in which he had served the government
The prohibition applies even after the initial engagement has been fully paid and apparently terminated, because the specialized firsthand knowledge acquired during government service cannot be credibly quarantined from subsequent adverse expert testimony
The prohibition prevails because the specialized knowledge acquired for the government is inherently non-neutral and its adverse use cannot be consented to by the government absent explicit permission
Switching Sides Prohibition Invoked Against Engineer A Dam Failure Forensic Investigation Engineer
Contractor adverse claim against U.S. government
Engineer A, having been retained by the U.S. government to forensically investigate the dam failure, subsequently accepted retention by the contractor who filed a claim against that same government in the same matter — a paradigmatic instance of switching sides in an adversarial proceeding
The prohibition applies with full force: Engineer A's initial engagement gave access to the government's confidential investigative strategy, technical findings, and evidentiary assessments; accepting the contractor's retainer in the same adversarial matter exploits that access to the former client's detriment
The switching sides prohibition is not subject to balancing — it is a categorical bar absent consent of all interested parties; no competing principle overrides it in this scenario
Terminated Engagement Confidential Information Perpetual Non-Adversarial-Use — Engineer A U.S. Government Dam Failure
The government engagement to study dam failure causes generated confidential technical findings and strategic information; the contractor's subsequent claim against the government creates the precise adversarial context in which those confidential materials must not be deployed.
Terminated Engagement Confidential Information Perpetual Non-Adversarial-Use Constraint
Engineer A's duty to protect and refrain from adversarially deploying the confidential investigative findings, methodologies, and government strategy obtained during the dam failure study for the U.S. government survives the formal termination of that engagement; Engineer A may not treat the conclusion of the government retention as a complete discharge of the duty of trust and loyalty, and the confidentiality obligation persists at minimum for the duration of the contractor's claim against the government.
Indefinitely post-termination of the government engagement, at minimum for the duration of the adversarial proceeding
Terminated Engagement Confidentiality Persistence Engineer A Government Dam Failure
Engineer A's government engagement was formally concluded with full payment, but the confidential information obtained during that engagement remained protected against adversarial use in the same matter
Engineer A's duty to protect and refrain from adversarially deploying the confidential forensic findings, investigative methodologies, and technical data obtained during the government dam failure investigation survived the formal termination of the government engagement and full payment of fees.
NSPE Code Section III.4; NSPE Code Section III.4.b (1981 revision)
Indefinitely following termination of the government engagement; at minimum for the duration of the dam failure proceeding
Termination Non-Cure Adversarial Conflict Engineer A Dam Failure
The case facts imply that Engineer A's government engagement concluded before the contractor retainer was accepted ('Later Engineer A is retained by the contractor'). The obligation requires Engineer A to recognize that this temporal gap does not extinguish the conflict.
Termination Non-Cure of Same-Matter Adversarial Conflict Obligation
Engineer A was obligated to recognize that the conclusion or termination of the government engagement did not cure the ethical conflict created by accepting the contractor's retainer in the same dam failure matter, because Engineer A's prior access to the government's confidential forensic findings cannot be erased from professional judgment regardless of the formal end of the prior engagement.
At the time of accepting the contractor's retainer and throughout the contractor engagement
Termination Non-Cure Adversarial Conflict Self-Recognition Engineer A Dam Failure
Termination Non-Cure of Same-Matter Adversarial Conflict Self-Recognition Capability
Engineer A required the capability to recognize that the conclusion or termination of the government engagement did not cure the ethical conflict created by accepting the contractor's retainer in the same dam failure matter, because confidential information had already been transmitted during the government engagement.
Engineer A's government engagement concluded before the contractor's retainer was accepted, raising the question of whether termination of the prior relationship resolved the conflict
Self-assessment of whether the end of the government retention relationship eliminated the ethical bar to accepting the contractor's retainer in the same proceeding
{'entity_type': 'Federal government agency', 'relationship_status': 'Former client, now adverse party in contractor claim'}
Retained Engineer A to study the causes of the dam failure; subsequently became the adverse party when Engineer A was retained by the contractor filing a compensation claim against the government. Holds residual interest in Engineer A's professional independence and the confidentiality of findings developed during the original engagement.
{'type': 'adverse_to', 'target': 'Contractor Adverse Claim Client'}
{'type': 'former_engineer', 'target': 'Engineer A Dam Failure Forensic Investigation Engineer'}
the contractor on this project, who has filed a claim against the U.S. government
Unrelated Matter Adverse Forensic Engagement Permissibility Assessment Engineer A Dam Failure
Unrelated Matter Adverse Forensic Engagement Permissibility Assessment Capability
Engineer A required the capability to correctly assess that the contractor's retainer was not permissible as an unrelated-matter adverse engagement — because the contractor's claim arose from the same dam failure that Engineer A had investigated for the government — distinguishing this same-matter scenario from the permissible case of adverse engagement in a wholly unrelated matter.
Engineer A needed to assess whether the contractor's retainer could be justified as an unrelated-matter engagement, correctly determining it was the same dam failure matter
Application of the same-matter versus unrelated-matter distinction to correctly classify the contractor's retainer as impermissible same-matter side-switching
contractor filing claim against U.S. government before Engineer A's retention by contractor
engineer's role as advisor to county (Case 76-3) overlaps engineer's testimony on behalf of developer (Case 76-3)