NSPE Board of Ethical Review (accumulated precedent)
Professional Norm: Engineer as Faithful Agent and Trustee with Duties of Loyalty, Good Faith, and Disclosure
Agent-Trustee Loyalty Obligation Standard
An engineer is expected to act, at all times in professional matters for the employer, as a faithful agent and trustee (Section I.4.). That requires the engineer to recognize both a duty of loyalty and good faith. An essential aspect of those is the duty to disclose.
Again, Engineer A owes duties of loyalty, good faith, and disclosure to the employer for which the breach constitutes a violation of the Code.
Provides the interpretive framework for understanding the scope of Engineer A's obligations to employer Engineer B while still employed, including the duty to disclose competitive promotional activities
In BER Case 77-11, the Board ruled that four engineers who founded a new firm did not violate the Code of Ethics by generally seeking work from former clients of their previous employer, but were in violation of the Code with regard to projects for which they had particular knowledge while working for their former employer.
Although at first glance the facts in Case 77-11 appear to be quite similar to the instant case, they are distinguishable on two very important points
As we noted in Case 77-11, 'We have often held that (the Code) is not to be interpreted to give an engineer or firm a right to prevent other engineers from attempting to serve former clients of other firms.'
those were the facts of Case 77-11 and that case remains a proper interpretation of the Code.
NSPE Board of Ethical Review in the instant case analysis
Cited as precedent distinguishing permissible post-employment client solicitation (after severing ties) from impermissible solicitation of current clients while still employed; establishes that engineers who leave a firm may generally seek work from former clients but not exploit specialized knowledge gained during employment
BER Case 77-11 Current-Client vs Former-Client Employed vs Departed Distinguishability BER-82
The Board explicitly distinguished BER Case 77-11 from the instant case on two grounds, preserving the earlier precedent's validity while limiting its scope to its specific factual predicate.
Ethics evaluators and engineers invoking BER Case 77-11 as precedent
BER Case 77-11 Current-Client vs. Former-Client Factual Distinguishability Constraint
BER Case 77-11's permissive holding regarding post-departure solicitation of former clients is constrained in its application by a two-factor distinguishing test: (1) whether the clients solicited are current or former clients of the employer, and (2) whether the engineer is still employed or has fully departed — with the BER Case 82-5 holding establishing that where either factor differs from the BER Case 77-11 facts (former clients; fully departed engineers), the permissive holding does not apply.
Although at first glance the facts in Case 77-11 appear to be quite similar to the instant case, they are distinguishable on two very important points: (l) In the instant case Engineer A notified 'current' and not former clients of Engineer B and offered professional services to them. (2) Engineer A was still employed by Engineer B when Engineer A notified the clients and others of the offer of professional services.
Applicable to all future ethics analyses invoking BER Case 77-11 as precedent
Throughout the Board's deliberation on the instant case
Comparative Case Precedent Distinguishing State
The Board's analysis distinguishing the instant case from BER Case 77-11
Board's conclusion that two key distinctions (current vs. former clients; employed vs. departed status) render Case 77-11 inapplicable to the instant facts
Engineer A was still employed by Engineer B when Engineer A notified the clients
In the instant case Engineer A notified 'current' and not former clients of Engineer B
Apparent factual similarity between the instant case and BER Case 77-11 requiring differentiation
BER Case 77-11 ruling before current case analysis
In BER Case 77-11, the Board ruled that four engineers who founded a new firm did not violate the Code of Ethics by generally seeking work from former clients of their previous employer... the instant case.
Brochure Distribution During Notice Period
Clients might select Engineer B's firm based on Engineer A's listed presence, an expectation that could not be fulfilled
Prospective clients would be misled into believing Engineer A would be available as a key employee on future projects
Honesty and truthfulness in professional representations
Promote the firm to prospective clients and secure future business by presenting the firm's qualifications and key personnel
Ability to supplement brochure representations with verbal disclosures during client negotiations
Knowledge of professional obligations regarding promotional material accuracy
Managerial judgment about firm promotional practices
During interim employment period, post-notice but pre-termination
Duty to avoid statements likely to create unjustified expectations (Section III.3.a.)
Obligation to inform prospective clients during negotiations of Engineer A's pending termination
Prohibition on misrepresenting pertinent facts in promotional materials (Section II.5.a.)
During the interim period after issuing Engineer A's termination notice but before actual termination, Engineer B distributed a previously printed brochure listing Engineer A as a key employee to prospective clients without disclosing Engineer A's pending departure. This constituted a misrepresentation of pertinent facts about firm personnel.
Brochure Distribution During Notice Period (Action 3) → Misrepresentation Of Staff Status (Event 4)
During the interim period after issuing Engineer A's termination notice but before actual termination, Engineer B distributed promotional brochures listing Engineer A as a key employee, resulting in misrepresentation of Engineer A's staff status to clients and the public
Brochure Distribution During Notice Period (Action 3)
Had Engineer B updated or suspended brochure distribution upon issuing the termination notice, no misrepresentation of Engineer A's status would have occurred during this period
Misrepresentation Of Staff Status (Event 4)
Brochures containing Engineer A's name and status as a key employee
Engineer B's decision to continue distributing brochures during the notice period
Third-party recipients (clients, public) receiving materially false information about staffing
Distribution of brochures listing a soon-to-be-terminated employee as current key staff, during the notice period, was sufficient to constitute misrepresentation regardless of intent
CausalLink_Brochure Distribution During N
CausalLink_Post-Termination Brochure Cont
CausalLink_Proprietary Knowledge Use Deci
Engineer A possesses the means to solicit Engineer B's clients; the opportunity structure for ethical violation is established; Engineer B's failure to restrict access post-notice creates a foreseeable risk
Throughout interim employment period following November 15, 1982
As a consequence of Engineer A's continued employment and client-facing role during the notice period, Engineer A retains access to Engineer B's current client relationships, contact information, and proprietary knowledge about client needs. This access becomes the enabling condition for subsequent solicitation.
Compounded Misrepresentation Established
What was previously a negligent misrepresentation becomes a knowing deception; Engineer B's ethical culpability escalates significantly; the ongoing distribution constitutes a continuous violation rather than a one-time error; clients continue to be misled with Engineer B's full awareness
After Engineer A's formal termination, Engineer B's continued use of brochures listing Engineer A as a key employee transforms from a negligent misrepresentation into a knowing and ongoing deception. The post-termination continuation of the same misrepresentation represents a qualitatively more serious ethical violation.
It was unethical for Engineer A to notify clients of Engineer B that Engineer A was planning to start a firm and would appreciate being considered for work while still in the employ of Engineer B.
Beyond the Board's finding that Engineer A's solicitation was unethical, Engineer A compounded the violation by failing to disclose to Engineer B that such solicitation was actively underway during the notice period. The faithful agent duty encompasses not merely the obligation to refrain from adverse competitive acts but also an affirmative duty of transparency toward the employer during the continuation of the employment relationship. By soliciting Engineer B's current clients covertly — without informing Engineer B — Engineer A deprived Engineer B of the opportunity to take protective measures, reassign client relationships, or accelerate the transition timeline. This non-disclosure constitutes an independent breach of the faithful agent and trustee obligation under Section I.4, separate from and in addition to the solicitation itself. The Board's conclusion focused on the act of solicitation but did not address whether the covert character of that solicitation independently aggravated the ethical violation. It did: the combination of active solicitation and deliberate concealment from the employer represents a more serious departure from professional loyalty than either element alone.
The Board's conclusion that Engineer A's solicitation was unethical does not adequately account for the asymmetry introduced by the employer-initiated nature of the termination. When Engineer B chose to terminate Engineer A for lack of work — a business decision made unilaterally by Engineer B — Engineer B effectively signaled that the employment relationship was no longer mutually beneficial and that Engineer A's continued loyalty would yield no reciprocal security. While the at-will employment symmetry principle invoked by Engineer A cannot serve as a blanket ethical license to solicit current clients during the notice period, it does carry moral weight as a mitigating factor in assessing the severity of the violation. The Board should have distinguished between cases where an employee voluntarily resigns to compete and cases where an employer initiates termination: in the latter scenario, the employee's pre-departure competitive positioning, while still ethically constrained by the faithful agent duty, is less culpable because the employee is responding to an involuntary displacement rather than opportunistically exploiting the employer's trust. The Board's failure to draw this distinction leaves the ethical standard underspecified for a common and practically important category of departure.
Engineer A's use of client relationships and project-specific knowledge acquired exclusively through employment with Engineer B to identify and target those specific clients for solicitation constitutes an independent ethical dimension that the Board did not separately address. Even if one were to accept the at-will employment symmetry argument as partially mitigating the solicitation's impropriety, the use of insider knowledge — including awareness of which clients had ongoing needs, pending projects, and existing dissatisfactions — to gain a competitive advantage over Engineer B goes beyond mere professional mobility. Section III.4.a requires consent of all interested parties before promoting new employment arrangements using information obtained in a professional capacity, and the specialized knowledge Engineer A possessed about Engineer B's clients was obtained solely in that capacity. The Board's analysis treated the solicitation as a unitary act, but the ethical analysis should have bifurcated it: the decision to solicit is one question, and the use of confidential client intelligence to execute that solicitation is a separate and potentially more serious question. Post-departure solicitation of former clients using generally known contact information may be permissible; pre-departure solicitation using privileged insider knowledge of client needs and vulnerabilities is not, and the Board should have articulated this distinction explicitly.
The Board's conditional permissibility ruling on Engineer B's notice-period brochure distribution — permissible only if Engineer B orally disclosed Engineer A's pending termination during active negotiations — sets a standard that is both underprotective of prospective clients and inconsistent with the proactive marketing material accuracy obligation that the Board itself recognized in other contexts. Oral disclosure during negotiations is inherently unreliable: it depends on the negotiating engineer's memory, candor, and judgment about when the disclosure is 'pertinent,' and it leaves no documentary record that the disclosure was made. A prospective client who receives a brochure listing Engineer A as a key employee and then hears a verbal qualification during a meeting may not fully appreciate the significance of that qualification, particularly if the brochure is left behind as a reference document. The Board should have required, at minimum, that Engineer B accompany each brochure distribution with a written addendum or errata sheet disclosing Engineer A's pending departure, rather than accepting oral disclosure as sufficient. The errata sheet mechanism is low-cost, creates a verifiable record, and ensures that the written document the client retains accurately reflects the firm's actual personnel situation. The Board's failure to require written correction during the notice period creates an internal inconsistency: it holds Engineer B to an absolute prohibition after actual termination but accepts a merely verbal correction standard during the notice period, even though the misrepresentation risk to prospective clients is substantially similar in both phases.
The Board's conditional permissibility ruling implicitly treats the notice period as a morally neutral interval during which Engineer B's business interests in using existing marketing materials are balanced against prospective clients' interests in accurate information. However, from a virtue ethics perspective, a firm principal who knowingly distributes a brochure listing a departing employee as a 'key employee' — even with oral qualification — is not demonstrating the professional virtue of honesty but rather managing a misrepresentation at the minimum acceptable threshold. The character standard expected of a firm principal goes beyond technical compliance with a disclosure requirement: it demands that the principal take affirmative steps to ensure that the overall impression conveyed to prospective clients is accurate. A brochure listing Engineer A as a key employee, combined with a verbal note that Engineer A 'may be leaving,' does not convey an accurate overall impression — it conveys a firm with a key employee who has some uncertainty about tenure, which is materially different from a firm that has already issued a termination notice to that employee. The Board's conditional permissibility ruling is legally defensible as a minimum ethical floor but does not represent the full character standard the profession should aspire to.
The Board's absolute prohibition on post-termination brochure distribution listing Engineer A as a key employee is well-founded, but the Board did not address whether Engineer A bears any independent ethical responsibility for the misrepresentation that Engineer B's continued brochure use perpetuates. Once Engineer A's actual termination occurred, Engineer A's professional identity and credentials were being actively misrepresented to prospective clients without Engineer A's consent and potentially to Engineer A's competitive detriment — prospective clients might assume Engineer A remained affiliated with Engineer B's firm and decline to engage Engineer A's new firm. Under Section II.5.a, engineers shall not permit misrepresentation of their qualifications or associations. This provision imposes an affirmative obligation on Engineer A to take steps to correct the misrepresentation once Engineer A became aware that Engineer B was continuing to distribute brochures listing Engineer A as a key employee. Engineer A should have formally notified Engineer B in writing to cease using the brochure and, if Engineer B failed to comply, should have considered notifying affected prospective clients directly. The Board's analysis focused entirely on Engineer B's obligation to correct the brochure but left Engineer A's reciprocal obligation to protect the accuracy of Engineer A's own professional representations unaddressed.
The Board's absolute prohibition on post-termination brochure distribution raises but does not resolve the question of whether the prohibition's force depends on the materiality of the listed employee's role to prospective clients' contracting decisions. The Board's ruling was premised on Engineer A being listed as a 'key employee,' a designation that is inherently material to a prospective client evaluating whether to engage the firm. However, the Board did not articulate whether the same absolute prohibition would apply if Engineer A had been listed as a peripheral or non-key employee whose departure would be unlikely to influence a prospective client's decision. The dual-element misrepresentation test — requiring both a misrepresentation of pertinent fact and a purpose to deceive — suggests that the ethical severity of post-termination brochure use should scale with the materiality of the departed employee's listed role. A brochure listing a departed key employee as currently affiliated is a categorical misrepresentation of a fact that is directly relevant to client decision-making and therefore warrants absolute prohibition. A brochure listing a departed peripheral employee might constitute a technical inaccuracy without rising to the level of a pertinent misrepresentation, depending on the circumstances. The Board's failure to articulate this materiality threshold leaves the standard potentially over-inclusive in low-stakes cases and under-theorized in high-stakes ones.
It was not unethical for Engineer B to distribute a previously printed brochure listing Engineer A as a key employee provided Engineer B apprised the prospective client during the negotiation of Engineer A's pending termination.
In response to Q101: Engineer A's failure to disclose to Engineer B that Engineer A was actively soliciting Engineer B's current clients during the notice period constitutes an independent breach of the faithful agent duty, separate from and compounding the ethical violation of the solicitation itself. The duty to act as a faithful agent under Section I.4 is not merely a duty to refrain from harmful acts but also an affirmative duty of candor toward one's employer. By conducting covert solicitation without disclosure, Engineer A deprived Engineer B of the opportunity to take protective measures, accelerate the termination, or negotiate a transition arrangement. The concealment transforms what might otherwise be a borderline competitive act into a deliberate act of bad faith. Even if one were to argue that the solicitation itself occupied a gray area given the employer-initiated termination, the non-disclosure removes any ambiguity: Engineer A was simultaneously performing work for Engineer B while secretly redirecting Engineer B's client relationships to a competing venture, without Engineer B's knowledge or consent. This dual conduct — active employment combined with covert competitive solicitation — is precisely what Section III.4.a is designed to prohibit.
In response to Q102: The fact that Engineer B initiated the termination rather than Engineer A voluntarily resigning does not materially alter the ethical calculus governing Engineer A's pre-departure client solicitation, and the Board was correct not to establish a distinct standard for employer-initiated departures. While the at-will employment symmetry principle — the notion that because Engineer B could terminate Engineer A at will, Engineer A should be free to compete immediately upon receiving notice — has intuitive appeal, it conflates legal entitlement with ethical obligation. The faithful agent duty under Section I.4 is not contingent on the reason for departure; it persists throughout the employment relationship until actual termination. The ethical wrong in Engineer A's conduct is not the decision to compete but the timing and method: soliciting current clients while still drawing compensation and performing work for Engineer B. Engineer B's decision to terminate for lack of work, while perhaps morally relevant as context, does not suspend Engineer A's loyalty obligations during the notice period. To hold otherwise would create a perverse incentive structure in which any employee receiving a termination notice could immediately begin raiding the employer's client base with ethical impunity. The Board's uniform standard appropriately prioritizes the integrity of the employment relationship over the circumstances of its dissolution.
In response to Q103: Engineer A bears a secondary but real ethical obligation to proactively notify Engineer B's prospective clients that Engineer A's name appearing in Engineer B's brochure is misleading after Engineer A's actual termination. While the Board's third conclusion correctly places primary responsibility for the post-termination brochure misrepresentation on Engineer B, Engineer A is not ethically passive in this situation. Engineer A's professional identity and credentials are being used without consent to attract clients to a firm Engineer A no longer represents. This exploitation harms Engineer A's own professional reputation, potentially associates Engineer A with projects or commitments Engineer A cannot fulfill, and misleads clients who may rely on Engineer A's listed participation as a material factor in selecting Engineer B's firm. Section II.5.a prohibits permitting misrepresentation of one's qualifications or associations, and Engineer A's silence in the face of known misrepresentation arguably constitutes such permission by omission. Engineer A should therefore take affirmative steps — such as directly notifying prospective clients with whom Engineer A has contact, or formally demanding that Engineer B cease distribution — to prevent the continued exploitation of Engineer A's professional identity. Engineer A's failure to do so does not rise to the level of Engineer B's direct ethical violation but represents a meaningful gap in Engineer A's own professional conduct.
In response to Q104: Engineer A's use of specialized knowledge about Engineer B's clients — knowledge gained exclusively through employment — to target those specific clients for solicitation constitutes an independent ethical concern that the Board did not fully address as a discrete question. The Board acknowledged the specialized knowledge constraint in passing but treated it as a contextual factor rather than a separate violation. However, Section III.4.a requires consent of all interested parties before promoting new employment arrangements using information or relationships developed during current employment. When Engineer A leveraged insider knowledge of Engineer B's client roster, project needs, and relationship dynamics to craft targeted solicitations, Engineer A was using proprietary relational capital that belonged, in a professional sense, to Engineer B's firm. This is categorically different from a departing engineer who, after termination, happens to encounter a former client in the marketplace. The targeted, knowledge-driven nature of the solicitation — made possible only by Engineer A's privileged access — amplifies the ethical violation beyond mere timing. The Board should have addressed this as a separate question, because even if the timing of solicitation were deemed permissible in some hypothetical scenario, the method of leveraging insider client intelligence without consent would remain independently problematic.
In response to Q201: The tension between Client Autonomy in Engineering Service Provider Selection and the Faithful Agent Trustee Duty is real but ultimately resolvable in favor of the loyalty obligation during the active employment period. Client autonomy — the principle that clients have an absolute right to choose their engineer — is a genuine and important value in the NSPE ethical framework, and it is true that Engineer A's solicitation could be framed as merely informing clients of a choice they are entitled to make. However, this framing conflates the clients' right to choose with Engineer A's right to solicit during active employment. Client autonomy does not generate an affirmative obligation on Engineer A's part to inform clients of competitive alternatives while still employed by Engineer B; it merely prohibits Engineer B from contractually preventing clients from switching engineers. The faithful agent duty, by contrast, directly governs Engineer A's conduct during employment and prohibits using the employment relationship as a platform for competitive self-promotion at the employer's expense. After actual termination, the balance shifts: client autonomy then supports Engineer A's right to make the market aware of a new firm, and the loyalty obligation no longer applies. The Board's conclusion correctly reflects this temporal resolution of the tension.
In response to Q202: The At-Will Employment Symmetry principle cannot serve as an ethical justification for conduct that violates loyalty obligations, and the Board implicitly but correctly rejected this argument. The symmetry argument holds that because Engineer B could terminate Engineer A at will, Engineer A should be equally free to compete at will from the moment of receiving notice. This reasoning is flawed for two reasons. First, ethical obligations are not merely reciprocal legal entitlements; the faithful agent duty exists independently of whether the employment relationship is at-will. Second, the symmetry argument proves too much: if accepted, it would mean that any employee who receives a termination notice — or even anticipates one — could immediately begin soliciting the employer's clients, using the employer's resources, relationships, and time, without ethical constraint. The Questionable Competition Methods Prohibition under Section III.7 is precisely designed to prevent competitive conduct that, while perhaps not illegal, undermines the professional trust on which engineering practice depends. At-will reciprocity is a legal concept governing the termination of employment; it does not dissolve the ethical obligations that govern conduct during employment.
In response to Q203: The tension between the Notice-Period Brochure Distribution Conditional Permissibility principle and the Proactive Marketing Material Accuracy Obligation reveals a meaningful gap in the Board's second conclusion. The Board's conditional permissibility ruling — allowing Engineer B to continue distributing the brochure during the notice period provided oral disclosure of Engineer A's pending departure is made during active negotiations — relies on a disclosure mechanism that is inherently incomplete. Oral disclosure during negotiation reaches only those prospective clients who have already entered active discussions with Engineer B; it does not reach prospective clients who receive the brochure but have not yet initiated negotiations, nor does it create a documented record of the disclosure. The Proactive Marketing Material Accuracy Obligation, grounded in Sections III.3.a and II.5.a, would seem to require that the written record itself be corrected — through an errata sheet, written addendum, or updated brochure — rather than relying on case-by-case oral qualification. The Board's ruling is pragmatically lenient, acknowledging the logistical difficulty of immediately reprinting brochures, but it sets a lower standard than the proactive accuracy obligation would demand. A more rigorous application of the honesty principle would require Engineer B to issue written corrections accompanying each brochure distribution during the notice period, not merely verbal disclosures during negotiations.
In response to Q204: The temporal boundary between permissible and impermissible solicitation is indeed ethically unstable when the client relationships and project knowledge enabling post-departure solicitation were acquired exclusively during employment, and the Board's framework does not fully resolve this instability. The Former-Client Solicitation Permissibility principle holds that Engineer A may freely solicit Engineer B's former clients after departure, but this permissibility is premised on a clean temporal break that does not exist in practice. The very knowledge of which clients to contact, what their project needs are, and how to frame a competitive pitch was acquired during employment. The Specialized Knowledge Constraint acknowledges this problem but applies it only conditionally and without specifying how it interacts with the post-departure permissibility rule. A more coherent framework would distinguish between general professional knowledge of client relationships — which Engineer A legitimately carries as part of professional experience — and specific proprietary intelligence about ongoing projects, budgets, and decision-making processes, which should remain subject to a confidentiality constraint even after departure. The Board's binary temporal framework — prohibited before termination, permitted after — is administratively clear but ethically underinclusive, as it does not account for the qualitative nature of the knowledge being deployed in post-departure competition.
In response to Q301: From a deontological perspective, Engineer A violated a categorical duty of loyalty to Engineer B by soliciting Engineer B's current clients during the notice period, regardless of whether Engineer B initiated the termination and regardless of the absence of a written non-compete agreement. The Kantian categorical imperative requires that one act only according to maxims that could be universalized without contradiction. If every employee who received a termination notice immediately began soliciting the employer's current clients while still employed, the institution of employment — and the trust relationships on which it depends — would be systematically undermined. The faithful agent duty under Section I.4 is precisely such a categorical obligation: it does not admit of exceptions based on the circumstances of departure or the absence of contractual restrictions. The deontological analysis also highlights the wrongness of using the employer's own client relationships — relationships Engineer A accessed only by virtue of employment — as instruments for competitive self-promotion during the employment period. This instrumentalization of the employer's relational assets for Engineer A's benefit, without consent, violates the duty to treat the employer as an end in itself rather than merely as a means to Engineer A's career advancement.
In response to Q302: From a consequentialist perspective, Engineer A's pre-departure solicitation of Engineer B's clients produced net harm across affected parties that outweighed the competitive positioning benefit Engineer A gained. For Engineer B, the harm is direct and concrete: the goodwill embedded in client relationships — built through years of service and investment — was actively eroded by an employee still drawing compensation from the firm. For Engineer B's clients, the harm is subtler but real: clients who received Engineer A's solicitation while Engineer A was still employed by Engineer B were placed in an awkward position, potentially receiving incomplete or strategically framed information about Engineer A's departure circumstances, and were denied the benefit of a fully transparent competitive marketplace. For the engineering profession broadly, the harm is reputational: if departing engineers routinely solicit current employer clients during notice periods, the profession's trustworthiness as a whole is diminished, increasing transaction costs for all clients who must now be more guarded in sharing project information with engineers. Against these harms, the benefit to Engineer A — earlier competitive positioning — is modest and could have been achieved through ethically permissible means by waiting until after actual termination. The consequentialist calculus therefore supports the Board's finding of a violation.
In response to Q303: From a virtue ethics perspective, Engineer B did not fully demonstrate the professional virtue of honesty when distributing the brochure during the notice period without proactively disclosing Engineer A's pending termination, and the Board's conditional permissibility ruling captures only the minimum ethical threshold rather than the character standard expected of a firm principal. A person of genuine professional integrity — one who embodies honesty as a character trait rather than merely complying with disclosure rules when directly asked — would not distribute marketing materials known to contain a material inaccuracy without simultaneously and proactively correcting that inaccuracy in writing. The Board's ruling that oral disclosure during active negotiations is sufficient reflects a pragmatic accommodation of business realities, but it does not reflect the virtue of honesty as a positive character disposition. A firm principal who truly values transparency would recognize that prospective clients who receive the brochure but do not yet enter active negotiations are being misled, and would take steps — such as an errata sheet or written addendum — to prevent that misleading impression from forming. The conditional permissibility ruling is therefore better understood as establishing a floor of ethical compliance rather than a ceiling of professional virtue.
In response to Q304: From a deontological perspective, Engineer B's continued post-termination distribution of a brochure listing Engineer A as a key employee constitutes a categorical misrepresentation of fact that violates a duty of honesty owed simultaneously to prospective clients, to Engineer A, and to the engineering profession. The duty of honesty, as a categorical obligation, does not admit of exceptions based on logistical inconvenience or the cost of reprinting brochures. Engineer B's post-termination conduct involves three distinct deontological wrongs. First, prospective clients are deceived about the personnel composition of the firm they are considering hiring, a deception that directly affects their ability to make informed contracting decisions. Second, Engineer A's professional identity and credentials are being exploited without consent to attract business to a firm Engineer A no longer represents, violating Engineer A's right to control the use of Engineer A's own professional reputation. Third, the engineering profession's collective commitment to honest representation — embodied in Sections II.5.a and III.3.a — is undermined when a firm principal knowingly distributes inaccurate personnel information. The Board's absolute prohibition on post-termination brochure distribution is therefore not merely a pragmatic rule but a deontologically necessary conclusion: no competing consideration can justify the knowing misrepresentation of material facts to prospective clients.
In response to Q401: Engineer A's pre-departure solicitation of Engineer B's clients would have been substantially more defensible ethically — though not necessarily fully permissible — if Engineer A had first fully disclosed to Engineer B the intent to solicit those specific clients, obtained Engineer B's acknowledgment, and notified clients openly rather than covertly. Full prior disclosure to Engineer B would have satisfied the core of the faithful agent duty by eliminating the element of concealment and allowing Engineer B to make informed decisions about the notice period arrangement. Open notification to clients — as opposed to covert solicitation — would have respected the clients' right to make informed choices without the distortion created by Engineer A's insider position. However, even with these safeguards, a residual ethical concern would remain: Engineer A would still be using the employment relationship as a platform for competitive self-promotion, and Engineer B's clients would still be receiving competitive solicitations from someone who was simultaneously performing work on Engineer B's behalf. The most ethically clean resolution would have been for Engineer A to wait until after actual termination to solicit clients, even if that meant a competitive disadvantage. Full disclosure and open conduct would mitigate but not eliminate the ethical tension inherent in soliciting a current employer's clients during active employment.
In response to Q402: The Board's ethical assessment of Engineer A's solicitation conduct would not have differed materially if Engineer A had waited until after actual termination to contact Engineer B's former clients, and the timing of Engineer B's termination notice does not create a morally relevant asymmetry sufficient to shift the ethical balance in Engineer A's favor during the notice period. After actual termination, Engineer A would be entirely free to solicit former clients under the Former-Client Solicitation Permissibility principle, and no ethical violation would arise. The moral asymmetry argument — that Engineer B's decision to terminate Engineer A at will should accelerate Engineer A's competitive freedom — is appealing but ultimately unpersuasive for the reasons discussed in response to Q102. What the termination notice does create is a legitimate basis for Engineer A to begin internal planning for a new firm, to consult with legal counsel about non-compete obligations, and to prepare marketing materials — all without crossing into active solicitation of current clients. The ethical boundary is between preparation and solicitation, not between employer-initiated and employee-initiated departures. The Board's framework correctly maintains this boundary regardless of who initiated the departure.
In response to Q403: Engineer B's distribution of the brochure during the notice period would have been closer to unconditionally ethical — though still not entirely free of concern — if Engineer B had proactively issued a written errata sheet or addendum to all prospective clients at the time of each brochure distribution, rather than relying on oral disclosure only during active negotiations. Written correction at the point of distribution would satisfy the Proactive Marketing Material Accuracy Obligation more fully than oral disclosure, because it would reach all recipients of the brochure regardless of whether they entered active negotiations, it would create a documented record of the disclosure, and it would prevent the formation of a misleading impression in the minds of prospective clients who read the brochure but did not immediately contact Engineer B. The Board's conditional permissibility ruling is best understood as a pragmatic minimum: it acknowledges that immediate reprinting is not always feasible but does not endorse oral-only disclosure as the ideal standard. A written errata sheet is a low-cost mechanism that Engineer B could have deployed without significant burden, and its use would have more fully aligned Engineer B's conduct with the honesty and accuracy obligations embedded in Sections III.3.a and II.5.a. The Board's ruling leaves room for this higher standard without requiring it.
In response to Q404: Engineer B's post-termination brochure distribution would likely remain ethically impermissible even if Engineer A had been listed as a non-key, peripheral employee rather than a key employee, though the severity of the violation and its practical impact on prospective clients' contracting decisions would be diminished. The Board's absolute prohibition on post-termination brochure use is grounded in the categorical honesty obligation under Sections II.5.a and III.3.a, which prohibit misrepresentation of material facts regardless of the degree of materiality. However, the Pertinent Fact Dual-Element Test applied by the Board does incorporate a materiality assessment: a misrepresentation must be both false and pertinent to the client's decision-making to constitute a full ethical violation. For a non-key, peripheral employee, the pertinence element would be weaker — prospective clients are less likely to rely on the listed participation of a peripheral employee in making contracting decisions. This suggests that while the post-termination brochure distribution would remain technically impermissible as a false statement of fact, the ethical gravity of the violation would be calibrated to the materiality of the listed employee's role. The Board's absolute prohibition is therefore best understood as applying with full force to key employees whose listed participation is material to client decisions, while the same conduct involving peripheral employees, though still impermissible, would represent a less serious violation.
It was unethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination.
The Board resolved the tension between Client Autonomy in Engineering Service Provider Selection and the Faithful Agent Trustee Duty by treating them as operating on different temporal planes rather than as genuinely competing values. Client autonomy — the client's absolute right to choose their engineer — was acknowledged as a legitimate long-run principle, but the Board refused to allow it to serve as a real-time justification for Engineer A's solicitation conduct during the notice period. The Board's implicit reasoning is that client autonomy is a structural feature of the engineering marketplace that becomes operative after an employment relationship concludes, not a license that a currently employed engineer may invoke to justify redirecting a current employer's clients toward a competing venture. In other words, the principle of client autonomy does not dissolve the faithful agent duty; it merely defines the outer boundary of what the faithful agent duty can legitimately restrict once employment ends. This resolution teaches that client-protective principles and employer-protective principles are not symmetrically weighted: the faithful agent duty functions as a near-absolute constraint during active employment, while client autonomy functions as a permissive background norm that governs post-departure conduct.
The Board's treatment of the At-Will Employment Symmetry principle reveals a fundamental asymmetry in how reciprocal at-will rights are ethically weighted. Engineer A's implicit argument — that because Engineer B could terminate Engineer A at will, Engineer A was equally free to begin competing for Engineer B's clients immediately upon receiving notice — was implicitly rejected. The Board's conclusion establishes that at-will employment symmetry is a legal concept that describes the absence of contractual barriers to departure, not an ethical license that neutralizes the faithful agent duty during the notice period. The Questionable Competition Methods Prohibition operates independently of whether a non-compete agreement exists: the absence of a written restriction does not convert covert solicitation of a current employer's clients into ethically permissible conduct. This case therefore teaches that at-will reciprocity can never serve as a standalone ethical justification for conduct that violates loyalty obligations, because the faithful agent duty is grounded in professional ethics codes rather than in contract law. The ethical obligation persists even where the legal obligation does not.
The Board's conditional permissibility ruling on Engineer B's notice-period brochure distribution exposes an unresolved tension between the Notice-Period Brochure Distribution Conditional Permissibility principle and the Proactive Marketing Material Accuracy Obligation. By permitting Engineer B to continue distributing a brochure listing Engineer A as a key employee provided oral disclosure of Engineer A's pending departure was made during active negotiations, the Board implicitly accepted a lower standard of accuracy for printed marketing materials than the Proactive Marketing Material Accuracy Obligation would seem to demand. A fully proactive accuracy standard would require Engineer B to correct the written record — through an errata sheet or written addendum — rather than relying on case-by-case oral qualification. The Board's ruling thus creates a two-tier disclosure regime: oral disclosure suffices during the notice period, but the absolute prohibition on post-termination brochure use implies that the written record must eventually be corrected. This tension is never fully resolved by the Board, and the case teaches that where a proactive accuracy obligation and a conditional permissibility principle coexist, the Board will calibrate the required correction mechanism to the severity of the misrepresentation risk rather than imposing a uniform written-correction standard across all stages of the employment transition. The practical implication is that Engineer B bore a progressively escalating accuracy obligation: permissive with oral disclosure during negotiations, conditionally permissive during the notice period, and absolutely prohibited after actual termination — a graduated rather than binary ethical standard.
The interaction between the Former-Client Solicitation Permissibility principle and the Specialized Knowledge Constraint reveals that the Board treated the temporal boundary of employment as the primary ethical dividing line for competitive solicitation, while leaving the specialized knowledge problem structurally unresolved. The Board acknowledged that Engineer A would be free to solicit Engineer B's former clients after departure, and that no written non-compete agreement existed, but it also noted the risk that Engineer A might use specialized knowledge gained during employment to target those clients. Rather than establishing a clear rule about whether employment-acquired client knowledge taints post-departure solicitation, the Board effectively deferred that question by finding the pre-departure solicitation unethical on faithful agent grounds alone. This deferral means the case does not resolve whether the specialized knowledge constraint survives the termination of employment or whether it evaporates once the faithful agent duty ends. The case therefore teaches that when the Board can resolve an ethical question on narrower grounds — the timing of solicitation relative to employment status — it will avoid adjudicating the harder question of whether knowledge acquired during employment creates a permanent competitive disadvantage for the departing engineer. The temporal boundary is treated as a bright line precisely because the knowledge-taint question has no clean answer.
Taken together, the Board's three conclusions establish a graduated principle-prioritization hierarchy that operates across the full arc of the employment transition. During active employment — even under a notice of termination — the Faithful Agent Trustee Duty and the Questionable Competition Methods Prohibition are treated as near-absolute constraints that override both the At-Will Employment Symmetry principle and the Client Autonomy principle. During the notice period after termination notice but before actual termination, the Honesty Principle and the Proactive Marketing Material Accuracy Obligation are treated as satisfiable through oral disclosure during active negotiations, meaning the accuracy obligation is real but its discharge mechanism is flexible. After actual termination, the Honesty Principle and the Pertinent Fact Misrepresentation prohibition are treated as absolute, admitting no exceptions based on logistical difficulty or printing costs. This graduated hierarchy teaches that the NSPE Code does not apply principles uniformly across all phases of an employment relationship: the weight assigned to loyalty, honesty, and accuracy obligations shifts depending on whether the engineer is currently employed, in a notice period, or formally departed. The case thus functions as a temporal map of how competing principles are prioritized at each stage of a professional transition, with the faithful agent duty dominating during employment, a balanced disclosure standard governing the notice period, and an unqualified honesty obligation controlling post-departure conduct.
Competitive harm to Engineer B's business during the notice period
Possible use of proprietary client information or specialized knowledge gained through employment
Potential diversion of Engineer B's current clients away from the firm
Full disclosure to employer of conflicts of interest
Secure future clients for a planned new engineering firm to protect livelihood following pending termination
Duty not to use proprietary client information or specialized knowledge without full disclosure to employer (Section III.4.a.)
Ability to distinguish current from former clients
Knowledge of professional ethics obligations during employment
Understanding of disclosure obligations to employer
Shortly after November 15, 1982, during continued employment
Duty of disclosure to employer regarding competitive activities (Section I.4.)
Duty to act as a faithful agent and trustee to the employer (Section I.4.)
Prohibition on competing with employer using questionable methods (Section III.7.)
While still employed by Engineer B and shortly after receiving termination notice, Engineer A contacted Engineer B's current clients to announce plans to start a new firm and solicit future work, without informing Engineer B. This constituted a breach of the duty of loyalty and faithful agency owed to a current employer.
Current Client Solicitation (Action 2) → Client Relationship Access Established (Event 3)
While still employed by Engineer B and shortly after receiving termination notice, Engineer A contacted Engineer B's current clients, exploiting the access established through continued employment
Without continued employment access, Engineer A would not have had the same level of client relationship information or trust to leverage; solicitation would have been significantly less effective
Client Relationship Access Established (Event 3)
Engineer A's continued employment granting legitimate access to client information
Engineer A's volitional decision to solicit clients while still employed
Existence of Engineer B's established client relationships as targets
Active employment status combined with deliberate solicitation decision and client access was sufficient to establish the ethically problematic client relationship pipeline
Should Engineer A solicit Engineer B's current clients for a new competing firm during the notice period, or refrain from solicitation until after actual termination?
Engineer A's Pre-Departure Solicitation of Engineer B's Current Clients During Notice Period: Whether soliciting an employer's current clients for a competing venture while still employed and drawing compensation violates the faithful agent duty under NSPE Code Section I.4, even when the termination was employer-initiated.
Refrain from contacting Engineer B's current clients during the notice period; use the interim time for internal planning, legal consultation, and preparation of marketing materials, then solicit former clients only after the employment relationship has fully concluded.
Notify Engineer B's current clients of the new firm during the notice period, reasoning that Engineer B's employer-initiated termination dissolved the reciprocal loyalty foundation and that at-will employment symmetry permits immediate competitive positioning.
Inform Engineer B of the intent to solicit specific clients before making contact, thereby satisfying the disclosure component of the faithful agent duty while still exercising competitive mobility rights during the notice period with Engineer B's knowledge.
Should Engineer A disclose to Engineer B that Engineer A is actively soliciting Engineer B's current clients during the notice period, or proceed with solicitation without informing Engineer B?
Engineer A's Independent Disclosure Obligation: Whether Engineer A's failure to disclose to Engineer B that solicitation of Engineer B's current clients was actively underway during the notice period constitutes an independent breach of the faithful agent duty, separate from and compounding the ethical violation of the solicitation itself.
Inform Engineer B before or contemporaneously with client contact that Engineer A is notifying clients of the new firm, satisfying the affirmative disclosure component of the faithful agent duty and allowing Engineer B to make informed decisions about the notice period arrangement.
Contact Engineer B's clients without informing Engineer B, reasoning that the employer-initiated termination dissolved the reciprocal trust basis for the disclosure obligation and that advance notice would expose Engineer A to retaliation or accelerated termination.
Notify clients only that Engineer A is starting a new firm and is available for future work, without leveraging specific insider knowledge of client project needs or vulnerabilities, and without disclosing the solicitation to Engineer B — treating the general announcement as categorically different from targeted competitive solicitation.
Should Engineer B accompany each brochure distribution during the notice period with a written errata sheet disclosing Engineer A's pending departure, or is oral disclosure during active client negotiations sufficient to satisfy the honesty obligation?
Engineer B's Notice-Period Brochure Distribution Disclosure Standard: Whether Engineer B's continued distribution of a previously printed brochure listing Engineer A as a key employee during the notice period was ethical, and what disclosure mechanism — oral during active negotiations, or written errata accompanying each distribution — was required to prevent client misrepresentation.
Accompany every brochure distributed during the notice period with a written errata sheet or cover letter disclosing Engineer A's pending departure, ensuring all recipients — not only those in active negotiations — receive accurate personnel information and creating a documented record of disclosure.
Continue distributing the existing brochure without modification but verbally inform each prospective client of Engineer A's pending termination during active negotiation sessions, treating oral disclosure as sufficient to cure the misrepresentation risk for clients who are actually evaluating the firm.
Cease distributing the existing brochure immediately upon issuing the termination notice and withhold marketing materials until a corrected version omitting Engineer A's name can be printed, accepting the temporary competitive disadvantage of reduced marketing activity during the notice period.
Must Engineer B immediately cease distributing all brochures listing Engineer A as a key employee upon Engineer A's actual termination, or may Engineer B continue distributing previously printed materials while arranging for reprinting?
Engineer B's Post-Actual-Termination Brochure Cessation: Whether Engineer B's continued distribution of a brochure listing Engineer A as a key employee after Engineer A's actual termination constitutes an absolute ethical violation, and whether logistical difficulty or inadvertence provides any mitigation.
Stop distributing any version of the brochure listing Engineer A as a key employee the moment Engineer A's employment formally ends, accepting a temporary gap in marketing materials until a corrected brochure can be printed, regardless of cost or competitive inconvenience.
Continue distributing the existing brochure after Engineer A's actual termination while verbally informing prospective clients during negotiations that Engineer A has since departed, applying the same oral-disclosure standard used during the notice period as a transitional measure until reprinting is complete.
Immediately withdraw the existing brochure from active distribution and issue a written notice to all prospective clients who received the brochure during the notice period informing them of Engineer A's departure, while expediting reprinting of corrected materials.
Should Engineer A take affirmative steps to correct Engineer B's post-termination brochure misrepresentation — by formally demanding Engineer B cease distribution or notifying affected clients directly — or treat the correction obligation as resting solely with Engineer B?
Engineer A's Post-Departure Obligation to Correct Ongoing Brochure Misrepresentation: Whether Engineer A bears an independent affirmative obligation under Section II.5.a to take steps to prevent Engineer B's continued post-termination use of a brochure listing Engineer A as a current key employee, given that Engineer A's professional identity and credentials are being misrepresented without consent.
Send a written demand to Engineer B requiring immediate cessation of brochure distribution listing Engineer A as a current key employee, documenting the demand and reserving the right to notify affected clients directly if Engineer B fails to comply within a reasonable time.
Take no affirmative action regarding Engineer B's continued brochure use, reasoning that primary ethical responsibility for accurate marketing materials rests entirely with Engineer B as the distributing party and that Engineer A has no practical authority over Engineer B's distribution channels post-departure.
Proactively contact prospective clients known to have received Engineer B's brochure to clarify that Engineer A is no longer affiliated with Engineer B's firm, simultaneously protecting Engineer A's professional reputation and correcting the misrepresentation at the point of client reliance.
Should Engineer A limit client solicitation to contacts made without leveraging insider knowledge of Engineer B's client project needs and vulnerabilities, or may Engineer A use all employment-acquired client intelligence to identify and target solicitation efforts?
Engineer A's Specialized Knowledge Constraint on Client Solicitation: Whether Engineer A's use of insider knowledge about Engineer B's client roster, project needs, and relationship dynamics — acquired exclusively through employment — to identify and target specific clients for solicitation constitutes an independent ethical violation under Section III.4.a beyond the mere timing of the solicitation.
Limit client outreach to contacts identifiable through publicly available sources — directories, prior public project records, professional networks — without leveraging insider knowledge of specific project needs, budgets, or decision-making vulnerabilities acquired through employment with Engineer B.
Deploy full knowledge of Engineer B's client roster, project pipelines, and relationship dynamics to craft targeted solicitations, reasoning that this knowledge is inseparable from Engineer A's general professional experience and that no consent requirement applies absent a written confidentiality agreement.
Inform Engineer B of the intent to use employment-acquired client knowledge in solicitation efforts and seek Engineer B's acknowledgment before making client contact, satisfying the disclosure component of Section III.4.a while preserving Engineer A's ability to compete using professional knowledge developed during employment.
Employment relationship enters ambiguous interim phase; Engineer A gains legitimate interest in future employment while retaining current duties; Engineer B assumes obligation to manage transition honestly
Engineer A receives formal notification of pending termination due to lack of work, creating a legally and ethically ambiguous interim employment period. This event marks the beginning of a transitional phase with competing obligations for both parties.
Professional Norm: Prohibition on Using Employer's Proprietary Information Without Disclosure
Engineer Confidentiality and Loyalty Obligation Standard
As an employee of Engineer B, Engineer A could not ethically use proprietary information concerning clients, trade secrets, or other valuable information of the employer without full disclosure to the employer.
Applied to the question of whether Engineer A improperly used client information, trade secrets, or specialized knowledge gained during employment to solicit current clients without disclosure to Engineer B
Engineer Departure and Competition Ethics Standard
Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work
Engineer A thereupon notified clients of Engineer B that Engineer A was planning to start another engineering firm
BER in evaluating Engineer A's conduct during the transition period
Governs the balance between Engineer A's right to establish a competing firm and obligations to Engineer B as current employer, including limits on solicitation during the notice period
Engineer Solicitation and Competition Ethics Standard
Engineer A thereupon notified clients of Engineer B that Engineer A was planning to start another engineering firm and would appreciate being considered for future work
Engineer A continued to work for Engineer B for several additional months after the November termination notice
BER in evaluating Engineer A's conduct in approaching Engineer B's clients
Provides normative framework for evaluating whether Engineer A's active solicitation of Engineer B's clients during the employment notice period crossed ethical boundaries regarding competition and solicitation conduct
Engineer A-B-Client Three-Party Departure Balancing
Throughout the Board's analysis of the case
We do not mean to suggest than an employee who severs all ties with the employer and then seeks to contact clients of the employer in order to offer engineering services is in violation of the Code
Three-Party Engineer Departure Interest Balancing State
The tripartite balancing of Engineer A's mobility rights, Engineer B's goodwill interests, and clients' free choice of engineer
Board's resolution establishing that post-employment competition with former clients is permissible but current-client solicitation while employed is not
Nor do we wish to suggest any restraint exists upon one's absolute right to select in all cases, the engineer of one's choice
We have often held that (the Code) is not to be interpreted to give an engineer or firm a right to prevent other engineers from attempting to serve former clients of other firms
Engineer A's departure from Engineer B's firm and subsequent competitive solicitation of Engineer B's clients
Engineer A At-Will Competitive Mobility Permissibility During Notice Period
Engineer A received an employer-initiated termination notice and immediately began notifying Engineer B's clients of intent to start a competing firm while still employed during the notice period.
At-Will Employment Symmetry Competitive Mobility Permissibility Constraint
Engineer A's right to establish a competing firm was ethically permissible as a matter of at-will employment symmetry — Engineer B had terminated Engineer A, and Engineer A had no written non-compete agreement — but this permissibility did not extend to active solicitation of Engineer B's clients during the notice period while still employed.
NSPE Code Section I.4; NSPE BER Cases 77-11, 86-5; at-will employment symmetry principle
On November 15, 1982 Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work.
From November 15, 1982 (termination notice) through actual termination date
Engineer A thereupon notified clients of Engineer B that Engineer A was planning to start another engineering firm and would appreciate being considered for future work.
Meanwhile, Engineer A continued to work for Engineer B for several additional months after the November termination notice.
Engineer A At-Will Employment Reciprocity Ethical Boundary Recognition
At-Will Employment Reciprocity Ethical Boundary Recognition Capability
Engineer A needed the capability to recognize that the at-will employment doctrine's reciprocity — permitting free movement between positions — did not suspend his other ethical obligations such as honesty, faithful agent duties, and non-misrepresentation during the notice period.
Engineer A received an employer-initiated termination, triggering the at-will reciprocity principle while maintaining ethical constraints on departure conduct.
Engineer A's situation where the employer-initiated termination created a reciprocal right to compete, but this right did not eliminate the ethical constraints on the manner of competition.
Engineer A Current-Client Covert Solicitation While Employed Faithful Agent Prohibition BER-82
Engineer A received a termination notice from Engineer B on November 15, 1982, but remained employed during a notice period. During that period, Engineer A notified Engineer B's current clients of an intent to offer competing professional services without disclosing this solicitation to Engineer B.
Current-Client Covert Solicitation While Employed Faithful Agent Prohibition Constraint
Engineer A, while still employed by and receiving compensation from Engineer B and bound by faithful agent duties under NSPE Code Section I.4, was prohibited from covertly notifying Engineer B's current clients of an offer of competing professional services without disclosing such solicitation to Engineer B — the prohibition arising from the combination of (1) the clients being current (not former) clients of Engineer B, and (2) Engineer A being still employed (not departed) at the time of solicitation.
Engineer A notified 'current' and not former clients of Engineer B and offered professional services to them.
From the date of termination notice (November 15, 1982) through the date of actual departure from Engineer B's firm
Engineer A was still employed by Engineer B when Engineer A notified the clients and others of the offer of professional services.
it is concluded that Engineer A violated Section I.4. by failing to act as a faithful employee.
Engineer A Departing Employee Specialized Knowledge Competitive Restriction Self-Assessment
Departing Employee Specialized Knowledge Competitive Restriction Self-Assessment Capability
Engineer A needed the capability to self-assess whether he had acquired particular or specialized knowledge about specific client projects during his employment with Engineer B that would ethically restrict his ability to compete for those specific projects.
Engineer A's departure and solicitation of Engineer B's clients raised the question of whether specialized project knowledge constrained his competitive activities.
The case's conditional analysis that if Engineer A had gained specialized knowledge about specific projects, he would be ethically restricted from competing for those projects, requiring Engineer A to make this self-assessment.
Engineer A continued to work for Engineer B for several additional months after the November termination notice.
Engineer A Departing Engineer Client Solicitation Honest Representation
Departing Engineer Client Solicitation Honest Representation Capability
Engineer A was obligated to conduct solicitation of Engineer B's clients honestly, accurately, and without misrepresentation of Engineer B's capabilities or capacity to perform, requiring the capability to maintain honest representation standards in competitive solicitation.
Engineer A solicited Engineer B's clients for his new firm while still employed during the notice period.
Engineer A's solicitation of Engineer B's clients upon receiving the termination notice, which needed to be conducted without false or misleading statements about Engineer B's firm.
Engineer A Departing Engineer Client Solicitation Honesty Non-Disparagement
Engineer A's notification to Engineer B's clients of intent to start a competing firm must have been conducted without false or misleading statements about Engineer B's firm.
Departing Engineer Former Employer Client Solicitation Honesty Constraint
Engineer A was constrained to conduct all solicitation of Engineer B's clients honestly and without misrepresentation of Engineer B's capabilities or capacity to perform, prohibiting any disparagement of Engineer B's firm in the course of soliciting those clients.
NSPE Code Section III.7; non-deception provisions
Engineer A Employed Engineer Specialized Project Knowledge Consent Requirement
Engineer A's solicitation of Engineer B's clients raised the question of whether any solicitation targeted specific projects on which Engineer A had gained specialized knowledge during employment.
Employed Engineer Specialized Project Knowledge Consent-Required Competition Constraint
Engineer A was constrained from engaging in promotional efforts or negotiations for work on specific projects for which Engineer A had gained particular and specialized knowledge while employed by Engineer B, without the consent of all interested parties, even after actual departure.
NSPE Code Section III.4.a; NSPE BER Case 77-8
Engineer A Employer-Initiated Termination Notice Client Solicitation Timing Permissibility Assessment
Employer-Initiated Termination Notice Client Solicitation Timing Permissibility Assessment Capability
Engineer A needed the capability to assess whether soliciting Engineer B's clients immediately upon receiving the employer-initiated termination notice was ethically permissible, given that the termination was employer-initiated rather than voluntary.
Engineer A received an employer-initiated termination notice and immediately solicited Engineer B's clients while continuing to work during the notice period.
Engineer A's immediate notification to Engineer B's clients upon receiving the November 15, 1982 termination notice, raising the question of whether this timing was permissible given the employer-initiated nature of the termination.
Engineer A Faithful Agent Duty of Loyalty Good Faith Disclosure Notice Period BER-82
The Board found that the duty to disclose is an essential aspect of the faithful agent obligations of loyalty and good faith, and that covert promotional activity to the employer's detriment is incompatible with those obligations.
Engineer A was constrained by the faithful agent duty under NSPE Code Section I.4 to recognize obligations of loyalty, good faith, and disclosure to Engineer B during the notice period — obligations that were irreconcilable with covert promotional activity to Engineer B's detriment, including solicitation of Engineer B's current clients without disclosure.
An engineer is expected to act, at all times in professional matters for the employer, as a faithful agent and trustee (Section I.4.).
Throughout the active employment relationship, including the notice period
An essential aspect of those is the duty to disclose.
Certainly it is not possible for an engineer to meet those obligations to the employer if the engineer is engaging in such promotional activity to the employer's detriment.
That requires the engineer to recognize both a duty of loyalty and good faith.
Engineer A Faithful Agent Notice-Period Active Solicitation Ethical Boundary
Engineer A immediately notified Engineer B's clients of intent to start a competing firm upon receiving the termination notice, while continuing to work for Engineer B for several additional months.
Employer-Initiated Termination Notice Pre-Departure Client Solicitation Ethical Boundary Constraint
Engineer A, having received an employer-initiated termination notice on November 15, 1982, was constrained from actively soliciting Engineer B's clients during the notice period while still employed and receiving compensation, because such active solicitation during continued employment constitutes competition by questionable methods and a breach of faithful agent duty, regardless of the employer's prior decision to terminate.
NSPE Code Section I.4; NSPE Code Section III.7; NSPE BER Case 77-11
November 15, 1982 through actual termination date
Engineer A Improper Competitive Method Active Solicitation During Employment
Engineer A notified Engineer B's clients of intent to start a competing firm immediately upon receiving the termination notice, while continuing to work for Engineer B for several additional months.
Improper Competitive Method Prohibition Constraint
Engineer A's active solicitation of Engineer B's clients during the notice period while still employed and receiving compensation from Engineer B constituted an attempt to obtain professional engagements through questionable methods — specifically, leveraging the employment relationship and access to client information to divert clients before departure.
NSPE Code Section III.7; NSPE Code Section I.4
Engineer A No-Compete Agreement Absence Ethical Obligation Persistence Recognition
No-Compete Agreement Absence Ethical Obligation Persistence Recognition Capability
Engineer A needed the capability to recognize that the absence of a formal no-compete agreement did not eliminate his ethical obligations — including faithful agent duties, honest representation, and specialized knowledge constraints — during and after the notice period.
Engineer A's departure and competitive solicitation occurred without a formal no-compete agreement, but ethical obligations persisted.
The case's analysis that ethical obligations persist regardless of whether a formal no-compete agreement exists, requiring Engineer A to recognize that legal permissibility does not establish ethical permissibility.
Engineer A No Written Non-Compete Post-Departure Solicitation Permissibility
No written non-compete agreement existed between Engineer A and Engineer B, establishing the baseline permissibility of post-departure competition.
No-Written-Non-Compete Post-Departure Competitive Solicitation Permissibility Constraint
In the absence of any written non-compete agreement, Engineer A was not ethically prohibited from soliciting Engineer B's clients after actual departure — but this post-departure permissibility did not retroactively legitimize solicitation conducted during the active employment notice period.
NSPE Code; NSPE BER Case 77-11; free and open competition framework
Engineer A Notice-Period Faithful Agent Continued Performance Boundary Maintenance
Notice-Period Faithful Agent Continued Performance Boundary Maintenance Capability
Engineer A needed the capability to maintain faithful agent conduct toward Engineer B during the several months of continued employment following the termination notice, correctly identifying the boundary between permissible competitive preparation and impermissible conduct.
Engineer A continued working for Engineer B for several months after receiving the termination notice while having already solicited Engineer B's clients.
Engineer A's continuation of work for Engineer B for several additional months after the November termination notice while simultaneously having notified Engineer B's clients of his new firm.
Engineer A Post-Departure Firm Brochure Personnel Listing Correction Initiation
Post-Departure Firm Brochure Personnel Listing Correction Initiation Capability
Engineer A needed the capability to take affirmative steps — upon receiving the termination notice and upon actual departure — to ensure that Engineer B's marketing materials were promptly corrected to remove his name, including communicating to Engineer B the obligation to update materials.
Engineer B continued distributing brochures listing Engineer A as a key employee both during the notice period and after actual termination, creating an obligation for Engineer A to initiate correction.
Engineer A's obligation to affirmatively act to correct Engineer B's continued use of brochures listing him as a key employee both during the notice period and after actual termination.
Engineer B distributed a previously printed brochure listing Engineer A as one of Engineer B's key employees, and continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A.
Engineer A Post-Departure Former-Client Solicitation Permissibility BER-82
The Board explicitly preserved BER Case 77-11's holding that post-departure solicitation of former clients is permissible, distinguishing it from the impermissible pre-departure solicitation of current clients at issue in BER Case 82-5.
Engineer A, after fully severing all employment ties with Engineer B, was not ethically prohibited from soliciting Engineer B's former clients for competing professional services — provided such solicitation did not involve specialized project knowledge gained during employment — as the BER Case 77-11 permissive holding remained applicable to the post-departure context.
NSPE Code; BER Case 77-11; BER Case 82-5
We do not mean to suggest than an employee who severs all ties with the employer and then seeks to contact clients of the employer in order to offer engineering services is in violation of the Code.
After actual cessation of employment with Engineer B
Nor do we wish to suggest any restraint exists upon one's absolute right to select in all cases, the engineer of one's choice.
To the contrary, those were the facts of Case 77-11 and that case remains a proper interpretation of the Code.
Engineer A Pre-Departure Internal Planning Non-Violation Boundary
The case distinguishes between permissible pre-departure planning and impermissible active solicitation during the notice period.
Pre-Departure Internal Planning Without Overt Action Non-Violation Constraint
Engineer A's internal planning and decision to form a competing firm — prior to taking overt promotional action such as notifying Engineer B's clients — did not itself constitute an ethical violation; the ethical constraint is triggered only when planning crosses into active solicitation during the employment period.
NSPE Code; NSPE BER precedent on pre-departure planning
Prior to November 15, 1982 notification to clients
Engineer A Questionable Competition Methods Covert Solicitation Non-Disclosure BER-82
The Board found that Engineer A's covert solicitation of Engineer B's current clients without disclosure constituted competition by questionable methods under Section III.7, independent of and in addition to the Section I.4 faithful agent violation.
Employed Engineer Current-Client Solicitation Employer Non-Disclosure Questionable Competition Constraint
Engineer A was constrained from competing with Engineer B through questionable methods under NSPE Code Section III.7 — a constraint violated by the combination of failing to act as a faithful employee and failing to disclose the competitive solicitation activity to Engineer B, with the Board finding that Engineer A knew or should have known the conduct was problematic and dubious even if not certain it was unethical.
by failing to act as a faithful employee and by failing to disclose the actions to Engineer B, Engineer A engaged in questionable methods of competition.
During the notice period while still employed by Engineer B
Even if Engineer A was not certain that the actions constituted unethical conduct, Engineer A knew or should have known that they were problematic and dubious and raised the possibility of an ethical violation.
Therefore, we are of the view that Engineer A was in violation of Section III.7.
Engineer A Specialized Knowledge Current-Client Solicitation Full-Disclosure Prerequisite BER-82
The Board addressed this as a conditional finding — the facts did not confirm whether Engineer A had actually used specialized knowledge, but established the constraint as applicable if such knowledge was used without disclosure.
Employed Engineer Specialized Knowledge Current-Client Solicitation Full-Disclosure Prerequisite Constraint
Engineer A was constrained, to the extent he had gained particular and specialized knowledge about Engineer B's clients' projects during employment, from engaging in promotional efforts for work on those specific projects without full disclosure to Engineer B — with the Board finding that use of proprietary client information, trade secrets, or other valuable employer information without full disclosure would constitute a violation of NSPE Code Section III.4.a.
NSPE Code Section III.4.a; BER Case 82-5
A related question under the facts of this case is whether Engineer A violated a duty of disclosure to all interested parties by entering into promotional efforts for work as a principal in connection with work for which Engineer A had gained a particular and specialized knowledge.
During the notice period while still employed by Engineer B, and potentially extending post-departure for specific projects involving specialized knowledge
Assuming that in fact Engineer A had gained such knowledge and then sought such work without full disclosure to the employer, Engineer B, it appears that Engineer A would have violated Section III.4.a. of the Code.
Engineer A Specialized Knowledge Solicitation Restriction During and After Employment
Engineer A's solicitation of Engineer B's clients during the notice period raised the question of whether any solicitation involved projects on which Engineer A had gained specialized knowledge while employed.
Specialized Knowledge Post-Departure Competition Restriction Constraint
Engineer A was constrained from soliciting or competing for specific projects on which Engineer A had gained particular and specialized knowledge during employment with Engineer B, even after actual departure, as this specialized knowledge restriction applies regardless of the absence of a written non-compete agreement.
NSPE Code Section III.4.a; NSPE BER Case 77-11
Engineer A Three-Party Departure Interest Balancing Competitive Conduct BER-82
The Board's analysis implicitly applied the tripartite balancing framework, preserving client choice rights and Engineer A's post-departure mobility while finding that the covert current-client solicitation during employment impermissibly harmed Engineer B's goodwill interests.
Three-Party Engineer Departure Interest Balancing Constraint
Engineer A's departure-related competitive conduct was constrained by the tripartite interest-balancing framework requiring fair consideration of (1) Engineer B's legitimate interest in maintaining client goodwill, (2) Engineer A's right to professional mobility and independent practice, and (3) Engineer B's clients' right to choose their engineer — with the Board finding that Engineer A's covert solicitation of current clients while employed impermissibly subordinated Engineer B's goodwill interests through deceptive means.
Throughout the notice period and post-departure competitive activities
We have often held that (the Code) is not to be interpreted to give an engineer or firm a right to prevent other engineers from attempting to serve former clients of other firms.
Engineer A Tripartite Departure Conduct Interest Balancing
Tripartite Departure Conduct Interest Balancing Capability
Engineer A needed the capability to evaluate his departure-related conduct by balancing his own legitimate interest in establishing a new practice, Engineer B's legitimate interest in protecting client relationships, and the clients' legitimate interest in freely choosing their engineering service providers.
Engineer A's departure conduct involved competing interests among himself, Engineer B, and Engineer B's clients.
Engineer A's decision to immediately solicit Engineer B's clients upon receiving the termination notice, which required balancing all three competing interests to determine whether the timing and manner of solicitation was ethically appropriate.
Engineer A Tripartite Departure Interest Balancing Solicitation Conduct Assessment
The case presents a classic three-party departure scenario requiring balancing of Engineer A's mobility rights, Engineer B's goodwill interests, and clients' free choice of engineer.
Tripartite Departure Interest Balancing Framework Application Constraint
Engineer A's solicitation conduct during the notice period must be assessed against the tripartite framework balancing: (1) Engineer A's right to professional mobility and career development; (2) Engineer B's legitimate interest in maintaining client goodwill; and (3) clients' right to choose their engineer — with no single interest categorically paramount.
NSPE BER Cases 77-11, 79-10, 86-5; tripartite departure interest balancing principle
November 15, 1982 through actual termination and post-departure period
Engineer A's duty as faithful agent/trustee during Engineer A's continued employment with Engineer B
An engineer is expected to act, at all times in professional matters for the employer, as a faithful agent and trustee... As an employee of Engineer B, Engineer A could not ethically use proprietary information concerning clients, trade secrets, or other valuable information of the employer without full disclosure to the employer.
Engineer A's duty as faithful agent/trustee
Engineer A's continued employment with Engineer B
Entity1 occurs entirely within the duration of Entity2
Engineer A's solicitation of Engineer B's current clients during Engineer A's continued employment with Engineer B
Engineer A continued to work for Engineer B for several additional months after the November termination notice... Engineer A was still employed by Engineer B when Engineer A notified the clients and others of the offer of professional services.
Engineer A's solicitation of Engineer B's current clients
Engineer B BER Dual-Precedent Brochure Personnel Misrepresentation Spectrum Triangulation
BER Dual-Precedent Brochure Personnel Misrepresentation Spectrum Triangulation Capability
Engineer B needed the capability to retrieve and triangulate between BER precedent cases on brochure personnel misrepresentation to correctly locate the present scenario — involving a terminated key employee listed post-departure — on the spectrum from permissible to impermissible, identifying the critical factual distinctions that determine which precedent governs.
Engineer B's brochure distribution conduct required application of BER precedent framework to determine ethical obligations.
The ethical analysis of Engineer B's brochure distribution conduct required triangulation between BER precedents to determine whether the key employee listing during and after the notice period constituted a violation.
Engineer B BER Intent-Differentiated Misrepresentation Severity Calibration
The brochure was previously printed, suggesting possible inadvertence in initial distribution, but continued use well after actual termination raises questions about intent.
BER Precedent Intent-Differentiated Misrepresentation Severity Calibration Constraint
The ethical assessment of Engineer B's continued brochure distribution must calibrate violation severity to the degree of intent demonstrated — distinguishing between intentional enhancement of firm qualifications (clear violation under BER Case 83-1) and inadvertent oversight without malice (not a violation under BER Case 90-4) — while prohibiting use of inadvertence as a blanket shield against all ethical scrutiny.
NSPE BER Case 83-1; NSPE BER Case 90-4; intent-differentiated misrepresentation analysis
From November 15, 1982 through post-termination period
Engineer B BER Multi-Precedent Brochure Personnel Misrepresentation Synthesis
BER Multi-Precedent Brochure Personnel Misrepresentation Synthesis Capability
Engineer B needed the capability to retrieve, analyze, and synthesize multiple BER precedent cases addressing engineering firm brochure personnel misrepresentation to identify the critical factual distinctions and extract transferable normative principles applicable to the present scenario.
Engineer B's brochure distribution conduct required multi-precedent synthesis to determine the applicable ethical framework.
The ethical analysis of Engineer B's brochure distribution conduct required synthesis of multiple BER precedents to determine the applicable ethical standard for key employee listing after termination notice.
Engineer B Brochure Distribution Intent-and-Purpose Evidence Assessment
Brochure Distribution Intent-and-Purpose Evidence Assessment Capability
Engineer B needed the capability to assess whether the continued distribution of the brochure listing Engineer A was motivated by the intent and purpose to enhance the firm's qualifications — the second required element of the dual-element misrepresentation test — particularly given that Engineer B had actual knowledge of Engineer A's departure.
Engineer B distributed the brochure with actual knowledge of Engineer A's termination, raising the intent-and-purpose element of the misrepresentation analysis.
Engineer B's continued distribution of the brochure after having actual knowledge of Engineer A's termination, which constitutes evidence of intent to enhance qualifications through the misrepresentation.
Engineer B Brochure Misrepresentation Case-by-Case Pertinence Calibration
Brochure Misrepresentation Case-by-Case Pertinence Calibration Capability
Engineer B needed the capability to assess, on a case-by-case basis, whether the continued listing of Engineer A as a key employee in the firm's brochure constituted a misrepresentation of pertinent facts, evaluating factors including Engineer A's key employee designation, uniqueness of expertise, and the proportion of firm services affected.
Engineer B's continued brochure distribution required case-by-case assessment of pertinence across two distinct phases: the notice period and post-actual-termination.
Engineer B's obligation to conduct a case-by-case pertinence assessment rather than applying a categorical rule, particularly to distinguish the notice-period scenario from the post-actual-termination scenario.
Engineer B Errata Sheet Expeditious Correction Mechanism Deployment
Errata Sheet Expeditious Correction Mechanism Deployment Capability
Engineer B needed the capability to identify and deploy low-cost correction mechanisms — including errata sheets, cover letters, or strike-outs — upon receiving actual knowledge of the inaccuracy in the brochure at the moment of issuing the termination notice to Engineer A.
Engineer B had actual knowledge of the brochure inaccuracy from the moment of issuing the termination notice but failed to deploy correction mechanisms.
Engineer B's failure to employ available low-cost correction mechanisms after issuing the termination notice, instead continuing to distribute the inaccurate brochure during the notice period and after actual termination.
Engineer B distributed a previously printed brochure listing Engineer A as one of Engineer B's key employees
continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A.
Engineer B Errata Sheet Low-Cost Correction Mechanism Deployment
Engineer B continued to distribute the previously printed brochure without deploying any correction mechanisms after issuing the termination notice to Engineer A.
Errata Sheet Reasonable Period Correction Deployment Constraint
Engineer B was constrained to deploy available low-cost correction mechanisms — including errata sheets, cover letters, or strike-outs — within a reasonable period of time after issuing the termination notice to Engineer A, to prevent prospective clients from being misled by the brochure listing Engineer A as a key employee.
NSPE BER Case 83-1; marketing material correction standards
From November 15, 1982 onward through actual termination and beyond
Engineer B Errata Sheet Low-Cost Correction Mechanism Notice Period BER-82
The Board balanced the impracticability of universal written brochure amendment against the availability of low-cost correction mechanisms, establishing that the latter could be deployed during active negotiations without imposing an unreasonable burden on the firm.
Engineer B was constrained to deploy available low-cost correction mechanisms — including errata sheets, cover letters, or strike-outs — within a reasonable period during the notice period to address the brochure's misleading listing of Engineer A as a key employee, with the Board finding that while a universal written amendment to all brochures was impracticable, the availability of low-cost mechanisms eliminated logistical justification for complete inaction during active client negotiations.
NSPE Code Sections II.5.a, III.3.a; BER Case 82-5
a requirement that Engineer B insert an addendum or an amendment in the brochure informing prospective clients that Engineer A would soon be leaving the firm is both impracticable and unnecessary.
From the date of termination notice issuance through Engineer A's actual departure
That would be a burden to all firms from the standpoint of both time and cost.
We do believe that during the interim period between Engineer A's being given notice of termination and his actual cessation of employment, Engineer B had an obligation, during negotiations with a prospective client, to inform the client of Engineer A's pending termination.
Engineer B Firm Principal Post-Departure Personnel Listing Prompt Removal
Firm Principal Post-Departure Personnel Listing Prompt Removal Capability
Engineer B needed the capability to promptly identify and remove Engineer A from all firm brochures and marketing materials upon issuing the termination notice and upon Engineer A's actual departure, recognizing that continued listing constituted deceptive advertising.
Engineer B continued distributing brochures listing Engineer A as a key employee after issuing the termination notice and after Engineer A's actual departure.
Engineer B's failure to remove Engineer A from the firm brochure both during the notice period and well after actual termination, demonstrating the need for this capability.
Engineer B Free Enterprise Departure Right Non-Ethical-Proscription Boundary Recognition
Free Enterprise Departure Right Non-Ethical-Proscription Boundary Recognition Capability
Engineer B needed the capability to recognize that Engineer A's decision to depart and establish a competing firm — even while still employed during the notice period — was a legitimate exercise of free enterprise rights that could not be ethically proscribed, and to correctly distinguish this permissible departure from the manner of departure which remained subject to ethical constraints.
Engineer B received notice that Engineer A intended to start a competing firm, requiring recognition of Engineer A's free enterprise departure rights.
The case's analysis that Engineer B was obligated to recognize Engineer A's free enterprise right to depart and compete, even though Engineer B had legitimate interests in protecting client relationships.
Engineer B Inadvertent Brochure Inaccuracy Expeditious Correction Non-Condoning
The brochure was previously printed, suggesting the initial distribution may have been inadvertent, but Engineer B's continued use well after actual termination raises the question of whether corrective action was taken.
Inadvertent Marketing Inaccuracy Non-Condoning Expeditious Correction Constraint
Even if Engineer B's continued distribution of the brochure listing Engineer A was found to reflect inadvertent oversight rather than intentional misrepresentation, Engineer B was nonetheless constrained to take expeditious corrective action to eliminate any false impression created — a finding of non-violation does not license continued inaccuracy.
NSPE BER Case 90-4; inadvertent inaccuracy correction standards
From the point of actual knowledge of Engineer A's departure onward
Engineer B Interim Negotiation Pending-Departure Disclosure Obligation
From the moment Engineer A received formal termination notice through Engineer A's actual formal departure
Prospective clients of Engineer B's firm
Engineer B had an obligation, during negotiations with a prospective client, to inform the client of Engineer A's pending termination
Pending Employee Departure Prospective Client Disclosure Obligation State
Engineer B's obligation to disclose Engineer A's pending termination to prospective clients during active negotiations in the interim period
Engineer A's formal departure (at which point the obligation escalated to complete cessation of brochure use)
That could easily mislead potential clients into believing that Engineer A, noted as a key employee, would be available in the firm for consultation on future projects
a requirement that Engineer B insert an addendum or an amendment in the brochure informing prospective clients that Engineer A would soon be leaving the firm is both impracticable and unnecessary
Engineer B giving Engineer A formal notice of termination while Engineer A remained named as a key employee in the firm's promotional brochure and while the firm continued to engage prospective clients
Engineer B Key-Employee vs Non-Key-Employee Brochure Listing Materiality Distinction
Key-Employee vs Non-Key-Employee Brochure Listing Materiality Distinction Capability
Engineer B needed the capability to recognize that listing Engineer A as a 'key employee' — as opposed to a non-key employee — in the firm's promotional brochure constituted a material misrepresentation of pertinent facts, triggering heightened corrective obligations.
Engineer B's brochure specifically listed Engineer A as a 'key employee,' which is the critical factual distinction determining the ethical obligations.
The case's specific identification of Engineer A as a 'key employee' in Engineer B's brochure, which is the critical factual element that determines the materiality of the misrepresentation and the stringency of the corrective obligation.
Engineer B Key Employee Status Materiality Threshold Brochure Listing Assessment
The brochure listed Engineer A as one of Engineer B's 'key employees,' making the key employee status determination central to the ethical analysis.
Key Employee Status Materiality Threshold Brochure Listing Constraint
Engineer B's ethical obligation regarding the brochure listing Engineer A turns critically on whether Engineer A was a 'key employee' — if so, continued listing after departure constitutes a per se misrepresentation of pertinent facts; if not, a case-by-case materiality assessment is required — and Engineer B cannot treat the absence of an explicit 'key employee' label as a blanket shield against misrepresentation findings.
NSPE BER Case 83-1; key employee materiality threshold analysis
Engineer B Logistical Difficulty Non-Excuse Brochure Correction Delay
Engineer B continued to use the previously printed brochure, suggesting that the cost or difficulty of reprinting may have been a factor in the failure to correct the inaccuracy.
Logistical Difficulty Non-Excuse for Marketing Correction Delay Constraint
Engineer B cannot use the logistical difficulty of reprinting previously printed brochures as justification for indefinite delay in correcting the misrepresentation of Engineer A as a current key employee — the availability of low-cost correction mechanisms such as errata sheets eliminates any logistical excuse for delay.
Engineer B Marketing Material Accuracy Currency Maintenance Notice Period BER-82
Engineer B, as the person who terminated Engineer A, had actual knowledge of the impending departure from the moment of issuing the notice, yet continued to distribute brochures listing Engineer A as a key employee both during the notice period and after actual departure.
Marketing Material Accuracy and Currency Maintenance Constraint
Engineer B was constrained to maintain the accuracy and currency of the firm's promotional brochure with respect to personnel listings — an obligation triggered at the moment Engineer B issued the termination notice to Engineer A, because from that moment Engineer B had actual knowledge that the brochure's listing of Engineer A as a key employee would become or was already misleading to prospective clients.
Certainly, Engineer B was well aware of the impending termination of Engineer A. Engineer B was the very person who terminated Engineer A.
From the date of termination notice issuance through and beyond Engineer A's actual departure
Engineer B distributed the brochure while Engineer A was still employed but had been given a notice of termination by Engineer B.
That could easily mislead potential clients into believing that Engineer A, noted as a key employee, would be available in the firm for consultation on future projects.
Engineer B Marketing Material Accuracy Currency Maintenance Obligation
Engineer B continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A, without updating or correcting the materials.
Engineer B was constrained to continuously maintain and update the firm's promotional brochure to ensure it accurately reflected current personnel, prohibiting the continued use of outdated materials listing Engineer A as a key employee after Engineer A's departure was known.
NSPE Code Section II.5.a; NSPE Code Section III.3.a; marketing material accuracy standards
From November 15, 1982 (when departure was known) onward
Engineer B Marketing Material Accuracy and Currency Maintenance
Marketing Material Accuracy and Currency Maintenance Capability
Engineer B needed the capability to actively maintain and update the firm's promotional brochure to ensure it remained accurate and non-deceptive regarding current key personnel, recognizing that continued distribution of outdated materials constitutes a breach of professional ethics.
Engineer B distributed a previously printed brochure that had become inaccurate upon issuance of the termination notice to Engineer A.
Engineer B's continued distribution of a 'previously printed brochure' listing Engineer A as a key employee, demonstrating failure to maintain marketing material accuracy and currency.
Engineer B Non-Key-Employee Departure Notice-Period Brochure Conditional Permissibility Assessment
Non-Key-Employee Departure Notice-Period Brochure Conditional Permissibility Assessment Capability
Engineer B needed the capability to assess whether continued distribution of the existing printed brochure listing Engineer A during the active notice period was conditionally permissible — evaluating Engineer A's key employee designation, the uniqueness of his expertise, and whether distribution was motivated by intent to enhance qualifications — and to recognize that the key employee designation in this case likely precluded such conditional permissibility.
Engineer B distributed the brochure during the notice period when Engineer A was still employed but had been given termination notice.
Engineer B's distribution of the brochure during the notice period (between November 15, 1982 and Engineer A's actual termination), which required assessment of conditional permissibility given Engineer A's key employee status.
Engineer B Notice-Period Active-Negotiation Prospective-Client Pending-Departure Oral Disclosure BER-82
The Board established a calibrated middle-ground obligation for the notice period: oral disclosure during active negotiations is required, but universal written brochure amendment is not — balancing the prospective client's material interest in accurate personnel information against the practical burden on firms of correcting all printed materials during a notice period.
Notice-Period Prospective-Client Pending-Departure Oral Disclosure Constraint
Engineer B was constrained, during the interim period between issuing the termination notice to Engineer A and Engineer A's actual cessation of employment, to orally inform prospective clients during active negotiations of Engineer A's pending termination — while not being required to insert written addenda into every printed brochure distributed during that period, as such a universal written correction requirement would be impracticable and unnecessarily burdensome.
From the date of termination notice (November 15, 1982) through the date of Engineer A's actual departure
Engineer B Notice-Period Brochure Prospective Client Pending Departure Disclosure
Engineer B distributed a previously printed brochure listing Engineer A as a key employee during the notice period, when Engineer A had already been given termination notice.
Notice-Period Brochure Personnel Prospective Client Appraisal Constraint
During the notice period after issuing the termination notice to Engineer A on November 15, 1982, Engineer B was constrained to affirmatively apprise each prospective client — during active negotiations — of Engineer A's pending termination when distributing brochures listing Engineer A as a key employee, so that prospective clients could make informed qualification assessments.
NSPE Code Section II.5.a; NSPE BER Case 83-1
November 15, 1982 through Engineer A's actual termination date
Engineer B Pertinent Fact Dual-Element Misrepresentation Test Brochure Application
Pertinent Fact Dual-Element Misrepresentation Test Application Capability
Engineer B needed the capability to correctly apply the two-part misrepresentation test — assessing whether the listing of Engineer A as a key employee constituted a 'pertinent fact' and whether distribution was motivated by intent to enhance qualifications — to determine the ethical status of continued brochure distribution.
Engineer B's continued brochure distribution after issuing the termination notice and after actual termination required application of the dual-element misrepresentation test.
Engineer B's obligation to evaluate the continued distribution of the brochure listing Engineer A against both elements of the pertinent fact test, particularly after actual termination when both elements were clearly satisfied.
Engineer B Pertinent Fact Dual-Element Misrepresentation Test Brochure Assessment
Engineer B distributed a previously printed brochure listing Engineer A as a key employee both during the notice period and well after actual termination, raising the dual-element misrepresentation question.
Pertinent Fact Dual-Element Misrepresentation Prohibition Constraint
Engineer B's continued distribution of the brochure listing Engineer A as a key employee must be assessed against both elements of the pertinent fact misrepresentation test: (1) whether Engineer A's departure constituted a pertinent fact of clear and decisive relevance to prospective clients, and (2) whether the continued distribution was done with intent and purpose to enhance the firm's qualifications — both elements being required for a violation finding.
Engineer B Pertinent Fact Dual-Element Misrepresentation Test Brochure Personnel Listing BER-82
The Board applied the dual-element test to Engineer B's brochure distribution, finding that the inclusion of Engineer A's name constituted a misrepresentation of pertinent facts because clients may select a firm based on named engineers, and that Engineer B's awareness of the termination while continuing to distribute the brochure demonstrated the requisite intent.
Engineer B was constrained by the two-prong misrepresentation test under NSPE Code Section II.5.a — requiring concurrent presence of (1) misrepresentation of pertinent facts (facts of clear and decisive relevance, or 'relevant and highly significant') and (2) intent and purpose to enhance firm qualifications — with the Board finding both prongs satisfied: Engineer A's name was a pertinent fact because clients may select a firm based on named engineers' presence, and Engineer B's distribution of the brochure while aware of Engineer A's termination demonstrated intent to enhance firm qualifications.
the Code provision requires the Board to interpret that provision to determine whether (l) Engineer B in fact misrepresented 'pertinent facts' and (2) whether it was the intent and purpose of Engineer B to 'enhance the firm's qualifications and work.' Both prongs must be present for a violation of Section II.5.a. to exist.
Throughout the period of brochure distribution listing Engineer A as a key employee
'Pertinent facts' are those facts that have a clear and decisive relevance to a matter at hand.
The facts presented in the case appear to demonstrate that Engineer B acted with 'intent and purpose' in distributing the misleading brochure.
it is clear, therefore, that the inclusion of the name of Engineer A in the firm's brochure constituted a misrepresentation of 'pertinent facts.'
Engineer B Post-Actual-Termination Brochure Personnel Listing Absolute Prohibition Self-Application
Post-Actual-Termination Brochure Personnel Listing Absolute Prohibition Self-Application Capability
Engineer B needed the capability to recognize and self-apply the absolute prohibition on distributing brochures listing Engineer A as a current key employee after Engineer A's actual termination, understanding that post-actual-termination listing constitutes an unambiguous misrepresentation regardless of cost or intent.
Engineer B continued distributing brochures listing Engineer A as a key employee well after Engineer A's actual termination.
Engineer B's continued use of the brochure listing Engineer A 'well after Engineer B did in fact terminate Engineer A,' demonstrating the failure to apply this absolute prohibition.
Engineer B Post-Departure Key Employee Brochure Distribution Absolute Prohibition
Engineer B continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A.
Post-Departure Key Employee Brochure Distribution Prohibition Constraint
Engineer B was absolutely prohibited from distributing promotional brochures listing Engineer A as a key employee after Engineer A's actual termination, regardless of the cost of reprinting or the fact that the brochures were previously printed, because Engineer A's actual departure constituted a pertinent fact of clear and decisive relevance to prospective clients.
From Engineer A's actual termination date onward
Engineer B's Clients Prospective Engineering Services Client Relying on Firm Brochure
{'reliance_type': 'Relied on brochure listing Engineer A as available key employee', 'dual_solicitation': 'Also solicited by Engineer A for his new competing firm'}
Clients of Engineer B who received the outdated brochure listing Engineer A as a key employee after his termination, and who were also solicited by Engineer A for future work with his new firm.
{'type': 'client_of', 'target': 'Engineer B Brochure-Misrepresenting Terminating Employer Engineer'}
{'type': 'recipient_of_brochure_from', 'target': 'Engineer B Brochure-Misrepresenting Terminating Employer Engineer'}
{'type': 'solicited_by', 'target': 'Engineer A Pre-Departure Client-Soliciting Termination-Notified Engineer'}
Prospective Engineering Services Client Relying on Firm Brochure
Engineer B's Current Clients Prospective Brochure-Relying
{'harm_type': 'Misled about personnel availability during firm selection', 'selection_basis': "May have selected or considered selecting firm based on Engineer A's listed presence", 'protection_right': "Right to accurate disclosure of Engineer A's pending termination during negotiations"}
Engineer B's current and prospective clients who received marketing brochures listing Engineer A as a key employee, potentially making selection decisions based on Engineer A's listed availability, and who were misled both during the notice period and after Engineer A's departure.
{'type': 'misled_by', 'target': 'Engineer B'}
{'type': 'prospective_client_of', 'target': 'Engineer B'}
{'type': 'solicited_by', 'target': 'Engineer A'}
Brochure-Relying Engineering Services Consumer
The client may be familiar with an individual member of the firm and the selection of that firm may be based on the presence of that engineer in the firm as represented in the brochure
Engineer B's continued use of brochure with Engineer A's name after Engineer A's formal termination
Engineer B's continued use of brochure with Engineer A's name
Engineer B's distribution of brochure during interim period meets Engineer B's continued use of brochure after formal termination
Engineer B's distribution of brochure during interim period
Engineer B's continued use of brochure after formal termination
Entity1 ends exactly when Entity2 begins
Engineer B's distribution of brochure listing Engineer A as key employee during interim employment period (notice to formal termination)
During that period, Engineer B distributed a previously printed brochure listing Engineer A as one of Engineer B's key employees.
Engineer B's distribution of brochure listing Engineer A as key employee
interim employment period (notice to formal termination)
Engineer B's ethical obligation to cease using brochure starts period after Engineer A's formal dismissal
once Engineer A had been formally dismissed, Engineer B had an ethical obligation to cease using the brochure with Engineer A's name in it entirely.
Engineer B's ethical obligation to cease using brochure
period after Engineer A's formal dismissal
Entity1 and Entity2 start at the same time, Entity1 ends first
Engineer B's obligation to verbally disclose Engineer A's pending termination to prospective clients during interim period between termination notice and formal termination
Engineer B's obligation to verbally disclose Engineer A's pending termination to prospective clients
interim period between termination notice and formal termination
Engineer B's termination notice before Engineer A's formal termination
On November 15, 1982 Engineer B notified Engineer A that Engineer B was going to terminate Engineer A... Engineer A continued to work for Engineer B for several additional months after the November termination notice.
Engineer B's termination notice to Engineer A before Engineer A's solicitation of Engineer B's current clients
On November 15, 1982 Engineer B notified Engineer A that Engineer B was going to terminate Engineer A... Engineer A thereupon notified clients of Engineer B that Engineer A was planning to start another engineering firm.
Engineer B's termination notice to Engineer A
continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A
BER in evaluating Engineer B's continued use of outdated brochure
Establishes Engineer B's obligation to update or correct the firm brochure listing Engineer A as a key employee after termination notice was given and after actual termination occurred
Employment relationship legally ends; Engineer A's duty of loyalty as employee dissolves; Engineer B's obligation to accurately represent staff composition becomes urgent and unambiguous; Engineer A gains full right to compete in the marketplace
Several months after November 15, 1982 (exact date unspecified)
Engineer A's employment with Engineer B formally ends, marking a definitive shift in the legal and ethical relationship between the parties. This event resets the obligation landscape: some duties of loyalty dissolve while others, particularly around confidentiality and honest representation, persist.
A multi-month window of ethically fraught dual status is established; all actions taken during this period are subject to heightened scrutiny under professional codes; the ethical obligations of both parties are fully active and undiminished
Shortly after November 15, 1982 through formal termination date
Following the termination notice, Engineer A continues working for Engineer B for several additional months, creating an extended period of dual obligation where Engineer A is simultaneously a current employee and a prospective competitor. This period becomes the central ethical battleground of the case.
Marketing Material Accuracy Correction Standard
BER in evaluating Engineer B's failure to correct promotional materials
Requires Engineer B to take expeditious steps to correct or update the brochure once Engineer A's departure was known, rather than continuing to distribute materials listing Engineer A as a key employee
Misrepresentation in Business Dealings Standard
BER in evaluating Engineer B's continued distribution of inaccurate brochure to clients
Addresses Engineer B's implicit misrepresentation to clients that Engineer A remained a key employee of the firm, when in fact Engineer A had been terminated or was under termination notice
Third parties are now operating with false information about Engineer B's firm; Engineer B's credibility and professional integrity are at risk; an ongoing obligation to correct the record is triggered immediately
During interim employment period following November 15, 1982
As a result of Engineer B distributing brochures listing Engineer A as a key employee during the notice period, clients and prospective clients receive materially false information about the firm's personnel. This misrepresentation affects third-party decision-making and constitutes a breach of honest representation obligations.
National Society of Professional Engineers
NSPE Code of Ethics – Section I.4 (Faithful Agent and Trustee)
Invoked to establish Engineer A's duty of loyalty, good faith, and disclosure to employer Engineer B while still employed; grounds the finding that soliciting current clients without disclosure violates the faithful agent obligation
NSPE Code of Ethics – Section II.5.a (Misrepresentation in Solicitation Materials)
Section II.5.a. of the Code specifically states that brochures or other presentations incident to the solicitation of employment shall not misrepresent pertinent facts concerning employers, employees, associates . . . with the intent and purpose of enhancing their qualifications and their work.
That is a clear misrepresentation of a pertinent fact with the intent to enhance the firm's qualifications and as such constitutes a violation of the Code.
Applied to evaluate Engineer B's conduct in distributing a promotional brochure listing Engineer A as a firm member after Engineer A had been given notice of termination and after Engineer A had left the firm; grounds the finding that Engineer B misrepresented pertinent facts with intent to enhance firm qualifications
NSPE Code of Ethics – Section III.3.a (Material Misrepresentation and Misleading Statements)
Section III.3.a. states in part that 'Engineers shall avoid use of statements containing a material misrepresentation of fact or omitting a material fact necessary to keep statements from being misleading; statements intended or likely to create an unjustified expectation....'
Referenced as additional guidance on Engineer B's obligation to avoid material misrepresentation or omission in promotional materials; Board uses it to calibrate the practical disclosure obligation during the interim termination period
NSPE Code of Ethics – Section III.4.a (Disclosure of Specialized Knowledge)
Applied to assess whether Engineer A violated a duty of disclosure by using particular and specialized knowledge gained during employment to seek work without full disclosure to employer Engineer B
NSPE Code of Ethics – Section III.7 (Questionable Methods of Competition)
Another issue related to the conduct of Engineer A is whether Engineer A violated Section III.7. by competing with Engineer B using 'questionable methods.'
we are of the view that Engineer A was in violation of Section III.7.
Applied to determine whether Engineer A's covert solicitation of current clients while still employed constituted competition by questionable methods
Engineer A notified clients of Engineer B that Engineer A was planning to start another engineering firm and would appreciate being considered for future work
Engineer A in deciding how to notify clients of planned new firm
Governs whether Engineer A's notification to Engineer B's clients while still employed was ethically permissible, particularly regarding solicitation and competition conduct
Post-Employment Client Solicitation Ethics Standard
BER in evaluating Engineer A's solicitation of Engineer B's clients
Provides normative grounding for evaluating Engineer A's conduct in notifying Engineer B's clients of intent to start a new firm while still employed and under termination notice
Clients might select the firm based on Engineer A's listed presence, creating an expectation that could not be met
Prospective clients would be affirmatively misled into believing Engineer A remained a key employee of the firm
Reputational harm to Engineer A through unauthorized use of name in firm promotional materials
Avoidance of misrepresentation in promotional materials
Honesty and truthfulness in all professional representations
Protection of public and client trust in engineering profession
Respect for former employee's professional identity
Continue promoting the firm to prospective clients using existing printed materials to secure future business, avoiding the cost and effort of reprinting updated brochures
Knowledge of professional obligations regarding accuracy of promotional materials
Managerial authority to withdraw or replace existing brochures
Understanding that personnel misrepresentation in promotional materials violates the Code
Well after Engineer A's formal termination
Duty to avoid statements containing material misrepresentation or omitting material facts (Section III.3.a.)
Duty to avoid statements intended or likely to create an unjustified expectation (Section III.3.a.)
Duty to cease using brochure containing Engineer A's name immediately upon formal termination
Prohibition on misrepresenting pertinent facts in promotional materials with intent to enhance qualifications (Section II.5.a.)
Well after Engineer A had been formally terminated, Engineer B continued to distribute the promotional brochure listing Engineer A as a key employee without correction or withdrawal. The Board found this to be a clear and unambiguous ethical violation constituting misrepresentation of pertinent facts with intent to enhance the firm's qualifications.
Post-Termination Brochure Continuation (Action 5) → Compounded Misrepresentation Established (Event 6)
Well after Engineer A had been formally terminated, Engineer B continued to distribute promotional brochures listing Engineer A as a key employee, compounding the misrepresentation beyond the notice period into a sustained and unambiguous ethical violation
Post-Termination Brochure Continuation (Action 5)
Had Engineer B ceased brochure distribution upon Engineer A's formal termination, the misrepresentation would have been limited to the notice period and could potentially have been characterized as administrative oversight rather than sustained deception
Compounded Misrepresentation Established (Event 6)
Brochures continuing to list Engineer A as current key staff after employment ended
Engineer B's continued deliberate distribution of outdated brochures post-termination
Formal termination of Engineer A (Event 5) creating definitive end of employment
Continued distribution of brochures listing a formally terminated employee as current key staff was alone sufficient to establish compounded, unambiguous misrepresentation with no defensible justification
Breach of trust relationship with employer
Competitive harm to Engineer B through use of confidential knowledge
Misappropriation of employer's proprietary client information
Full disclosure before using employer's proprietary knowledge for personal gain
Gain competitive advantage in soliciting Engineer B's current clients by leveraging specialized knowledge of client needs, projects, or circumstances acquired through employment
Ability to distinguish general professional knowledge from employer-specific proprietary information
Judgment about disclosure requirements when using specialized knowledge
Understanding of confidentiality obligations under the Code
During interim employment period, concurrent with client solicitation activities
Duty not to use proprietary information, trade secrets, or confidential client information without full disclosure to employer (Section III.4.a.)
Duty of disclosure to all interested parties regarding use of specialized knowledge
Duty of loyalty and good faith to employer (Section I.4.)
During the period of soliciting Engineer B's current clients while still employed, Engineer A faced the decision of whether to disclose to Engineer B any specialized or proprietary client knowledge being leveraged in solicitation efforts. The facts do not confirm whether such knowledge was used, but the Board analyzed this as a distinct ethical decision point.
During the period of soliciting Engineer B's current clients while still employed, Engineer A faced a decision about whether to use Engineer B's proprietary knowledge, with use of such knowledge materially aggravating the ethical breach of the underlying solicitation
Proprietary Knowledge Use Decision (Action 4)
Without access to Engineer B's proprietary knowledge, Engineer A's solicitation would have been less informed and less effective; the ethical breach would have been limited to the solicitation itself rather than also encompassing misappropriation
Current Client Solicitation (Action 2). Ethical Aggravation
Engineer A's access to Engineer B's proprietary information through employment
Engineer A's active solicitation of Engineer B's clients creating context for potential proprietary knowledge use
Engineer A's volitional decision on whether to deploy that knowledge in solicitation
Use of proprietary knowledge during client solicitation while still employed, combined with the solicitation itself, was sufficient to constitute a compounded ethical violation involving both conflict of interest and misappropriation of employer resources
Proprietary Knowledge Use Decision (Action 4) → Current Client Solicitation (Action 2) — Ethical Aggravation
Was it ethical for Engineer A to notify clients of Engineer B that Engineer A was planning to start a firm and would appreciate being considered for future work while still in the employ of Engineer B?
Should Engineer A have disclosed to Engineer B that Engineer A was actively soliciting Engineer B's clients during the notice period, and does the failure to make that disclosure independently constitute a breach of the faithful agent duty regardless of whether the solicitation itself was ethical?
Does the fact that Engineer B initiated the termination rather than Engineer A resigning alter the ethical calculus for Engineer A's pre-departure client solicitation, and should the Board have established a distinct ethical standard for employer-initiated versus employee-initiated departures?
What obligation, if any, did Engineer A have to proactively notify Engineer B's prospective clients that Engineer A's name appearing in Engineer B's brochure was misleading after Engineer A's actual termination, and does Engineer A share ethical responsibility for the misrepresentation perpetuated by Engineer B's continued brochure use?
Did Engineer A's use of specialized knowledge about Engineer B's clients—gained exclusively through employment—to target those specific clients for solicitation constitute an independent ethical violation beyond the mere act of solicitation, and should the Board have addressed this as a separate question?
Was it ethical for Engineer B to distribute a brochure listing Engineer A as a key employee in view of the fact that Engineer B had given Engineer A a notice of termination?
Does the principle of Client Autonomy in Engineering Service Provider Selection—which affirms clients' absolute right to choose their engineer—conflict with the Faithful Agent Trustee Duty owed to Engineer B, given that Engineer A's solicitation could be framed as merely informing clients of a choice they are entitled to make freely?
Does the At-Will Employment Symmetry principle—invoked to justify Engineer A's solicitation on the grounds that Engineer B could terminate Engineer A at will—conflict with the Questionable Competition Methods Prohibition, and can at-will reciprocity ever serve as an ethical justification for conduct that would otherwise violate loyalty obligations?
Does the Notice-Period Brochure Distribution Conditional Permissibility principle—which allows Engineer B to continue distributing the brochure provided oral disclosure is made—conflict with the Proactive Marketing Material Accuracy Obligation, which would seem to require correction of the written record rather than mere verbal qualification during negotiations?
Does the Former-Client Solicitation Permissibility principle—which would allow Engineer A to solicit Engineer B's clients after departure—conflict with the Specialized Knowledge Constraint, given that the very client relationships and project knowledge enabling post-departure solicitation were acquired exclusively during employment, making the temporal boundary between permissible and impermissible solicitation ethically unstable?
Was it ethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination?
From a deontological perspective, did Engineer A violate a categorical duty of loyalty to Engineer B by soliciting Engineer B's current clients during the notice period, regardless of whether Engineer B had initiated the termination and regardless of whether no written non-compete agreement existed?
From a consequentialist perspective, did Engineer A's pre-departure solicitation of Engineer B's clients produce net harm across all affected parties — Engineer B's business goodwill, the clients' informed decision-making, and the broader engineering profession's trustworthiness — that outweighed any benefit Engineer A gained from early competitive positioning?
From a virtue ethics perspective, did Engineer B demonstrate the professional virtue of honesty when distributing a brochure listing Engineer A as a key employee during the notice period without proactively disclosing Engineer A's pending termination to prospective clients, and does the Board's conditional permissibility ruling adequately capture the character standard expected of a firm principal?
From a deontological perspective, does Engineer B's continued post-termination distribution of a brochure listing Engineer A as a key employee constitute a categorical misrepresentation of fact that violates a duty of honesty owed simultaneously to prospective clients, to Engineer A whose professional identity is being exploited without consent, and to the engineering profession at large?
Would Engineer A's pre-departure solicitation of Engineer B's clients have been ethically permissible if Engineer A had first fully disclosed to Engineer B the intent to solicit those specific clients, obtained Engineer B's acknowledgment, and notified the clients openly rather than covertly — thereby satisfying the faithful agent duty while still exercising competitive mobility rights?
Would the Board's ethical assessment of Engineer A's solicitation conduct have differed if Engineer A had waited until after actual termination to contact Engineer B's former clients, and does the timing of Engineer B's termination notice create a morally relevant asymmetry that should have shifted the ethical balance in Engineer A's favor?
Would Engineer B's distribution of the brochure during the notice period have been unconditionally ethical — rather than conditionally ethical — if Engineer B had proactively issued an errata sheet or written addendum to all prospective clients disclosing Engineer A's pending departure at the time of each brochure distribution, rather than relying on oral disclosure only during active negotiations?
Would Engineer B's post-termination brochure distribution have remained ethically impermissible even if Engineer A had been listed as a non-key, peripheral employee rather than a key employee, and does the Board's absolute prohibition on post-termination brochure use depend on the materiality of the listed employee's role to prospective clients' contracting decisions?
Engineer A might begin seeking alternative employment immediately
Engineer A might contact current clients during the notice period
Firm brochures listing Engineer A as key employee would become inaccurate
Acted within managerial authority to make staffing decisions
Provided advance notice of termination to employee
Manage firm staffing in response to reduced workload by providing advance notice of termination to Engineer A
Awareness of promotional material contents
Knowledge of firm obligations under professional code
Engineer B formally notified Engineer A of pending termination due to lack of work, triggering a chain of ethical obligations for both parties. This was a deliberate managerial decision with foreseeable consequences for firm operations and personnel conduct.
Termination Notice Issuance (Action 1) → Employment Termination Notice Received (Event 1)
Engineer B formally notified Engineer A of pending termination due to lack of work, triggering a chain of subsequent decisions and events
Without the formal termination notice, Engineer A would have had no legal or ethical trigger to begin independent client solicitation or practice setup; subsequent events would not have occurred in this form
Employment Termination Notice Received (Event 1)
Engineer B's decision to issue formal termination notice
Existence of employment relationship between Engineer A and Engineer B
Stated justification of lack of work as grounds for termination
Formal issuance of termination notice alone was sufficient to create the legal and ethical context shift for Engineer A
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.82
Solicitation of clients without active contracts is resolved as permissible under free and open competition principles, even when conducted during the notice period following employer-initiated termination.
source_field=tensionresolution; confidence=0.95
The Board held that the employer-initiated termination does not license covert solicitation of current clients; the faithful agent duty persists until actual departure and requires disclosure of competitive activities.
source_field=tensionresolution; confidence=0.92
Loyalty prevails over the mobility interest during the active employment period; the termination notice shifts some moral responsibility but does not extinguish the loyalty duty.
source_field=tensionresolution; confidence=0.93
The Board held that the duty of disclosure is non-negotiable during active employment; the employer-initiated termination does not waive the employee's disclosure obligation.
source_field=tensionresolution; confidence=0.88
The Board treated the specialized knowledge issue as conditional on facts not established, but affirmed that disclosure would be required; the employment relationship amplifies rather than diminishes the constraint.
The Board distinguished Case 77-11 on two grounds — current vs. former clients, and active employment vs. post-departure — holding that both distinctions independently support a finding of violation.
source_field=tensionresolution; confidence=0.9
The employer-initiated nature of the termination shifts the ethical balance toward permitting solicitation, provided no active contracts are supplanted and no confidential knowledge is exploited.
source_field=tensionresolution; confidence=0.87
The constraint is project-specific and knowledge-specific, not a general competition prohibition; absent evidence of specialized knowledge exploitation, the solicitation remains within permissible bounds.
source_field=tensionresolution; confidence=0.85
The Board resolved the tension by affirming Case 77-11's protection of post-departure mobility while carving out the pre-departure current-client solicitation scenario as a distinct and prohibited category.
The Board held that the faithful agent breach and the competition methods violation are co-extensive in this case; the same conduct violates both provisions.
source_field=tensionresolution; confidence=0.83
Both elements are more readily satisfied post-actual-termination than during the notice period; the dual-element test provides a graduated analysis that distinguishes the two temporal phases of Engineer B's conduct.
No competing principle justifies continued use of the inaccurate brochure after actual termination; the correction obligation is absolute at this stage.
The Board distinguished the notice period (disclosure during negotiations required but reprinting not mandated) from the post-departure period (continued use absolutely prohibited).
source_field=tensionresolution; confidence=0.94
The conditional permissibility is defeated by Engineer B's failure to apprise clients of the changed employment status during active negotiations, transforming the notice-period distribution into a misrepresentation.
The Board rejected the argument that reprinting costs or impracticability excuse the misrepresentation; the intent-and-purpose element was satisfied by Engineer B's awareness of the termination and continued distribution.
The Board held that the post-departure distribution is a clear violation without qualification; the intent-and-purpose element is satisfied by Engineer B's awareness as the terminating party.
The disclosure obligation is not discharged by the practical difficulty of reprinting; a corrective cover letter or errata sheet during active negotiations would have satisfied the obligation.
Engineer A's solicitation of Engineer B's clients while still employed during the notice period creates tension with the loyalty obligation owed to the current employer, though this tension is substantially mitigated by the employer-initiat
Engineer A's solicitation of Engineer B's clients while still employed during the notice period raises the question of whether this crosses the boundary from permissible planning into prohibited promotional negotiation; the employer-initiat
Engineer A's notification to Engineer B's clients that he was starting a new firm and seeking future work is permissible to the extent those clients had no active, executed contracts with Engineer B for specific projects, because solicitati
Engineer A, having received an employer-initiated termination notice citing lack of work, exercised the reciprocal mobility right to begin soliciting prospective clients for a new engineering firm while still serving out the notice period.
Engineer A, upon receiving the termination notice and then upon actual departure, bore an obligation to take affirmative steps to ensure that Engineer B ceased representing Engineer A as a current key employee in brochures distributed to pr
If Engineer A gained particular and specialized knowledge about specific client projects during employment with Engineer B, Engineer A's solicitation of those specific clients for substantially similar work would require the consent of Engi
Engineer B's continued distribution of a brochure listing Engineer A as a key employee after Engineer A's actual termination violates the fundamental professional obligation of honesty by presenting a false picture of the firm's personnel t
Engineer B bore an affirmative, ongoing obligation to take proactive steps — errata sheets, cover letters, reprints — to ensure that brochures listing Engineer A remained accurate, and the failure to take any such measures during both the n
Engineer B, having issued a termination notice to Engineer A in November 1982, bore an obligation to apprise prospective clients of Engineer A's changed employment status whenever distributing the brochure listing Engineer A as a key employ
Engineer B's continued distribution of the previously printed brochure listing Engineer A as a key employee during the notice period (November 1982 through actual termination) is conditionally permissible only if Engineer B provided contemp
Engineer B's continued distribution of the brochure listing Engineer A as a key employee must be assessed against both elements: (1) whether Engineer A's listing constitutes a 'pertinent fact' to prospective clients' selection decisions, an
Once Engineer A was actually terminated, Engineer B had actual knowledge that the brochure listing Engineer A as a key employee was inaccurate; Engineer B's continued use of the brochure 'well after' actual termination without expeditious c
Engineer A contacted Engineer B's current clients — not former clients — while still employed, distinguishing the case from BER Case 77-11 where post-departure solicitation of former clients was permissible.
Engineer A's duty of loyalty to Engineer B as employer required refraining from covert competitive solicitation of Engineer B's current clients during the employment period, and required disclosure of any such activity.
Engineer A's failure to disclose competitive solicitation activities to Engineer B while still employed constituted an independent violation of the duty of disclosure inherent in the faithful agent relationship.
Engineer A, while still employed by Engineer B and having received a termination notice, solicited Engineer B's current clients without informing Engineer B, thereby breaching the faithful agent and trustee duty of loyalty, good faith, and
Engineer A's covert solicitation of Engineer B's current clients while employed constituted questionable methods of competition under Section III.7, because Engineer A knew or should have known the conduct was ethically problematic even if
The Board conditionally analyzed that if Engineer A had gained particular and specialized knowledge about Engineer B's clients' projects and then sought that work without full disclosure to Engineer B, a violation of Section III.4.a would r
Engineer A, upon receiving the termination notice and upon actual departure, was obligated to take affirmative steps to ensure that Engineer B's marketing materials no longer listed him as a current key employee, including notifying Enginee
Engineer A, upon receiving the termination notice and upon actual departure, was obligated to take affirmative steps to ensure that Engineer B's marketing brochure no longer listed Engineer A as a current key employee, including notifying E
Engineer B's distribution of brochures listing Engineer A as a key employee after termination notice and after actual departure violated the honesty obligation by creating a false impression of the firm's personnel composition to prospectiv
During the period between Engineer A's termination notice and actual departure, Engineer B was obligated to inform prospective clients during active negotiations of Engineer A's pending departure, rather than allowing the brochure to create
Once Engineer A had formally departed, Engineer B's continued distribution of brochures listing Engineer A as a key employee constituted an unambiguous misrepresentation of a pertinent fact with intent to enhance qualifications, with no per
Engineer B's continued distribution of a brochure listing Engineer A as a key employee — both during the notice period and after actual departure — satisfied both elements of the dual-element test: (1) Engineer A's name was a pertinent fact
The Board explicitly affirmed that no restraint exists on a client's absolute right to select the engineer of their choice, ensuring that the ethical constraints on Engineer A's solicitation methods do not translate into restrictions on cli
The Board affirmed that an engineer who severs all ties with an employer and then seeks to contact the employer's clients to offer engineering services does not violate the Code — preserving the engineer's mobility right — while simultaneou
Engineer A was obligated to refrain from competing with Engineer B through questionable methods — specifically, covertly soliciting Engineer B's current clients without disclosure while still employed — conduct that Engineer A knew or shoul
If Engineer A had gained particular and specialized knowledge about Engineer B's clients' projects during employment, Engineer A was obligated to make full disclosure to Engineer B before using that specialized knowledge in competitive soli
Engineer A was obligated to refrain from competing for any specific projects on which he had gained particular and specialized knowledge during his employment with Engineer B, recognizing that while general professional skills are freely po
Engineer B was obligated to ensure that the listing of Engineer A as a 'key employee' in the firm's promotional brochure accurately reflected Engineer A's current employment status, recognizing that prospective clients reasonably rely on su
Engineer B was obligated to actively maintain and update all public-facing marketing materials — including the firm brochure — to ensure they remained accurate and not deceptive as personnel changed, and this ongoing obligation was violated
Engineer B was obligated to promptly remove Engineer A from all firm marketing materials upon Engineer A's actual termination, and to refrain from distributing any materials listing Engineer A as a current key employee after that date, rega
Engineer B was obligated to recognize that Engineer A's decision to depart and establish a competing firm — even while still employed during the notice period — raised no general ethical proscription under the NSPE Code, and that any ethica
Engineer B was obligated to employ available low-cost correction mechanisms — including errata sheets inserted into existing brochures, cover letters accompanying distribution, or strike-outs on existing copies — rather than continuing to d
Engineer B was obligated to take reasonable proactive steps to ensure that the firm's printed brochures remained accurate and up-to-date, including implementing processes for timely review and updating of printed materials when personnel ch
Engineer B was obligated to take proactive steps to ensure that the firm's printed promotional brochure remained accurate as to personnel listings, including anticipating the foreseeable inaccuracy created by Engineer A's pending departure
Engineer B was obligated to evaluate the continued distribution of the brochure listing Engineer A as a key employee against both elements of the pertinent-fact misrepresentation test: (1) whether Engineer A's status as a key employee was p
Engineer B was obligated to ensure that the firm's promotional brochure satisfied both elements of the pertinent-fact misrepresentation test under NSPE Code Section II.5.a — that it did not misrepresent pertinent facts (element 1) with inte
Engineer B was absolutely obligated to cease distributing any promotional materials listing Engineer A as a current key employee after Engineer A was actually terminated, regardless of whether the materials were previously printed, and this
Engineer B was absolutely obligated to cease distributing any brochure listing Engineer A as a key employee immediately upon Engineer A's formal departure from the firm.
Engineer B was obligated, upon issuing the termination notice to Engineer A in November 1982, to take affirmative steps — including errata sheets, cover letters, or verbal disclosure — to apprise prospective clients receiving the firm's bro
Engineer B was obligated, during active negotiations with prospective clients occurring between the date of Engineer A's termination notice and Engineer A's actual departure, to inform those prospective clients of Engineer A's pending termi
Engineer B was obligated to take expeditious corrective action upon receiving actual knowledge — at the moment of issuing the termination notice — that the brochure listing Engineer A as a key employee was or would imminently become inaccur
Engineer B was obligated to take expeditious corrective action to eliminate any false impression created by the brochure listing Engineer A as a key employee — even if the initial distribution during the notice period was inadvertent or log
Engineer B was obligated to conduct a case-by-case assessment of whether continued listing of Engineer A as a key employee in the firm's brochure constituted a misrepresentation of a pertinent fact, considering whether Engineer A was highli
Engineer A was obligated to refrain from covertly soliciting Engineer B's current clients for competing professional services while still employed by Engineer B during the notice period, without disclosing such solicitation to Engineer B.
Engineer A was obligated to disclose to Engineer B that he was soliciting Engineer B's current clients for competing professional services while still employed during the notice period.
Engineer A was obligated to maintain faithful agent conduct toward Engineer B during the notice period — continuing to perform assigned duties, refraining from using employer resources for his new firm, and conducting client solicitation ho
Engineer A was obligated to maintain faithful agent conduct toward Engineer B during the notice period, including refraining from covertly diverting Engineer B's current client relationships to his new firm and from using his employment pos
Engineer A, having received an employer-initiated termination notice from Engineer B on November 15, 1982, was obligated to recognize that soliciting Engineer B's clients for future work with his new firm was ethically permissible under the
Client Autonomy in Engineering Service Provider Selection Affirmed as Absolute
Engineer B's clients' right to engage Engineer A's new firm
Current-Client Solicitation During Active Employment Prohibition Principle
The Board explicitly affirmed that no restraint exists on a client's absolute right to select the engineer of their choice, ensuring that the ethical constraints on Engineer A's solicitation methods do not translate into restrictions on client freedom to engage whomever they wish.
Client autonomy in engineer selection is an absolute right that the ethics code does not restrict; the ethical violations concern the methods of solicitation, not the client's ultimate choice.
Client Autonomy in Engineering Service Provider Selection
The Board carefully separated the engineer's conduct (regulated) from the client's choice (unregulated), affirming that ethical constraints on solicitation methods do not limit client freedom.
Engineer A Active Client Solicitation During Continued Employment
From shortly after November 15, 1982 termination notice through the actual termination date
Active Client Solicitation During Continued Employment State
Engineer A's direct solicitation of Engineer B's clients while still employed by Engineer B
Engineer A's actual departure from Engineer B's firm
Engineer A's decision to notify Engineer B's clients of plans to start a new firm immediately after receiving the termination notice
Engineer A At-Will Professional Mobility
Throughout the case, as the background condition enabling Engineer A's competitive actions
Engineer A was planning to start another engineering firm
Engineer A's baseline legal and ethical freedom to establish a competing practice in the absence of a written non-compete agreement
Not terminated within the case timeframe
Absence of any written non-compete or restrictive covenant between Engineer A and Engineer B
Engineer A Departing Engineer Former Employer Client Solicitation Honesty
Engineer A notified Engineer B's clients of his new firm and sought future work while still employed during the notice period.
Departing Engineer Former Employer Client Solicitation Honesty Obligation
Engineer A was obligated to conduct his solicitation of Engineer B's clients honestly, accurately, and without misrepresentation of Engineer B's capabilities or prospects, refraining from using knowledge of his own impending departure as a basis for making misleading or disparaging representations about Engineer B's ability to serve those clients.
well after Engineer B did in fact terminate Engineer A
Engineer A's post-employment status following actual termination by Engineer B
Engineer B's actual termination of Engineer A following the notice period of several months
Engineer A Insider Client Knowledge Competitive Advantage
Throughout Engineer A's employment with Engineer B and into the solicitation period
Engineer A could not ethically use proprietary information concerning clients, trade secrets, or other valuable information of the employer without full disclosure to the employer
Engineer A's possession of privileged knowledge about Engineer B's clients, trade secrets, and proprietary information
Full disclosure to Engineer B, or cessation of use of such information
Engineer A's employment with Engineer B giving access to client information, trade secrets, and other valuable employer information
Engineer A No Written Non-Compete Agreement
Absence of any formal written restriction on Engineer A's post-employment competitive activities vis-à-vis Engineer B's clients
No written non-compete agreement was established at the time of Engineer A's hiring or during employment
Engineer A Pending Termination Active Employment
From the moment Engineer B gave Engineer A formal notice of termination through Engineer A's actual cessation of employment
Pending Termination Notice Active Employment Continuation State
Engineer A's employment status with Engineer B's firm
Engineer A's formal departure from Engineer B's firm
Engineer B distributed the brochure while Engineer A was still employed but had been given a notice of termination by Engineer B
Engineer B was the very person who terminated Engineer A
Engineer B formally notifying Engineer A of forthcoming termination
Engineer A Pending Termination Notice Active Employment Continuation
From November 15, 1982 (termination notice date) through the actual termination date several months later
On November 15, 1982 Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work
Engineer A's employment relationship with Engineer B during the notice period
Actual termination of Engineer A by Engineer B
Engineer B's November 15, 1982 notification to Engineer A of forthcoming termination due to lack of work
Engineer A Prior Client Relationship Leveraged in Post-Departure Competition
From November 15, 1982 notification onward, persisting into post-termination period
Prior Client Relationship Leveraged in Post-Departure Competition State
Engineer A's use of professional relationships developed during employment with Engineer B to solicit those clients for a new competing firm
Engineer A's direct notification to Engineer B's clients of plans to establish a competing firm
Engineer A Three-Party Departure Interest Balancing
From November 15, 1982 through and beyond Engineer A's actual termination
The competing interests of Engineer A (professional mobility), Engineer B (client goodwill), and Engineer B's clients (choice of engineer) arising from Engineer A's departure and competitive solicitation
Resolution of competitive engagement questions between Engineer A's new firm and Engineer B
Engineer B's termination notice and Engineer A's immediate decision to solicit Engineer B's clients
Engineer A Tripartite Interest Balancing Departure Conduct
Engineer A solicited Engineer B's clients immediately upon receiving the termination notice while still employed, raising questions about the fairness and equity of the solicitation timing and method.
Tripartite Interest Balancing Departure Conduct Self-Assessment Obligation
Engineer A was obligated to evaluate his departure-related conduct — including the timing and manner of client solicitation — by explicitly balancing the client's interest in retaining the engineer of its choice, his own interest in professional autonomy and career mobility, and Engineer B's interest in maintaining business goodwill and client continuity, ensuring that the method of departure and subsequent competition was fair and equitable to all concerned parties.
From receipt of termination notice through establishment of new firm
Pre-Departure Promotional Negotiation Prohibition Boundary Applied to Engineer A Solicitation
Engineer A's client notifications during the notice period from November 1982 through actual termination
At-Will Employment Symmetry and Engineer Mobility Right
Client-Initiated Departure Moral Responsibility Shift Principle
Engineer A's solicitation of Engineer B's clients while still employed during the notice period raises the question of whether this crosses the boundary from permissible planning into prohibited promotional negotiation; the employer-initiated termination context and the absence of active contract supplanting are relevant to where the literal boundary falls.
The prohibition on pre-departure promotional negotiation applies with reduced force when departure is employer-compelled; however, active solicitation (notifying clients and requesting future work consideration) likely crosses the threshold from mere planning into actionable promotional effort, making this a borderline application of the principle.
Engineer A Pre-Departure Client-Soliciting Termination-Notified Engineer
Pre-Departure Promotional Negotiation Prohibition With Literal Boundary
Engineer A thereupon notified clients of Engineer B that Engineer A was planning to start another engineering firm and would appreciate being considered for future work. Meanwhile, Engineer A continued to work for Engineer B for several additional months after the November termination notice.
The termination-initiated context and the absence of active contract supplanting mitigate but do not fully eliminate the concern; the ethical analysis turns on whether Engineer B's clients had active contracts at the time of solicitation.
Current-Client Solicitation During Active Employment Prohibition Applied to Engineer A
Engineer A's client contact activity during the notice period
Pre-Departure Client-Soliciting Termination-Notified Engineer Solicitation Permissibility Principle
The current/former client distinction is ethically decisive: soliciting current employer clients while employed crosses the line that post-departure solicitation of former clients does not.
In the instant case Engineer A notified 'current' and not former clients of Engineer B and offered professional services to them. (2) Engineer A was still employed by Engineer B when Engineer A notified the clients and others of the offer of professional services.
In the instant case Engineer A notified 'current' and not former clients of Engineer B and offered professional services to them.
Engineer A Brochure-Misrepresented Departing Engineer
{'departure_type': 'Employer-initiated termination (lack of work)', 'misrepresentation_duration': 'During notice period and after actual termination', 'brochure_content': "Listed as key employee of Engineer B's firm"}
Engineer A's name and status as a key employee continued to appear in Engineer B's marketing brochures both during the notice period and after actual termination, misrepresenting his availability to prospective clients.
{'type': 'name_misused_by', 'target': 'Engineer B Brochure-Misrepresenting Terminating Employer Engineer'}
{'type': 'subject_of', 'target': "Engineer B's marketing brochure"}
Brochure-Misrepresented Departing Engineer
Engineer A Departed Engineer Firm Brochure Credential Misuse Correction
Engineer A's name and status as a key employee continued to appear in Engineer B's marketing brochures both during the notice period and after actual termination, potentially misrepresenting Engineer A's current affiliation to prospective clients.
Departed Engineer Firm Brochure Credential Misuse Correction Obligation
Engineer A was obligated, upon receiving the termination notice and upon actual departure, to take affirmative steps to ensure that Engineer B's marketing materials no longer listed him as a current key employee, including notifying Engineer B of the need to update materials and, if necessary, demanding correction of the continued misrepresentation of his employment status.
From receipt of termination notice (November 15, 1982) through cessation of Engineer B's brochure distribution
Engineer A Departed Engineer Firm Brochure Credential Misuse Correction BER-82
Engineer A's name and status as a key employee continued to appear in Engineer B's marketing brochures both during the notice period and after actual departure. Engineer A shared responsibility with Engineer B for correcting this misrepresentation by demanding correction of the brochure.
Engineer A, upon receiving the termination notice and upon actual departure, was obligated to take affirmative steps to ensure that Engineer B's marketing brochure no longer listed Engineer A as a current key employee, including notifying Engineer B of the need to update materials.
From receipt of termination notice through and after actual departure
Moreover, Engineer B distributed the brochure after Engineer A had left the firm.
The names of the firm's members are often quite significant to the client selecting the firm.
Engineer A Specialized-Knowledge-Exploiting Departing Employee
{'knowledge_type': "Particular and specialized knowledge of employer's client projects", 'violation_condition': 'Conditional — if specialized knowledge was in fact exploited without disclosure', 'applicable_code': 'Section III.4.a'}
The discussion raises the conditional scenario that if Engineer A had gained particular and specialized knowledge about specific client projects during employment and then sought that work without full disclosure to Engineer B, this would constitute an additional violation under Section III.4.a regarding use of proprietary information and specialized knowledge.
{'type': 'employee_of', 'target': 'Engineer B'}
{'type': 'knowledge_acquired_from', 'target': "Engineer B's client projects"}
Specialized-Knowledge-Exploiting Departing Employee Engineer
whether Engineer A violated a duty of disclosure to all interested parties by entering into promotional efforts for work as a principal in connection with work for which Engineer A had gained a particular and specialized knowledge
Assuming that in fact Engineer A had gained such knowledge and then sought such work without full disclosure to the employer, Engineer B, it appears that Engineer A would have violated Section III.4.a.
Engineer A could not ethically use proprietary information concerning clients, trade secrets, or other valuable information of the employer without full disclosure
Engineer B Free Enterprise Departure Right Non-Ethical-Proscription Recognition
Engineer B terminated Engineer A for lack of work; Engineer A's subsequent solicitation of Engineer B's clients for his new firm must be evaluated against specific Code provisions rather than a general loyalty presumption.
Free Enterprise Departure Right Non-Ethical-Proscription Recognition Obligation
Engineer B was obligated to recognize that Engineer A's decision to depart and establish a competing firm — even while still employed during the notice period — raised no general ethical proscription under the NSPE Code, and that any ethical constraints on Engineer A's departure conduct must be grounded in specific Code provisions rather than a general presumption against competitive departure by a terminated employee.
From issuance of termination notice onward
Engineer B Marketing Material Ongoing Accuracy and Currency Maintenance
Engineer B distributed a previously printed brochure listing Engineer A as a key employee without updating or correcting the materials as Engineer A's employment status changed.
Marketing Material Ongoing Accuracy and Currency Maintenance Obligation
Engineer B was obligated to actively maintain and update all public-facing marketing materials — including the firm brochure — to ensure they remained accurate and not deceptive as personnel changed, and this ongoing obligation was violated by continued distribution of the brochure listing Engineer A as a key employee after the termination notice and actual termination.
Continuous obligation; specifically violated from November 15, 1982 onward
Engineer B Printed Marketing Material Proactive Accuracy Assurance
Engineer B distributed a previously printed brochure listing Engineer A as a key employee without implementing any proactive accuracy assurance process to address the known personnel change.
Printed Marketing Material Proactive Accuracy Assurance Obligation
Engineer B was obligated to take reasonable proactive steps to ensure that the firm's printed brochures remained accurate and up-to-date, including implementing processes for timely review and updating of printed materials when personnel changes occurred, rather than continuing to distribute outdated materials listing Engineer A as a key employee after the termination notice and actual termination.
Ongoing obligation; specifically triggered from November 15, 1982 onward
Pertinent Fact Misrepresentation Intent-and-Purpose Dual-Element Test Applied to Engineer B Brochure
Engineer B's brochure distribution listing Engineer A as key employee after termination notice and after actual departure
Marketing Communication Currency and Accuracy Maintenance Obligation
Engineer B's continued distribution of a brochure listing Engineer A as a key employee — both during the notice period and after actual departure — satisfied both elements of the dual-element test: (1) Engineer A's name was a pertinent fact decisive to client selection, and (2) Engineer B acted with intent and purpose to enhance the firm's qualifications.
Both prongs must be satisfied for a Section II.5.a violation; the Board found both present — the name of a key employee is clearly pertinent to client selection, and Engineer B (who initiated the termination) was well aware of the misrepresentation.
Pertinent Fact Misrepresentation Intent-and-Purpose Dual-Element Test
Thus, the Code provision requires the Board to interpret that provision to determine whether (l) Engineer B in fact misrepresented 'pertinent facts' and (2) whether it was the intent and purpose of Engineer B to 'enhance the firm's qualifications and work.' Both prongs must be present for a violation of Section II.5.a. to exist.
Both prongs must be present for a violation of Section II.5.a. to exist.
Engineer B was the very person who terminated Engineer A.
It is clear, therefore, that the inclusion of the name of Engineer A in the firm's brochure constituted a misrepresentation of 'pertinent facts.'
Thus, the Code provision requires the Board to interpret that provision to determine whether (l) Engineer B in fact misrepresented 'pertinent facts' and (2) whether it was the intent and purpose of Engineer B to 'enhance the firm's qualifications and work.'
Questionable Competition Methods Prohibition Applied to Engineer A
Engineer A's competitive solicitation methods during employment
Engineer A's covert solicitation of Engineer B's current clients while employed constituted questionable methods of competition under Section III.7, because Engineer A knew or should have known the conduct was ethically problematic even if not certain it was a violation.
The 'knew or should have known' standard applies to competition ethics: an engineer cannot escape a Section III.7 violation by claiming subjective uncertainty when the conduct was objectively dubious.
Questionable Competition Methods Prohibition Through Faithful Agent Breach
It seems obvious that by failing to act as a faithful employee and by failing to disclose the actions to Engineer B, Engineer A engaged in questionable methods of competition.
Therefore, we are of the view that Engineer A was in violation of Section III. 7.
Engineer A Covert Current-Client Solicitation While Employed
During the period between receipt of termination notice and formal departure, while Engineer A was contacting Engineer B's current clients
Engineer A notified 'current' and not former clients of Engineer B and offered professional services to them
Engineer A's solicitation of Engineer B's current clients while still employed
Engineer A was still employed by Engineer B when Engineer A notified the clients and others of the offer of professional services
by failing to act as a faithful employee and by failing to disclose the actions to Engineer B, Engineer A engaged in questionable methods of competition
Engineer A's decision to contact Engineer B's current clients to offer professional services without informing Engineer B
Engineer A Current-Client Covert Solicitation During Active Employment Prohibition BER-82
Engineer A received a termination notice from Engineer B in November 1982 but remained employed during a notice period. During this period, Engineer A contacted Engineer B's current clients — not former clients — to notify them of his new firm and offer professional services, without informing Engineer B of these solicitation activities.
Current-Client Covert Solicitation During Active Employment Prohibition Obligation
From receipt of termination notice (November 1982) through actual departure date
Engineer A Questionable Competition Methods Covert Solicitation BER-82
Engineer A's covert solicitation of Engineer B's current clients while still employed, without disclosing this activity to Engineer B, constituted questionable methods of competition under NSPE Code Section III.7, regardless of whether Engineer A was subjectively certain the conduct was unethical.
Questionable Competition Methods Prohibition Through Covert Employer-Detriment Activity Obligation
Engineer A was obligated to refrain from competing with Engineer B through questionable methods — specifically, covertly soliciting Engineer B's current clients without disclosure while still employed — conduct that Engineer A knew or should have known was problematic and raised the possibility of an ethical violation.
Engineer A Specialized Knowledge Solicitation Risk
During and after Engineer A's employment with Engineer B, contingent on whether Engineer A possessed and used such specialized knowledge
Specialized Project Knowledge Consent Requirement Activation State
Engineer A's potential use of specialized project knowledge gained while employed by Engineer B to solicit specific clients
Full disclosure to Engineer B of the specialized knowledge being used, or cessation of solicitation based on such knowledge
Assuming that in fact Engineer A had gained such knowledge and then sought such work without full disclosure to the employer, Engineer B, it appears that Engineer A would have violated Section III.4.a. of the Code
Engineer A's solicitation of Engineer B's current clients, raising the question of whether specialized project knowledge was leveraged
Engineer B Brochure-Misrepresenting Terminating Employer
{'violation': 'Section II.5.a (misrepresentation in brochures), Section III.3.a (material misrepresentation of fact)', 'brochure_distribution': 'During notice period and after actual termination', 'interim_obligation': "Must verbally disclose Engineer A's pending termination during client negotiations", 'post_departure_obligation': "Must cease using brochure with Engineer A's name entirely after formal dismissal"}
Engineer B, as the terminating employer, distributed marketing brochures listing Engineer A as a key employee both during the notice period and after Engineer A's actual departure, constituting misrepresentation of pertinent facts with intent to enhance the firm's qualifications. The discussion also identifies Engineer B's affirmative obligation to verbally disclose Engineer A's pending termination to prospective clients during negotiations in the interim period.
{'type': 'employer_of', 'target': 'Engineer A'}
{'type': 'misrepresenting_to', 'target': 'Prospective Clients'}
{'type': 'terminating', 'target': 'Engineer A'}
Brochure-Misrepresenting Terminating Employer Engineer
Engineer B distributed the brochure while Engineer A was still employed but had been given a notice of termination
Engineer B distributed the brochure after Engineer A had left the firm
Engineer B had an ethical obligation to cease using the brochure with Engineer A's name in it entirely
That is a clear misrepresentation of a pertinent fact with the intent to enhance the firm's qualifications
Engineer B Brochure Intent-Differentiated Misrepresentation Assessment
Throughout the Board's analysis of Engineer B's conduct regarding the promotional brochure
the Code provision requires the Board to interpret that provision to determine whether (l) Engineer B in fact misrepresented 'pertinent facts' and (2) whether it was the intent and purpose of Engineer B to 'enhance the firm's qualifications and work'
Intent-Differentiated Marketing Misrepresentation Assessment State
The two-prong ethical assessment of Engineer B's brochure containing Engineer A's name
Board's conclusion that both prongs (misrepresentation of pertinent facts + intent to enhance qualifications) were satisfied, constituting a Code violation
Both prongs must be present for a violation of Section II.5.a. to exist
Engineer B acted with 'intent and purpose' in distributing the misleading brochure
the inclusion of the name of Engineer A in the firm's brochure constituted a misrepresentation of 'pertinent facts'
Engineer B's distribution of a brochure naming Engineer A as a key firm member both during the notice period and after Engineer A's formal departure
Engineer B Case-by-Case Brochure Misrepresentation Pertinence Assessment
Engineer B continued distributing the brochure listing Engineer A as a key employee without conducting a pertinence assessment of whether this constituted a misrepresentation given Engineer A's changed status.
Case-by-Case Brochure Misrepresentation Pertinence Assessment Obligation
Engineer B was obligated to conduct a case-by-case assessment of whether continued listing of Engineer A as a key employee in the firm's brochure constituted a misrepresentation of a pertinent fact, considering whether Engineer A was highlighted as a key employee, whether Engineer A's departure materially altered the firm's qualifications, and whether there was intent to enhance firm qualifications — rather than assuming continued distribution was permissible because the brochure had been previously printed.
From issuance of termination notice through cessation of brochure distribution
Engineer B Errata Sheet Low-Cost Correction Mechanism Utilization
Engineer B continued distributing previously printed brochures listing Engineer A as a key employee rather than employing available correction mechanisms after the termination notice and actual termination.
Errata Sheet Low-Cost Correction Mechanism Utilization Obligation
Engineer B was obligated to employ available low-cost correction mechanisms — including errata sheets inserted into existing brochures, cover letters accompanying distribution, or strike-outs on existing copies — rather than continuing to distribute the inaccurate brochure listing Engineer A as a key employee after the termination notice and actual termination, recognizing that the practical burden of correction was low relative to the ethical harm of continued misrepresentation.
Engineer B Expeditious Marketing Material Error Correction Upon Actual Knowledge
Engineer B had actual knowledge from November 15, 1982 that Engineer A would be departing, yet continued distributing the brochure listing Engineer A as a key employee both during the notice period and after actual termination.
Expeditious Marketing Material Error Correction Upon Actual Knowledge Obligation
Engineer B was obligated to take expeditious corrective action upon receiving actual knowledge — at the moment of issuing the termination notice — that the brochure listing Engineer A as a key employee was or would imminently become inaccurate, employing low-cost mechanisms such as errata sheets, cover letters, or reprints rather than allowing the known inaccuracy to persist uncorrected through continued brochure distribution.
From November 15, 1982 (date of termination notice) onward
Engineer B Firm Principal Post-Departure Personnel Listing Correction
Engineer B continued to use the previously printed brochure with Engineer A's name in it well after Engineer A was actually terminated.
Firm Principal Post-Departure Personnel Listing Correction Obligation
Engineer B was obligated to promptly remove Engineer A from all firm marketing materials upon Engineer A's actual termination, and to refrain from distributing any materials listing Engineer A as a current key employee after that date, regardless of whether the materials were previously printed.
From the date of Engineer A's actual termination onward
Engineer B Inadvertent Brochure Inaccuracy Non-Condoning Expeditious Correction
Engineer B continued distributing the previously printed brochure listing Engineer A as a key employee, potentially treating the pre-printed nature of the materials as a logistical excuse for continued distribution.
Inadvertent Brochure Inaccuracy Non-Condoning Expeditious Correction Obligation
Engineer B was obligated to take expeditious corrective action to eliminate any false impression created by the brochure listing Engineer A as a key employee — even if the initial distribution during the notice period was inadvertent or logistically constrained — recognizing that the absence of initial intent to deceive did not excuse continued distribution of materials that might mislead prospective clients about Engineer A's current availability.
From the point at which Engineer B had reason to believe a misunderstanding might occur (i.e., from the termination notice date)
Engineer B Key Employee Brochure Listing Prospective Client Non-Misleading
Engineer B distributed a brochure listing Engineer A as a key employee both during the notice period and after actual termination, potentially misleading prospective clients who might select the firm based on Engineer A's listed availability.
Key Employee Brochure Listing Prospective Client Reliance Non-Misleading Obligation
Engineer B was obligated to ensure that the listing of Engineer A as a 'key employee' in the firm's promotional brochure accurately reflected Engineer A's current employment status, recognizing that prospective clients reasonably rely on such key employee listings when selecting engineering firms, and that continued distribution of the brochure after Engineer A's termination notice and actual termination constituted a misrepresentation of a pertinent fact.
Engineer B Notice-Period Key-Employee Brochure Heightened Disclosure
Engineer B continued distributing a previously printed brochure listing Engineer A as a key employee during the notice period after issuing the termination notice in November 1982.
Notice-Period Key-Employee Brochure Distribution Heightened Disclosure Obligation
Engineer B was obligated, upon issuing the termination notice to Engineer A in November 1982, to take affirmative steps — including errata sheets, cover letters, or verbal disclosure — to apprise prospective clients receiving the firm's brochure that Engineer A's status as a key employee had changed and that he would be departing, given that Engineer A was specifically identified as a key employee and prospective clients might rely on his availability when selecting the firm.
From issuance of termination notice (November 15, 1982) through Engineer A's actual departure
Engineer B Pertinent Fact Dual-Element Misrepresentation Test Brochure
Engineer B continued distributing the brochure listing Engineer A as a key employee after the termination notice and after actual termination, raising the question of whether both elements of the misrepresentation test were satisfied.
Pertinent Fact Dual-Element Misrepresentation Test Compliance Obligation
Engineer B was obligated to evaluate the continued distribution of the brochure listing Engineer A as a key employee against both elements of the pertinent-fact misrepresentation test: (1) whether Engineer A's status as a key employee was pertinent to prospective client selection decisions, and (2) whether continued distribution was made with intent to enhance the firm's qualifications beyond what was accurate — and to refrain from distributing materials satisfying both elements simultaneously.
Throughout the period of brochure distribution after the termination notice
Engineer B Post-Actual-Termination Brochure Personnel Listing Prohibition
Post-Actual-Departure Brochure Personnel Listing Prohibition Obligation
Engineer B was absolutely obligated to cease distributing any promotional materials listing Engineer A as a current key employee after Engineer A was actually terminated, regardless of whether the materials were previously printed, and this obligation was violated by Engineer B's continued use of the brochure with Engineer A's name well after Engineer A's actual termination.
Engineer B Post-Departure Brochure Continued Use
From Engineer A's formal departure from Engineer B's firm through the Board's ruling
Post-Termination Brochure Continued Use State
Engineer B's continued distribution of promotional brochure naming Engineer A after Engineer A's formal departure
Engineer B ceasing use of the brochure containing Engineer A's name
That is a clear misrepresentation of a pertinent fact with the intent to enhance the firm's qualifications and as such constitutes a violation of the Code
once Engineer A had been formally dismissed, Engineer B had an ethical obligation to cease using the brochure with Engineer A's name in it entirely
Engineer B distributing the firm brochure listing Engineer A as a key member after Engineer A had formally left the firm
Engineer B Pre-Termination Brochure Distribution During Notice Period
From November 15, 1982 termination notice through Engineer A's actual termination
Engineer B's distribution of brochures listing Engineer A as a key employee during the notice period, when Engineer A was still employed but had already announced plans to compete
Engineer A's actual termination (though brochure use continued beyond this point)
during that period, Engineer B distributed a previously printed brochure
Engineer B's distribution of previously printed brochures listing Engineer A as a key employee during the transitional notice period
Engineer B Printed Marketing Material Proactive Accuracy Assurance BER-82
Engineer B, as the firm principal who issued the termination notice, had actual knowledge that the brochure listing Engineer A as a key employee would become inaccurate. The proactive accuracy obligation required Engineer B to take steps — such as errata sheets, cover letters, or reprints — to prevent the known inaccuracy from misleading prospective clients.
Engineer B was obligated to take proactive steps to ensure that the firm's printed promotional brochure remained accurate as to personnel listings, including anticipating the foreseeable inaccuracy created by Engineer A's pending departure and implementing timely review and updating processes.
Engineer B was well aware of the impending termination of Engineer A. Engineer B was the very person who terminated Engineer A.
Honesty Principle Invoked Against Engineer B Brochure Misrepresentation
Engineer B's marketing brochure distribution practices
Engineer B's distribution of brochures listing Engineer A as a key employee after termination notice and after actual departure violated the honesty obligation by creating a false impression of the firm's personnel composition to prospective clients.
Honesty in professional representations extends to marketing materials; knowingly distributing materials that misrepresent the firm's personnel constitutes a dishonesty violation regardless of the commercial motivation.
Honesty obligation is not balanced away by commercial considerations; the intent-and-purpose element of the misrepresentation provision confirms that Engineer B's knowing distribution constitutes a honesty violation.
Honesty in Professional Representations Violated by Engineer B Brochure
Proactive Marketing Material Accuracy Assurance Obligation
Engineer B's continued distribution of a brochure listing Engineer A as a key employee after Engineer A's actual termination violates the fundamental professional obligation of honesty by presenting a false picture of the firm's personnel to prospective clients.
Honesty in professional representations requires that marketing materials accurately reflect the firm's current capabilities and personnel; Engineer B's post-termination brochure use is a straightforward honesty violation.
Engineer B Brochure-Misrepresenting Terminating Employer Engineer
No competing principle justifies the dishonesty; the honesty obligation is clear and unambiguous in this context.
Loyalty Obligation Tension in Engineer A Pre-Departure Solicitation
Former-Client Solicitation Without Active-Contract Supplanting Permissibility Principle
Engineer A's solicitation of Engineer B's clients while still employed during the notice period creates tension with the loyalty obligation owed to the current employer, though this tension is substantially mitigated by the employer-initiated nature of the termination.
The loyalty principle does not disappear upon receipt of a termination notice, but its weight is significantly reduced when the employer has already signaled the end of the employment relationship; the reciprocity of the at-will employment relationship informs the scope of the remaining loyalty obligation.
Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work. Engineer A thereupon notified clients of Engineer B that Engineer A was planning to start another engineering firm and would appreciate being considered for future work. Meanwhile, Engineer A continued to work for Engineer B for several additional months after the November termination notice.
The employer-initiated termination substantially reduces the loyalty constraint on solicitation; remaining loyalty obligations are satisfied by not supplanting active contracts and not exploiting confidential information.
Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work.
At-Will Employment Symmetry and Engineer Mobility Right Contextual Boundary Applied
Boundary between permissible post-departure competition and prohibited pre-departure solicitation
Faithful Agent Trustee Duty as General Loyalty and Fair Dealing
The Board affirmed that an engineer who severs all ties with an employer and then seeks to contact the employer's clients to offer engineering services does not violate the Code — preserving the engineer's mobility right — while simultaneously holding that this right does not extend to covert solicitation of current clients during active employment.
The mobility right is real and protected, but it is bounded by the timing of departure and the current/former client distinction; the right does not license conduct that exploits the employment relationship against the employer's active interests.
We do not mean to suggest than an employee who severs all ties with the employer and then seeks to contact clients of the employer in order to offer engineering services is in violation of the Code. To the contrary, those were the facts of Case 77-11 and that case remains a proper interpretation of the Code.
Brochure Personnel Currency Disclosure During Active Negotiation Obligation Applied to Engineer B Notice Period
Engineer B's brochure distribution during Engineer A's notice period
Post-Actual-Termination Brochure Continued Use Absolute Prohibition Principle
During the period between Engineer A's termination notice and actual departure, Engineer B was obligated to inform prospective clients during active negotiations of Engineer A's pending departure, rather than allowing the brochure to create a false impression of Engineer A's continued availability.
The obligation to disclose pending departure during active negotiations is a minimum standard; the Board treated reprinting as impracticable but required verbal disclosure during negotiations as a substitute corrective measure.
Brochure Personnel Currency Disclosure During Active Negotiation Obligation
we are of the view that a requirement that Engineer B insert an addendum or an amendment in the brochure informing prospective clients that Engineer A would soon be leaving the firm is both impracticable and unnecessary.
Current-Employment Specialized Knowledge Disclosure Obligation Applied Conditionally to Engineer A
Engineer A's potential use of project-specific specialized knowledge in competitive solicitation
Competitive Employment Freedom With Confidentiality Constraint
The Board conditionally analyzed that if Engineer A had gained particular and specialized knowledge about Engineer B's clients' projects and then sought that work without full disclosure to Engineer B, a violation of Section III.4.a would result — treating the employment-period specialized knowledge disclosure obligation as even stronger than the post-departure constraint.
The specialized knowledge constraint applies with full force during active employment; the duty of full disclosure to the employer before using such knowledge competitively is non-negotiable.
Specialized Knowledge Constraint on Post-Departure Competition
Employer Disclosure Duty in Competitive Pre-Departure Solicitation Applied to Engineer A
Engineer A's undisclosed solicitation of Engineer B's clients
Disclosure to the employer is a minimum condition for any competitive activity during employment; its absence independently constitutes a violation separate from the solicitation itself.
Employer Disclosure Duty in Competitive Pre-Departure Solicitation
An essential aspect of those is the duty to disclose. Certainly it is not possible for an engineer to meet those obligations to the employer if the engineer is engaging in such promotional activity to the employer's detriment.
Former-Client Solicitation Permissibility Applied to Engineer A
Definite Steps Threshold for Engineer Supplanting Prohibition Activation
Engineer A's notification to Engineer B's clients that he was starting a new firm and seeking future work is permissible to the extent those clients had no active, executed contracts with Engineer B for specific projects, because solicitation of uncontracted clients does not constitute supplanting.
The ethical permissibility of Engineer A's solicitation hinges on whether Engineer B's clients had taken definite steps toward retaining Engineer B for specific projects; absent such steps, the solicitation is competitive but not unethical supplanting.
Notice-Period Brochure Distribution Conditional Permissibility Applied to Engineer B
Engineer B's continued distribution of the previously printed brochure listing Engineer A as a key employee during the notice period (November 1982 through actual termination) is conditionally permissible only if Engineer B provided contemporaneous corrective disclosure of Engineer A's pending departure and did not use the listing with the intent to enhance the firm's qualifications through Engineer A's credentials.
The notice period creates a practical window during which reprinting may not be feasible, but this window is conditioned on disclosure; Engineer B's failure to disclose Engineer A's pending departure while distributing the brochure converts conditional permissibility into a violation.
Notice-Period Brochure Distribution Conditional Permissibility Principle
Engineer B distributed a previously printed brochure listing Engineer A as one of Engineer B's key employees.
Departed Engineer Credential Misuse Correction Obligation Applied to Engineer A
Engineer A, upon receiving the termination notice and then upon actual departure, bore an obligation to take affirmative steps to ensure that Engineer B ceased representing Engineer A as a current key employee in brochures distributed to prospective clients, because the continued misrepresentation implicates Engineer A's professional reputation and the integrity of the credential-reliance system.
Engineer A's professional reputation is at stake when Engineer B's brochure falsely implies Engineer A's continued affiliation; Engineer A has both a self-protective interest and a professional integrity obligation to demand correction.
Departed Engineer Credential Misuse Correction Obligation
The correction obligation does not conflict with Engineer A's competitive solicitation activities; both obligations can be simultaneously discharged by demanding brochure correction while proceeding with legitimate client solicitation.
Engineer A's name and status as a key employee continued to appear in Engineer B's marketing brochures both during the notice period and after actual termination.
At-Will Employment Symmetry Invoked By Engineer A Upon Termination Notice
Engineer A's solicitation of Engineer B's clients after receiving termination notice
Because Engineer B initiated the termination rather than Engineer A voluntarily departing, the moral weight of the loyalty obligation is reduced; Engineer A's solicitation is the natural exercise of the mobility right that mirrors the employer's termination right.
Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work. Engineer A thereupon notified clients of Engineer B that Engineer A was planning to start another engineering firm and would appreciate being considered for future work.
Brochure Personnel Currency Disclosure Obligation Violated by Engineer B
Engineer B, having issued a termination notice to Engineer A in November 1982, bore an obligation to apprise prospective clients of Engineer A's changed employment status whenever distributing the brochure listing Engineer A as a key employee during active negotiations; Engineer B's failure to provide this corrective disclosure during the notice period constitutes misrepresentation of a pertinent fact.
The pertinence of Engineer A's listing to client selection decisions triggers the disclosure obligation; clients relying on the brochure to assess firm capabilities are materially misled if they are not informed that the listed key employee is departing.
Engineer A Faithful Agent Notice-Period Boundary
Engineer A continued to work for Engineer B for several months after the November 1982 termination notice while simultaneously soliciting Engineer B's clients for his new firm.
Employer-Initiated Termination Notice-Period Faithful Agent Boundary Obligation
Engineer A was obligated to maintain faithful agent conduct toward Engineer B during the notice period — continuing to perform assigned duties, refraining from using employer resources for his new firm, and conducting client solicitation honestly and without disparagement — while recognizing that the employer-initiated termination released him from the stronger loyalty constraint applicable to voluntarily departing engineers.
Engineer A Specialized Knowledge Post-Departure Competition Constraint
Engineer A solicited Engineer B's clients for future work after receiving termination notice; the case raises the conditional question of whether Engineer A had gained specialized knowledge about specific client projects during employment.
Specialized Knowledge Post-Departure Competition Constraint Obligation
Engineer A was obligated to refrain from competing for any specific projects on which he had gained particular and specialized knowledge during his employment with Engineer B, recognizing that while general professional skills are freely portable, project-specific specialized knowledge creates a constraint on post-departure competition requiring the former employer's or affected client's consent.
During and after the notice period, for any projects involving specialized knowledge gained during employment
Engineer B Pertinent Fact Dual-Element Misrepresentation Test Brochure BER-82
The Board applied the dual-element test: (1) Engineer A's name as a key employee was a 'pertinent fact' because clients may select a firm based on the presence of a named engineer; (2) Engineer B's continued distribution with knowledge of the impending and actual departure demonstrated intent and purpose to enhance firm qualifications. Both elements were satisfied, establishing a violation of Section II.5.a.
Engineer B was obligated to ensure that the firm's promotional brochure satisfied both elements of the pertinent-fact misrepresentation test under NSPE Code Section II.5.a — that it did not misrepresent pertinent facts (element 1) with intent and purpose to enhance firm qualifications (element 2) — and failed this obligation by listing Engineer A as a key employee after termination notice and after actual departure.
During brochure distribution both during notice period and after actual departure
Engineer B Post-Actual-Departure Brochure Cessation Absolute BER-82
Engineer B continued distributing a promotional brochure listing Engineer A as a key employee after Engineer A had formally departed the firm. This constituted a clear misrepresentation of a pertinent fact with intent to enhance the firm's qualifications, violating NSPE Code Section II.5.a.
Post-Actual-Departure Brochure Cessation Absolute Obligation
From Engineer A's actual departure date onward
Loyalty Principle Invoked Against Engineer A Pre-Departure Conduct
Engineer A's employment relationship with Engineer B during notice period
Loyalty during employment is not suspended by receipt of a termination notice; it persists until actual departure and encompasses both the duty to refrain from harmful competitive conduct and the duty to disclose.
That requires the engineer to recognize both a duty of loyalty and good faith. An essential aspect of those is the duty to disclose.
Post-Actual-Termination Brochure Continued Use Absolute Prohibition Applied to Engineer B
Engineer B's brochure distribution after Engineer A's actual departure
Once Engineer A had formally departed, Engineer B's continued distribution of brochures listing Engineer A as a key employee constituted an unambiguous misrepresentation of a pertinent fact with intent to enhance qualifications, with no permissibility exception for cost or inconvenience.
Post-departure continued use of brochures listing a departed key employee is per se a violation; no balancing against cost or practicability is available once the employment has actually ended.
Engineer A Post-Departure Former-Client Solicitation Permissibility Boundary BER-82
The Board reaffirmed that an engineer who severs all ties with an employer and then contacts the employer's clients to offer engineering services does not violate the Code. This permissibility boundary was distinguished from the instant case because Engineer A solicited current (not former) clients while still employed — the two factual distinctions that made BER Case 77-11 inapplicable to Engineer A's pre-departure conduct.
Post-Departure Former-Client Solicitation Permissibility Boundary Recognition Obligation
Engineer A's post-departure solicitation of Engineer B's former clients — after fully severing all employment ties — was recognized as ethically permissible under BER Case 77-11, provided no active contracts were supplanted and no specialized knowledge was exploited without disclosure.
After actual departure from Engineer B's firm
Engineer A Pre-Departure Competitive Solicitation Employer Disclosure BER-82
Engineer A engaged in competitive solicitation of Engineer B's current clients without informing Engineer B of this activity, constituting a failure of the disclosure component of the faithful agent and trustee duty under NSPE Code Section I.4.
Pre-Departure Competitive Solicitation Employer Disclosure Obligation
Engineer A owes duties of loyalty, good faith, and disclosure to the employer for which the breach constitutes a violation of the Code.
Engineer A Specialized Knowledge Employer Disclosure Before Competitive Use BER-82
The Board conditionally analyzed that if Engineer A had gained particular and specialized knowledge about specific client projects during employment with Engineer B, and then sought work from those clients using that knowledge without full disclosure to Engineer B, Engineer A would have violated NSPE Code Section III.4.a. The facts did not confirm whether such specialized knowledge was actually exploited.
Specialized Knowledge Employer Disclosure Before Competitive Use Obligation
If Engineer A had gained particular and specialized knowledge about Engineer B's clients' projects during employment, Engineer A was obligated to make full disclosure to Engineer B before using that specialized knowledge in competitive solicitation of those clients.
Conditional — applicable if specialized knowledge was gained and used competitively during or after employment
The facts do not indicate whether Engineer A was attempting to secure work through particular and specialized knowledge gained.
Engineer B Post-Termination Brochure Continued Use
From Engineer A's actual termination date through the period Engineer B continued distributing the brochure
Engineer B's continued distribution of promotional brochures listing Engineer A as a key employee after Engineer A's actual termination
Not explicitly resolved in the case text
Engineer A's actual termination combined with Engineer B's failure to update or withdraw brochures listing Engineer A as a key employee
Faithful Agent Trustee Duty Invoked Against Engineer A Current Client Solicitation
Engineer A's solicitation of Engineer B's current clients during active employment
Engineer A, while still employed by Engineer B and having received a termination notice, solicited Engineer B's current clients without informing Engineer B, thereby breaching the faithful agent and trustee duty of loyalty, good faith, and disclosure.
The faithful agent duty requires disclosure of competitive activities directed at the employer's current clients; covert solicitation while employed violates the duty regardless of the termination notice received.
Engineer A Faithful Agent Duty During Notice Period BER-82
Engineer A received a termination notice from Engineer B but continued working during the notice period. During this time, Engineer A solicited Engineer B's current clients without disclosure, violating the faithful agent and trustee duty under NSPE Code Section I.4.
Engineer A was obligated to maintain faithful agent conduct toward Engineer B during the notice period, including refraining from covertly diverting Engineer B's current client relationships to his new firm and from using his employment position to advance competitive interests without disclosure.
From receipt of termination notice through actual departure
{'employment_status': 'Termination-notified staff engineer', 'action_taken': "Solicited employer's clients for future work with new competing firm during notice period", 'timing': 'Solicitation occurred during active employment, not after departure'}
Received termination notice from Engineer B on November 15, 1982, then immediately solicited Engineer B's clients for his new firm while continuing to work for Engineer B for several additional months during the notice period.
{'type': 'employee_of', 'target': 'Engineer B Brochure-Misrepresenting Terminating Employer Engineer'}
{'type': 'solicited', 'target': "Engineer B's Clients"}
{'type': 'subject_of_brochure_misrepresentation', 'target': 'Engineer B Brochure-Misrepresenting Terminating Employer Engineer'}
Pre-Departure Client-Soliciting Termination-Notified Engineer
Pertinent Fact Misrepresentation Dual-Element Test Applied to Engineer B Brochure
Engineer B's continued distribution of the brochure listing Engineer A as a key employee must be assessed against both elements: (1) whether Engineer A's listing constitutes a 'pertinent fact' to prospective clients' selection decisions, and (2) whether Engineer B acted with the intent and purpose of enhancing the firm's qualifications through the listing; the post-actual-termination continued use is more likely to satisfy both elements than the notice-period distribution.
Engineer A's designation as a 'key employee' in the brochure strongly suggests pertinence to client selection; the continued use after actual termination, when Engineer B had full knowledge of the inaccuracy, raises a strong inference of intent to enhance qualifications through the misrepresentation.
Proactive Marketing Material Accuracy Obligation Applied to Engineer B
Expeditious Correction Obligation Upon Actual Knowledge of Marketing Material Inaccuracy
Engineer B bore an affirmative, ongoing obligation to take proactive steps — errata sheets, cover letters, reprints — to ensure that brochures listing Engineer A remained accurate, and the failure to take any such measures during both the notice period and after actual termination constitutes a breach of this proactive stewardship obligation.
The proactive obligation extends beyond reactive correction triggered by client complaints; Engineer B's awareness of the impending and then actual departure created an immediate proactive duty to address the brochure's accuracy.
The proactive obligation and the reactive correction obligation are complementary and both violated by Engineer B's inaction; together they establish a comprehensive accuracy stewardship standard.
Expeditious Correction Obligation Violated by Engineer B Post-Actual-Termination
Once Engineer A was actually terminated, Engineer B had actual knowledge that the brochure listing Engineer A as a key employee was inaccurate; Engineer B's continued use of the brochure 'well after' actual termination without expeditious corrective action independently constitutes an ethical violation regardless of whether the original notice-period distribution was permissible.
The post-actual-termination continued use is the most clear-cut ethical violation in this case: there is no conditional permissibility argument available after actual departure, and Engineer B's inaction after actual knowledge of the inaccuracy is an independent ethical failure.
Specialized Knowledge Constraint Conditional Application to Engineer A
If Engineer A gained particular and specialized knowledge about specific client projects during employment with Engineer B, Engineer A's solicitation of those specific clients for substantially similar work would require the consent of Engineer B or the affected clients before proceeding.
This principle applies conditionally: the case raises but does not resolve whether Engineer A possessed such specialized project-specific knowledge; if so, the solicitation obligation is constrained accordingly.
Engineer B Notice-Period Active-Negotiation Key-Employee Departure Disclosure BER-82
Engineer B issued a termination notice to Engineer A in November 1982 but continued distributing a brochure listing Engineer A as a key employee. During the interim period before Engineer A's actual departure, Engineer B was obligated to disclose Engineer A's pending departure during active client negotiations, though not required to insert formal addenda in every brochure copy.
Notice-Period Active-Negotiation Key-Employee Departure Disclosure Obligation
Engineer B was obligated, during active negotiations with prospective clients occurring between the date of Engineer A's termination notice and Engineer A's actual departure, to inform those prospective clients of Engineer A's pending termination.
From issuance of termination notice (November 1982) through Engineer A's actual departure date
{'role_in_firm': 'Firm principal/employer', 'action_taken': 'Continued distributing outdated brochure listing terminated engineer as key employee', 'duration_of_misrepresentation': 'During notice period and after actual termination'}
Engineer B issued a termination notice to Engineer A in November 1982 but continued distributing a brochure listing Engineer A as a key employee during the notice period and after actual termination, misrepresenting the firm's personnel to prospective clients.
{'type': 'distributed_brochure_to', 'target': "Engineer B's Clients Prospective Engineering Services Client Relying on Firm Brochure"}
{'type': 'employer_of', 'target': 'Engineer A Pre-Departure Client-Soliciting Termination-Notified Engineer'}
Engineer A Employer-Initiated Termination Pre-Departure Client Solicitation Permissibility
Engineer B terminated Engineer A for lack of work; Engineer A immediately notified Engineer B's clients of his new firm and sought future work while continuing to work for Engineer B during the notice period.
Employer-Initiated Termination Notice Pre-Departure Client Solicitation Permissibility Obligation
Engineer A, having received an employer-initiated termination notice from Engineer B on November 15, 1982, was obligated to recognize that soliciting Engineer B's clients for future work with his new firm was ethically permissible under the at-will employment symmetry principle, provided no active contracts were supplanted and no specialized confidential knowledge was exploited, and to conduct such solicitation honestly and without disparagement of Engineer B.
From receipt of termination notice (November 15, 1982) through actual departure