Absolute Loyalty Prohibition Boundary Acknowledged in Engineer A Analysis
Engineer A's argument that termination of the plaintiff-side engagement freed him to accept the defense-side engagement
Confidentiality Duration Indeterminacy Principle
Proceeding-Duration Loyalty Persistence Principle
The Board acknowledged the argument that Engineer A's loyalties were not divided because he had terminated his relationship with plaintiff's attorney — recognizing the principle that engineers are not bound by perpetual absolute loyalty to former clients — but distinguished this case because the ethical obligation persisted for the duration of the proceeding
The Board acknowledged the Absolute Loyalty Prohibition boundary (engineers are not perpetually bound to former clients) but held it inapplicable here because the proceeding-duration loyalty obligation had not yet expired — the principle defines the outer limit but not the minimum floor
Engineer A Forensic Expert Switching Sides
Absolute Loyalty Prohibition to Former Clients
It may be argued, as was stated in the earlier BER Case 74-2, that Engineer A's loyalties under these facts were not divided because he had terminated his relationship with plaintiff's attorney.
The absolute loyalty prohibition boundary was acknowledged but distinguished — it does not apply to extinguish obligations that persist for the duration of the specific proceeding in which confidential access was granted
we must recognize that while Engineer A may not currently have a professional relationship with a former client, he still has an ethical obligation to that client to protect certain confidential information and facts, as well as a certain duty of trust and loyalty.
Absolute Loyalty Prohibition Inapplicable To Same-Matter Defense Engagement
Personal injury litigation forensic engagement
Former Client Adversarial Participation Prohibition
Switching Sides Prohibition in Adversarial Proceedings
Engineer A's acceptance of the defense-side engagement cannot be justified by the principle that engineers are not perpetually bound to former clients, because that principle permits adverse engagements only in unrelated matters — the defense engagement is in the same matter as the plaintiff-side engagement
The Absolute Loyalty Prohibition's exception for unrelated matters does not apply here — the proposed defense engagement is directly related to (indeed, the same as) the prior plaintiff-side engagement; the principle therefore does not authorize the defense engagement
Engineer A's services are terminated and his fee is paid in full.
The same-matter character of the proposed defense engagement means the Absolute Loyalty Prohibition's permissive exception is unavailable — the Switching Sides Prohibition and Former Client Adversarial Participation Prohibition control
Thereafter, Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case and seeks to retain Engineer A
Accept Plaintiff Forensic Retention (Action 1) → Plaintiff Engagement Established (Event 1)
NSPE Board of Ethical Review (through accumulated BER decisions)
Adversarial Proceeding Conflict of Interest Standard
All of the aforementioned cases represent longheld BER views relating to the question of conflicts of interest and the duty of engineers who gain, or are perceived to have gained, access to knowledge that may be advantageous to one client and disadvantageous to another.
Governs Engineer A's ethical obligations when switching from plaintiff's expert to defendant's expert within the same legal proceeding, including the prohibition on representing adverse interests without former client consent and the duty to protect confidential information
N/A — derived from NSPE Code and BER precedents
NSPE Board of Ethical Review / professional consensus
Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case and seeks to retain Engineer A to provide an independent and separate engineering and safety analysis report
Engineer A and Attorney X when evaluating the propriety of the new engagement
Governs Engineer A's duty to manage potential conflicts arising from prior engagement by opposing counsel in the same litigation, including limits on loyalty to former client Attorney Z and protection of confidential information gained during that engagement
Adversarial Retention Motivation Awareness Obligation Violated By Engineer A Accepting Defense Retention
Attorney X learned of the specific circumstances of Engineer A's termination by Attorney Z — including that Engineer A had concluded the plaintiff was at fault — and then sought to retain Engineer A, making the motivation for retention transparent.
Adversarial Retention Motivation Awareness Obligation
Engineer A was obligated to recognize that Attorney X's motivation for seeking his retention was specifically tied to his prior access to plaintiff-side confidential information and his perceived ability to provide a defense-favorable report, and to decline the engagement on that basis.
Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case and seeks to retain Engineer A to provide an independent and separate engineering and safety analysis report.
Upon being approached by Attorney X after termination by Attorney Z
Engineer A agrees to provide the report.
Attorney X Defense Attorney Adverse Retention Motivation Awareness
Adverse Retention Motivation Recognition and Ethical Response Capability
Attorney X demonstrated awareness of the exploitation-motivated nature of his retention approach — he specifically sought Engineer A because of Engineer A's prior plaintiff-side access and adverse conclusion — but proceeded with the retention without ensuring Engineer A had obtained the necessary consent from the original client.
Attorney X, as the retaining party, had an awareness of the prior engagement circumstances that should have prompted him to ensure the ethical prerequisites for the retention were satisfied.
Attorney X's explicit knowledge of 'the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case' before seeking retention demonstrates awareness of the prior engagement and its implications.
Attorney X Defense Attorney Retaining Forensic Expert
{'party_represented': 'Defendant', 'proceeding': 'Same legal proceeding as prior engagement', 'motivation': 'Expected favorable report from Engineer A based on termination circumstances'}
Attorney X is the defense-side attorney who retained Engineer A knowing (or having reason to know) that Engineer A had previously been engaged by the opposing plaintiff's attorney in the same proceeding. The Board found that the real reason for retaining Engineer A was the expectation of a favorable report, making this engagement ethically impermissible.
{'type': 'adverse_party', 'target': 'Attorney Z Plaintiff-Side Forensic Retaining Attorney'}
{'type': 'retained_engineer', 'target': 'Engineer A Forensic Expert Switching Sides'}
Defense Attorney Client Retaining Forensic Expert
the real reason for the defendant's attorney's hiring Engineering A was that he believed Engineer A would provide a report that would be favorable
His transgressions were a result of his subsequent involvement with Attorney X
{'party_represented': 'Defendant', 'case_type': 'Personal injury', 'engagement_sought': 'Independent forensic engineering and safety analysis report'}
Representing the defendant in the same personal injury case; learned of Engineer A's prior termination by plaintiff's attorney; sought to retain Engineer A to provide an independent forensic engineering and safety analysis report for the defense.
{'type': 'adverse_party_attorney', 'target': 'Attorney Z Plaintiff-Side Retaining Attorney'}
{'type': 'seeks_to_retain', 'target': 'Engineer A Forensic Expert Switching Sides'}
Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case
seeks to retain Engineer A to provide an independent and separate engineering and safety analysis report
Attorney X learns of Engineer A's termination circumstances before Attorney X seeks to retain Engineer A
Attorney X seeks to retain Engineer A before Engineer A agrees to provide report for Attorney X
Attorney Z Plaintiff-Side Retaining Attorney
{'party_represented': 'Plaintiff', 'case_type': 'Personal injury', 'engagement_outcome': 'Terminated Engineer A upon unfavorable analysis'}
Retained Engineer A to provide forensic engineering and safety analysis in support of a plaintiff in a personal injury case; terminated Engineer A's services (with full fee) when Engineer A could not produce a report favorable to the plaintiff.
{'type': 'retained_expert', 'target': 'Engineer A Forensic Expert Switching Sides'}
Plaintiff-Side Litigation Retaining Attorney
He is hired as a consultant by Attorney Z to provide an engineering and safety analysis report and courtroom testimony in support of a plaintiff in a personal injury case
Engineer A's services are terminated and his fee is paid in full
Attorney Z Plaintiff-Side Retaining Attorney Client-Transmitted Confidentiality Trigger
Attorney Z and the plaintiff provided Engineer A with confidential documents, access to the plaintiff, and strategic case information in a cooperative and mutually beneficial manner during the forensic engagement. This transmission created a confidentiality obligation that persisted after termination.
Former Client Confidentiality Perpetuation Obligation
Engineer A was obligated to protect the confidential information, documents, and case materials transmitted to him by Attorney Z and the plaintiff during the forensic engagement, recognizing that the voluntary and cooperative transmission of this information created a heightened confidentiality obligation that survived the termination of the engagement.
Engineer A throughout his first analysis had access to information, documents, etc., that were made available to him by the plaintiff and plaintiff's attorney in a cooperative and mutually beneficial manner.
From the time of transmission of confidential information through at least the conclusion of the proceeding
In BER Case 82-2 ... the Board ruled that this action was not in accord with the Code of Ethics. In that case this Board noted Section II.1.c.
Attorney Z Plaintiff-Side Retaining Attorney Client-Transmitted Confidentiality Trigger Instance
Client-Transmitted Confidential Information Section III.4 Engagement Boundary Identification Capability
Attorney Z's transmission of confidential information, documents, and case materials to Engineer A during the forensic engagement triggered Engineer A's Section III.4 confidentiality obligations, establishing the boundary within which Engineer A was required to operate even after termination of the engagement
Attorney Z retained Engineer A and transmitted confidential case materials to him, triggering the Section III.4 confidentiality obligation that persisted after termination and prohibited Engineer A from accepting defense-side retention in the same matter
Provision of confidential information, documents, and cooperative access to Engineer A during the forensic engagement, which the BER identified as the triggering condition for Engineer A's ongoing confidentiality and loyalty obligations
Citing the provisions of Section III.4.b., we found that there was nothing in the record to indicate that the engineer was given the consent of his former client
BER Case 74-2: Part-Time Consultant Arrangement and Undivided Loyalty
this Board distinguished that case from earlier BER Case 74-2 in which the Board held that a part-time consultant arrangement to municipalities by engineers in private practice did not preclude those same engineers from providing normal engineering service
the key distinction between BER Case 74-2 and BER Case 76-3 was that in BER Case 74-2 the engineer's loyalties were not divided
Precedent holding that part-time consultant arrangements with municipalities do not preclude normal engineering services to those same municipalities, provided loyalties are not divided; used to distinguish the present case where loyalties are clearly divided
BER Case 76-3: Engineer as Expert Witness While Serving as Paid Consultant to Opposing Party
In BER Case 76-3, a decision involving an engineer appearing as an expert witness for a private development company before a county board while serving as a paid consultant to the county
In some instances, it has been suggested by this Board that under certain circumstances, it may be appropriate for an engineer to first resign a particular position... (See BER Case 76-3.)
Foundational precedent establishing that an engineer serving as a paid consultant to a county while simultaneously acting as expert witness for a private development company before that county creates an unavoidable conflict of interest; also establishes that resignation from one role may be required before accepting a conflicting engagement
BER Case 82-2: Unauthorized Release of Home Inspection Report to Opposing Party
in BER Case 82-2, a decision involving an engineer who prepared a home inspection report for a client, a potential home purchaser, and thereafter released the contents of the report to the real estate firm representing the seller of the home without the consent of the client, the Board ruled that this action was not in accord with the Code of Ethics
Precedent establishing that releasing client-confidential engineering report contents to a third party without client consent violates the Code of Ethics; applied to reinforce Engineer A's duty to protect information obtained from plaintiff's attorney
BER Case 82-6: Engineer Retained by Government Accepting Engagement from Adverse Contractor
in BER Case 82-6, this Board ruled that where an engineer is retained by the U.S. government to study the causes of a dam failure, it would be unethical for the engineer to agree to be retained by the contractor involved in the construction of the dam
Precedent establishing that an engineer retained by the U.S. government to study a dam failure cannot ethically agree to represent the contractor (adverse party) in a claim against the government without former client consent; directly analogous to Engineer A switching from plaintiff to defendant representation
NSPE Board of Ethical Review Case Precedents on Forensic Engineer Sequential Party Representation
Ethics reviewers and Engineer A in analogical reasoning about the propriety of the switch
Prior BER decisions addressing whether a forensic engineer who was retained and then released by one party in litigation may subsequently be retained by the opposing party in the same case provide analogical reasoning for evaluating Engineer A's situation
BER Case 76-3 Paid Advocacy Conflict — Engineer A County Consultant
During Engineer A's simultaneous service as county consultant and expert witness for the development company before the county board
he was in fact a paid advocate of a private interest in open conflict with the engineering opinions of the county engineers
Paid Advocacy Displacing Expert Witness Objectivity State
Engineer A in BER Case 76-3 acting as paid advocate for private development company while serving as paid consultant to the county — the precedent case establishing the advocacy-objectivity conflict
Board determination that the arrangement was unacceptable
Engineer A's role as an expert witness in the ordinary sense of that kind of professional arrangement would be unacceptable
When Engineer A was approached, while still on retainer to the county, by the development company, it should have been quite clear to him that a conflict of interest was inevitable
Development company approaching Engineer A while he was still on retainer to the county
BER Case 82-6 Former Client Consent Absent for Cross-Side Representation
From conclusion of government engagement through contractor's approach
there was nothing in the record to indicate that the engineer was given the consent of his former client, the U.S. government, to represent the interests of the contractor in its claim against the government for additional compensation
Continuing Post-Termination Loyalty Obligation State
Engineer in BER Case 82-6 retained by U.S. government to study dam failure, subsequently approached by contractor (opposing party) without former client's consent — precedent establishing post-engagement loyalty obligations
Board determination that the cross-side engagement was unethical absent prior client consent
Contractor filing claim against U.S. government and approaching engineer who had studied the dam failure for the government
CausalLink_Accept Defendant Attorney Rete
CausalLink_Accept Plaintiff Forensic Rete
CausalLink_Decline Favorable Plaintiff Re
CausalLink_Fail to Recognize Irresolvable
CausalLink_Omit Disclosure to Former Clie
Client-Transmitted Confidentiality Obligation Arising From Plaintiff Attorney Engagement
Confidential case information and forensic analysis
Attorney Z transmitted case documents, access to the plaintiff, and strategic case information to Engineer A in the course of the forensic engagement — creating a strong confidentiality obligation that survived the termination of the engagement and bars the subsequent defendant-side engagement
The information transmitted by Attorney Z to Engineer A was client-transmitted in the course of a professional engagement, triggering the stronger confidentiality obligation — Engineer A cannot use this information, even implicitly through his analytical framework, in the subsequent defense engagement
Client-Transmitted Confidentiality Stronger Obligation Principle
He is hired as a consultant by Attorney Z to provide an engineering and safety analysis report and courtroom testimony in support of a plaintiff in a personal injury case.
The client-transmitted confidentiality obligation survives termination of the engagement and full payment of fees — the fact that Engineer A was paid does not extinguish the confidentiality obligation
Engineer A is a forensic engineer. He is hired as a consultant by Attorney Z to provide an engineering and safety analysis report and courtroom testimony in support of a plaintiff in a personal injury case.
It was unethical for Engineer A to agree to provide a separate engineering and safety analysis report.
Beyond the Board's finding that Engineer A's agreement to provide a separate defense-side report was unethical, the structural nature of the conflict reveals that no procedural remedy — including Engineer A's pledge to produce an independent report, his formal termination by Attorney Z, or his full payment of fees — could dissolve the ethical bar created by his prior confidential plaintiff-side engagement. The conflict is not merely procedural or remediable by disclosure; it is substantive and structural. Engineer A obtained confidential case strategy, analysis, and factual framing from the plaintiff's attorney during the initial engagement. That information cannot be mentally segregated from any subsequent analysis he might conduct, regardless of his stated intent. The framing of the defense report as 'separate' and 'independent' does not alter the underlying reality that Engineer A's analytical starting point, his knowledge of the plaintiff's vulnerabilities, and his awareness of the case's evidentiary landscape were all shaped by confidential access obtained in a fiduciary-adjacent capacity. The Board's conclusion therefore rests not merely on a rule against switching sides, but on the deeper recognition that the integrity of the adversarial proceeding itself is compromised when a forensic expert carries insider knowledge across party lines in an active matter.
The Board's conclusion is further deepened by examining the motivational structure of Attorney X's retention of Engineer A. Attorney X did not seek Engineer A because of his general forensic expertise or reputation in the field; he sought Engineer A precisely because he had learned of the circumstances of Engineer A's termination — specifically, that Engineer A's analysis pointed to plaintiff fault. This means Attorney X's retention was motivated by the desire to exploit Engineer A's prior confidential access and adverse findings, not merely to obtain an objective expert. Engineer A bore an independent ethical obligation to recognize this motivated retention as itself ethically problematic and to decline the engagement on that basis alone, separate from and in addition to the switching-sides prohibition. By accepting the retention without apparent scrutiny of Attorney X's motivations, Engineer A failed to exercise the pre-acceptance conflict screening that the NSPE Code and relevant BER precedents require. This failure compounds the primary violation: not only did Engineer A switch sides in an active proceeding, but he did so in a context where the very reason for his retention was his insider status — making the conflict not incidental but central to the engagement's purpose.
A nuance the Board did not explicitly address is the question of whether Engineer A had a pre-termination obligation to proactively disclose to Attorney Z that his findings were adverse to the plaintiff and to discuss the ethical implications of that situation before allowing the engagement to be passively terminated. The NSPE Code's requirements of honesty, objectivity, and avoidance of deception suggest that Engineer A's silence about the nature of his findings — simply allowing termination to occur without a full discussion of the ethical landscape — may itself constitute a partial ethical failure independent of the subsequent defense retention. Had Engineer A engaged in that pre-termination discussion, two consequences might have followed: first, Attorney Z and the plaintiff would have had the opportunity to provide or withhold consent to any future adverse participation, satisfying the consent-prerequisite mechanism embedded in the Former Client Adversarial Participation Prohibition; and second, Engineer A's own ethical obligations going forward would have been clarified and potentially altered by that disclosure. The absence of this pre-termination discussion left the plaintiff without the ability to exercise the consent mechanism that the Code implicitly preserves, and it left Engineer A without the moral clarity that such a discussion would have provided. This omission, while not the primary violation identified by the Board, reinforces the conclusion that Engineer A's conduct across the entire sequence of events — from initial termination through defense retention — reflected a systemic failure to engage with his ethical obligations as a forensic expert in an adversarial proceeding.
Regarding Q101: Engineer A had an affirmative obligation to proactively disclose to Attorney Z, before termination, that his findings pointed to plaintiff fault and to discuss the ethical implications of that situation. The NSPE Code's honesty and integrity provisions, combined with the forensic expert's non-advocate role, required Engineer A to communicate adverse findings transparently rather than simply allowing the engagement to dissolve. This pre-termination disclosure obligation was not merely procedural; it would have given Attorney Z the opportunity to understand the full scope of Engineer A's analysis, potentially invoke confidentiality protections more explicitly, and make informed decisions about how to handle the termination. By failing to engage in this discussion, Engineer A left the circumstances of his termination in a form that could be — and was — exploited by opposing counsel. The Board's conclusion that Engineer A violated switching-sides obligations is deepened by recognizing that the pre-termination disclosure failure was a contributing antecedent ethical lapse, not merely a background fact.
Regarding Q102: Attorney X's deliberate targeting of Engineer A precisely because of his prior plaintiff-side engagement and the circumstances of his termination constitutes an ethically problematic exploitation of a structural conflict, and Engineer A bears independent responsibility for recognizing and refusing that motivated retention. The fact that Attorney X sought out Engineer A not for his general forensic expertise but specifically because he had reviewed confidential plaintiff materials and reached adverse conclusions transforms the retention from a routine expert engagement into a calculated attempt to weaponize the plaintiff's own confidential analytical process. Engineer A's capability to recognize adverse retention motivation was engaged the moment Attorney X disclosed the basis for his interest, and Engineer A's failure to exercise that capability — his Adverse Retention Motivation Recognition Deficit — constitutes a distinct ethical failure layered on top of the switching-sides violation. A forensic engineer of integrity must recognize when he is being retained not for his independent expertise but as a conduit for the opposing party's confidential information, and must decline such retention regardless of his stated intent to produce an objective report.
Regarding Q103: The confidential information Engineer A obtained during the plaintiff-side engagement is not truly segregable from any independent analysis he might conduct for the defense, and this mental segregation impossibility alone constitutes a sufficient independent bar to the defense engagement regardless of Engineer A's stated intent to produce an independent report. During his plaintiff-side engagement, Engineer A necessarily absorbed not only raw technical data but also the plaintiff's litigation strategy, the framing of the case, the specific vulnerabilities Attorney Z was concerned about, and the analytical pathways that led to adverse findings. These elements cannot be compartmentalized through an act of professional will. Any defense-side analysis Engineer A produces will inevitably be shaped — consciously or unconsciously — by his prior exposure to the plaintiff's confidential case architecture. The Confidential Information Mental Segregation Impossibility Recognition capability, which Engineer A failed to deploy, reflects a structural reality: the mind cannot un-know what it has learned in a confidential professional context, and the pledge to produce an independent report does not alter the cognitive contamination that has already occurred. This conclusion reinforces the Board's finding that the independent report framing cannot cure the underlying conflict.
Regarding Q104: The switching-sides prohibition does not extend indefinitely to all future matters in which Engineer A previously held a confidential plaintiff-side engagement, but it does persist for the duration of the same proceeding and likely for any matter in which the confidential information obtained remains materially relevant. Had the personal injury case been fully concluded and closed before Attorney X approached Engineer A, the ethical calculus would shift significantly, though it would not automatically become permissible. The Unrelated Matter Permissibility Boundary constraint establishes that Engineer A's prohibition is keyed to the same-matter identity of the proceeding. However, even in a concluded matter, the post-termination confidentiality obligation under Code Section II.1.c. would continue to bar Engineer A from deploying plaintiff confidential information in any subsequent context. The distinction is that in a concluded matter, there is no ongoing adversarial proceeding to contaminate, no active plaintiff position to undermine, and no structural conflict of divided loyalty — but the confidentiality duty itself survives. Thus, the prohibition has two analytically distinct components: the switching-sides bar, which is proceeding-duration-limited, and the confidentiality perpetuation obligation, which is indefinite.
Regarding Q201: The Forensic Expert Non-Advocate Objectivity principle and the Switching Sides Prohibition do not genuinely conflict — they operate on different analytical planes — but their interaction creates a paradox that must be explicitly resolved. Engineer A's demonstrated objectivity in refusing to produce a favorable but inaccurate plaintiff report is precisely the quality that makes him attractive to the defense, yet that same objectivity cannot cure the structural conflict created by accepting the defense engagement. The resolution of this apparent tension lies in recognizing that objectivity is a necessary but not sufficient condition for ethical forensic engagement. Objectivity governs the quality and integrity of the work product; the switching-sides prohibition governs the structural permissibility of the engagement itself. An engineer can be perfectly objective and still be ethically barred from an engagement because of the relational and confidentiality obligations that pre-exist the question of report quality. Engineer A's objectivity is not irrelevant — it is what makes him a credible forensic expert — but it cannot serve as a waiver of structural ethical constraints that exist independently of report quality.
Regarding Q202 and Q204: The apparent conflict between the Confidentiality Duration Indeterminacy principle and the Absolute Loyalty Prohibition Boundary acknowledgment is resolved by recognizing that these principles operate at different levels of obligation intensity. Engineer A is not bound by absolute loyalty to the plaintiff — he correctly refused to produce a false favorable report — but he is bound by a perpetual confidentiality obligation and a proceeding-duration structural conflict prohibition. The Absolute Loyalty Prohibition Boundary acknowledges that Engineer A need not be the plaintiff's champion, but it does not license him to become the plaintiff's adversary in the same proceeding using knowledge gained in confidence. Similarly, the Former Client Adversarial Participation Prohibition's consent-prerequisite mechanism, as raised in Q204, does not render the prohibition merely consent-dependent in a way that undermines its force. Rather, the consent mechanism acknowledges that the prohibition exists to protect the former client's interests, and that the former client — as the party whose interests are at stake — has the authority to waive that protection. The absence of plaintiff consent in this case is therefore not a procedural technicality but a substantive indicator that the structural conflict remains live and unresolved.
Regarding Q301 and Q304: From a deontological perspective, Engineer A violated two analytically distinct categorical duties. First, he violated a duty of structural loyalty — not absolute advocacy loyalty, but the duty not to become an instrument of adversarial action against a former client in the same matter in which confidential trust was extended. This duty is categorical in the sense that it does not yield to consequentialist calculations about the quality or independence of the resulting report. Second, and independently, Engineer A violated a perpetual duty of confidentiality that attaches to all information transmitted by the plaintiff through Attorney Z during the engagement. This duty persists beyond termination as a matter of categorical obligation under Code Section II.1.c., and any post-termination adverse participation in the same matter constitutes a per se breach of that duty regardless of Engineer A's intent to keep the report independent. The deontological analysis thus yields two independent grounds for finding Engineer A's conduct unethical, each sufficient on its own, and their conjunction makes the violation particularly clear.
Regarding Q302: From a consequentialist perspective, the harms generated by Engineer A's acceptance of the defense retention substantially outweigh any benefit derived from his ostensibly independent and objective report. The harms include: (1) structural contamination of the adversarial proceeding's integrity, because the defense gains access to an expert whose analytical conclusions were shaped in part by confidential plaintiff information; (2) direct harm to the plaintiff's litigation position, because the circumstances of Engineer A's termination — now known to opposing counsel — effectively signal to the defense the weaknesses in the plaintiff's case; (3) systemic harm to the institution of forensic engineering, because permitting switching-sides conduct incentivizes retaining attorneys to terminate unhelpful experts strategically in order to make them available to the opposition; and (4) erosion of client trust in forensic expert engagements generally, as clients cannot safely share confidential information with experts if termination of the engagement removes all structural protections. The benefit — an additional independent technical analysis — is marginal, because the defense could retain any number of other qualified forensic engineers without these structural harms. The consequentialist calculus therefore strongly supports the Board's conclusion.
Regarding Q303: From a virtue ethics perspective, Engineer A failed to demonstrate the professional integrity and honesty expected of a forensic engineer when he accepted the defense retention. A forensic engineer of genuine integrity would have recognized that Attorney X's motivation for retaining him was not his general expertise but his specific prior access to the plaintiff's confidential case analysis, and would have understood that accepting such a retention — regardless of the quality of the resulting work — would compromise the character of his professional practice. Virtue ethics asks not merely whether the act was permissible but whether it reflects the character of a person of professional integrity. Engineer A's initial refusal to produce a favorable but inaccurate plaintiff report demonstrated exactly the kind of integrity the forensic engineering role demands. His subsequent acceptance of the defense retention, knowing the basis for Attorney X's interest, represents a failure to sustain that integrity through the full arc of the engagement. The virtuous forensic engineer would have declined the defense retention and, if appropriate, disclosed to Attorney X the ethical reasons for that declination.
Regarding Q401: Engineer A's acceptance of the defense retention would have been significantly more defensible — though not automatically permissible — if the personal injury case had been fully resolved and closed before Attorney X approached him. In a concluded matter, the proceeding-duration loyalty floor and the same-matter adversarial conflict prohibition would no longer be operative, because there is no ongoing proceeding to contaminate and no active plaintiff position to undermine through structural conflict. However, two residual ethical constraints would remain. First, the perpetual confidentiality obligation under Code Section II.1.c. would continue to bar Engineer A from deploying or relying upon plaintiff confidential information in any subsequent engagement. Second, Engineer A would need to assess whether the subject matter of any new engagement was sufficiently distinct from the concluded matter that his prior confidential knowledge would not materially influence his new analysis. If those conditions could be satisfied — if the matter were truly concluded and Engineer A could genuinely produce an analysis independent of his prior confidential knowledge — then the engagement might be permissible. The critical distinction is that the switching-sides prohibition is proceeding-duration-specific, while the confidentiality obligation is indefinite.
Regarding Q402: Engineer A's proactive disclosure of his prior plaintiff-side engagement to Attorney X before agreeing to the defense retention would have been ethically required as a matter of conflict screening, but it would not have cured the underlying ethical violation. The Pre-Acceptance Conflict Screening obligation required Engineer A to identify and disclose the conflict before accepting the retention, and his failure to do so constitutes a distinct procedural ethical lapse. However, even if Engineer A had fully disclosed his prior engagement and Attorney X had proceeded with full knowledge of that conflict, the structural bar to the engagement would remain. The switching-sides prohibition and the former client consent prerequisite are not satisfied by defense attorney knowledge of the conflict — they require the consent of the former client, the plaintiff, whose interests are at stake. Attorney X's informed acceptance of the conflict does not substitute for plaintiff consent, because the plaintiff is the party whose confidential information is at risk and whose litigation position is adversely affected. Disclosure to the retaining attorney is a necessary but not sufficient condition for resolving the conflict.
Regarding Q403: If Engineer A had raised the ethical conflict with Attorney Z before his services were terminated — specifically disclosing that his findings were adverse to the plaintiff and discussing the implications — this pre-termination disclosure would have altered his subsequent ethical obligations in meaningful but not dispositive ways. Such disclosure would have fulfilled the Switching Sides Full Discussion With Original Client Obligation, which the Board identified as violated. It would also have given Attorney Z the opportunity to explicitly invoke confidentiality protections, to document the scope of confidential information shared, and potentially to seek protective measures against subsequent adverse use of that information. However, pre-termination disclosure would not have eliminated the switching-sides prohibition or the former client consent prerequisite for subsequent defense engagement. What it would have done is place Engineer A in a cleaner ethical posture: having fulfilled his disclosure obligations to the original client, he would then face the remaining question of whether plaintiff consent had been obtained for defense engagement — and absent such consent, the defense engagement would remain impermissible. The pre-termination disclosure failure thus compounds the switching-sides violation but does not constitute its sole basis.
Regarding Q404: If Attorney X had sought to retain Engineer A for a completely unrelated personal injury case involving different parties and facts, rather than the same proceeding in which he had reviewed confidential plaintiff information, the ethical outcome would differ substantially. The switching-sides prohibition and the same-matter adversarial conflict bar are keyed to the identity of the proceeding and the parties involved. In an unrelated matter, there would be no structural conflict of divided loyalty, no ongoing adversarial proceeding to contaminate, and no former client whose active litigation position would be undermined. The Unrelated Matter Permissibility Boundary constraint confirms this distinction. However, even in an unrelated matter, Engineer A would retain a residual obligation to ensure that no confidential information obtained during the plaintiff-side engagement in the original case was material to or deployable in the new engagement. If the new matter were factually and legally distinct such that the prior confidential knowledge had no bearing on the new analysis, the engagement would be permissible. The ethical bar is thus matter-specific and party-specific, not a general prohibition on Engineer A serving defense clients in any personal injury case.
The most significant principle tension in this case — between the Forensic Expert Non-Advocate Objectivity principle and the Switching Sides Prohibition — was resolved decisively in favor of the structural prohibition, and that resolution carries an important lesson: objectivity is a necessary but not sufficient condition for ethical forensic participation. Engineer A correctly applied the objectivity principle in the initial engagement by refusing to produce a favorable but inaccurate plaintiff report. That same objectivity made him attractive to the defense. But the Board's conclusion makes clear that genuine technical independence cannot cure a structural conflict of interest arising from prior same-matter confidential engagement. The two principles do not cancel each other out; rather, they operate on different planes. Objectivity governs the quality and honesty of the expert's analysis; the switching sides prohibition governs the structural permissibility of the engagement itself. An engineer can be perfectly objective and still be ethically barred from participating. This case teaches that structural conflict rules function as threshold gatekeeping conditions that precede and override merit-based considerations such as the expert's demonstrated impartiality.
The Confidentiality Duration Indeterminacy principle and the Absolute Loyalty Prohibition Boundary principle exist in apparent tension but are reconciled in this case by recognizing that they operate on different axes of obligation. The Board acknowledges that Engineer A is not bound by absolute loyalty to the plaintiff — he was not required to suppress his findings or produce a false report. That boundary correctly limits the loyalty principle to prevent it from becoming a tool of corruption. However, the confidentiality obligation is categorically different: it persists indefinitely post-termination and is not diminished by the fact that Engineer A's findings happened to be adverse to the plaintiff. The reconciliation principle this case establishes is that the termination of a loyalty obligation (Engineer A need not advocate for the plaintiff) does not simultaneously terminate the confidentiality obligation (Engineer A may not deploy plaintiff case knowledge in an adverse engagement). These two obligations have different durations and different triggers. Loyalty ends when the engagement ends; confidentiality does not. Engineer A's acceptance of the defense retention conflated these two distinct obligations, treating the end of loyalty as though it also ended confidentiality, which the Board implicitly rejects.
This case establishes a hierarchy among competing forensic engineering principles in which structural conflict prohibitions rank above both disclosure mechanisms and objectivity affirmations. Three principles that might individually seem to mitigate or cure the ethical problem — Engineer A's demonstrated objectivity, his pledge to produce an independent report, and the fact that his engagement was formally terminated before the defense retention — are each independently insufficient to override the switching sides prohibition and the former client adversarial participation prohibition. The case thereby teaches that in the forensic engineering context, the ethical framework treats certain structural conflicts as non-waivable by the engineer's own conduct or representations. Only the former client's consent — a condition entirely outside Engineer A's control and conspicuously absent here — could theoretically lift the bar. This consent-prerequisite mechanism reveals that the prohibition is not truly absolute in a metaphysical sense but is absolute from the engineer's unilateral perspective: Engineer A cannot cure the conflict through any action of his own. The principle prioritization that emerges is: (1) former client consent prerequisite as the threshold condition; (2) structural conflict prohibition as the operative bar absent that consent; (3) objectivity and disclosure as relevant but subordinate considerations that cannot substitute for consent. This hierarchy has significant implications for how forensic engineers must screen engagements before acceptance rather than attempting to manage conflicts after the fact.
Confidential Information Constructive Retention Non-Blotting Engineer A Post-Termination
Engineer A's acceptance of the defense engagement implicitly assumed he could compartmentalize or disregard the confidential information obtained during the plaintiff-side engagement; the Board rejected this assumption as factually and ethically untenable.
Terminated Engagement Confidential Information Perpetual Non-Adversarial-Use Constraint
Engineer A could not treat the termination of his plaintiff-side engagement as enabling him to 'blot all' confidential information from his mind and start from 'square one' — the confidential information, documents, and case knowledge obtained during the plaintiff-side engagement remained constructively retained and could not be adversarially deployed against the plaintiff in the same proceeding.
BER Case No. 85-4; NSPE Code Section III.4
This Board cannot accept the proposition that following the termination of his relationship with attorney for the plaintiff he would 'blot all' of that information from his mind and start from 'square one' in performing his engineering and safety analysis report
From termination of plaintiff-side engagement through the duration of the proceeding
Engineer A throughout his first analysis had access to information, documents, etc., that were made available to him by the plaintiff and plaintiff's attorney in a cooperative and mutually beneficial manner
Confidential Knowledge Retained Post-Termination
Confidentiality Duration Indeterminacy Invoked for Engineer A Post-Relationship Obligations
Duration of Engineer A's confidentiality and loyalty obligations to the plaintiff after termination of his engagement with Attorney Z
The Board acknowledged that it could not specify precisely how long Engineer A's post-relationship confidentiality and loyalty obligations to the plaintiff would persist, establishing the indeterminate nature of post-relationship confidentiality duration while setting a minimum floor at the proceeding's duration
The Board's explicit refusal to specify the outer bound of post-relationship confidentiality duration reflects the indeterminacy principle — the duration is contextually determined and cannot be fixed in advance — while the proceeding-duration floor provides the minimum threshold
How long that duty of trust and loyalty must be maintained we are not prepared to state at this time.
The indeterminacy principle was applied to acknowledge the open-ended nature of the obligation while the Board provided the minimum anchor of proceeding duration
we are certainly willing to state that such a duty exists for the duration of one legal proceeding.
Confidentiality Principle Applied To Plaintiff Case Information Transmitted To Engineer A
Confidential plaintiff case information and forensic analysis materials
The confidential case information, documents, and analytical access provided by Attorney Z to Engineer A during the plaintiff-side forensic engagement created a confidentiality obligation that survived termination of the engagement and bars Engineer A from using that information — even implicitly — in the subsequent defense engagement
The confidentiality obligation applies to all information obtained in the course of the professional engagement, including the analytical conclusions Engineer A reached about fault — using those conclusions (even without explicit disclosure) in the defense engagement violates the confidentiality principle
Confidentiality obligation survives termination and full payment of fees — the plaintiff's attorney's transmission of confidential information to Engineer A created an obligation that cannot be extinguished by the mechanics of engagement termination
Confidentiality Principle Invoked for Plaintiff Information Accessed by Engineer A
Plaintiff's confidential case documents and information shared with Engineer A during initial retention
Engineer Professional Autonomy and Independence Preservation Principle
The confidential information, documents, and cooperative access provided by the plaintiff and plaintiff's attorney to Engineer A during his initial retention created a confidentiality obligation that persisted after the formal engagement ended and barred Engineer A from using that information in service of the opposing party
The Board treated the plaintiff's voluntary transmission of confidential information to Engineer A as fully engaging his confidentiality obligation under Section III.4, consistent with the Client-Transmitted Confidentiality Stronger Obligation Principle
Confidentiality obligation prevailed; Engineer A could not credibly provide independent analysis for the defense because doing so would necessarily implicate his prior confidential access to the plaintiff's information
we must recognize that while Engineer A may not currently have a professional relationship with a former client, he still has an ethical obligation to that client to protect certain confidential information and facts
Conflict of Interest Avoidance — Engineer A Same-Matter Dual-Side Structural Conflict
The structural conflict arose from Engineer A having served plaintiff's side in the same active litigation, having received confidential information, and then agreeing to serve the defendant's side — creating an irresolvable conflict of interest that the NSPE Code and BER precedent prohibit.
Conflict of Interest Avoidance (Constraint)
Engineer A was required to avoid the structural conflict of interest created by accepting retention by the defendant's attorney in the same personal injury case in which he had previously served as the plaintiff's forensic consultant — a conflict that was irresolvable by disclosure alone given the same-matter identity and prior confidential access.
NSPE Code Section II.4; NSPE Code Section III.4.b; BER Case No. 85-4
From the moment Attorney X sought Engineer A's retention through the conclusion of the litigation
Thereafter, Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case and seeks to retain Engineer A to provide an independent and separate engineering and safety analysis report.
Should Engineer A accept retention by Attorney X (defense) in the same active personal injury proceeding in which he previously held a confidential plaintiff-side engagement, or decline on the basis that termination of the prior engagement does not cure the structural conflict?
Engineer A, having been retained by Attorney Z on behalf of the plaintiff and having gained access to confidential case documents and strategic analysis, is approached by Attorney X (defense counsel) after his engagement is terminated. Engineer A must decide whether to accept the defense retention in the same active personal injury proceeding, recognizing that termination of the prior engagement does not extinguish his confidentiality and loyalty obligations, and that Attorney X's motivation for seeking him is transparently linked to his prior plaintiff-side access.
Refuse Attorney X's retention on the grounds that the prior plaintiff-side engagement in the same active proceeding creates an irremediable structural conflict that termination alone cannot cure, and that Attorney X's motivation — exploiting prior confidential access — independently disqualifies the engagement.
Accept the defense retention on the basis that the prior engagement was formally terminated, that Engineer A is no longer bound by loyalty to the plaintiff, and that his pledge to produce a separate and independent engineering and safety analysis report is sufficient to manage any residual conflict.
Condition acceptance of the defense retention on obtaining the informed consent of Attorney Z and the plaintiff, recognizing that the Former Client Adversarial Participation Prohibition contains a consent-prerequisite mechanism that could theoretically lift the structural bar if all interested parties agree.
Should Engineer A treat his pledge to produce a separate and independent defense-side report as sufficient to cure the ethical conflict arising from his prior plaintiff-side confidential engagement, or must he recognize that mental segregation of prior confidential knowledge is impossible and that the pledge cannot override the structural bar?
Engineer A agreed to provide a 'separate and independent' engineering and safety analysis report for the defense as a means of framing the engagement as free from the taint of his prior plaintiff-side work. The board must assess whether this pledge of independence — combined with Engineer A's demonstrated objectivity in refusing to produce a false plaintiff report — is sufficient to cure the structural conflict created by his prior confidential access to the plaintiff's case materials, or whether the mental segregation of that knowledge is impossible and the pledge therefore illusory.
Acknowledge that the pledge to produce an independent report cannot cure the structural conflict created by prior confidential plaintiff-side access, because the mind cannot un-know what it learned in confidence, and decline the defense engagement on that basis regardless of stated intent to be objective.
Proceed with the defense engagement on the basis that Engineer A's prior refusal to produce a false plaintiff report demonstrates genuine independence of judgment, and that a technically rigorous defense report produced from first principles satisfies the forensic expert's non-advocate obligation regardless of prior engagement history.
Accept the defense engagement but formally restrict the scope of analysis to physical evidence and publicly available data, explicitly excluding any reliance on information obtained during the plaintiff-side engagement, and document this limitation in the engagement agreement as a structural safeguard against confidential information contamination.
Should Engineer A proactively disclose to Attorney Z, before allowing the engagement to be terminated, that his findings are adverse to the plaintiff and discuss the ethical implications of that situation — including the risk of subsequent defense retention — or may he allow the engagement to dissolve passively without that discussion?
Before his engagement with Attorney Z was terminated, Engineer A had determined that his analysis pointed to plaintiff fault and that he could not produce a report favorable to the plaintiff. Rather than proactively disclosing this finding and discussing the ethical implications with Attorney Z — including the risk that termination would make him available to opposing counsel — Engineer A allowed the engagement to dissolve passively. This pre-termination omission left Attorney Z and the plaintiff without the opportunity to invoke consent mechanisms, assert confidentiality protections, or otherwise respond to the emerging conflict before it crystallized.
Before allowing the engagement to be terminated, proactively inform Attorney Z that the analysis points to plaintiff fault, explain the ethical dilemma this creates — including the risk that termination could make Engineer A available to opposing counsel — and give Attorney Z the opportunity to respond, invoke confidentiality protections, or address the conflict.
Decline to produce the plaintiff-favorable report and allow Attorney Z to terminate the engagement without proactively raising the adverse findings or the ethical implications of termination, on the basis that the decision to terminate belongs to the client and that Engineer A's duty of honesty is satisfied by refusing to produce a false report.
Communicate the adverse findings to Attorney Z in a formal written withdrawal letter that documents the scope of analysis conducted and the basis for Engineer A's inability to continue, without explicitly raising the risk of subsequent defense retention, thereby creating a record of the findings while leaving the ethical implications of termination for Attorney Z to assess independently.
Should Engineer A accept Attorney X's defense-side retention in the same active personal injury proceeding in which he previously held a confidential plaintiff-side engagement, or decline on the basis of the switching-sides prohibition and former client consent prerequisite?
Engineer A: Switching Sides and Former Client Consent Prerequisite in Same Active Proceeding
Refuse Attorney X's retention on the grounds that the switching-sides prohibition and the former client consent prerequisite bar participation in the same active proceeding, and notify Attorney X of the ethical reasons for declination.
Accept the defense engagement on the condition of producing a genuinely independent and objective report, treating Engineer A's demonstrated impartiality and formal termination from the plaintiff engagement as sufficient to resolve any structural conflict.
Condition acceptance of the defense retention on obtaining informed consent from the plaintiff or Attorney Z, treating the former client consent prerequisite as a curable procedural requirement rather than a structural bar, and proceed only if that consent is granted.
Should Engineer A treat his confidentiality and loyalty obligations to the plaintiff as having lapsed upon termination of the engagement — permitting him to participate adversely in the same proceeding — or must he recognize that the confidentiality obligation persists indefinitely and the loyalty floor persists for the duration of the active proceeding?
Engineer A: Post-Termination Confidentiality Perpetuation and Proceeding-Duration Former Client Loyalty Persistence
Recognize that the confidentiality obligation persists indefinitely post-termination and that mental segregation of plaintiff confidential information is impossible, and therefore decline any adverse participation in the same matter regardless of stated intent to produce an independent report.
Treat the formal termination of the plaintiff-side engagement as dissolving both the loyalty and confidentiality obligations, on the basis that Engineer A is not an absolute advocate for the plaintiff and that his findings were adverse to the plaintiff in any event, making the confidential information effectively non-prejudicial.
Accept the defense engagement while implementing explicit procedural safeguards — such as limiting the scope of the defense report to technical matters not addressed in the plaintiff engagement and documenting the analytical firewall — treating mental segregation as achievable through professional discipline and scope limitation.
Should Engineer A proactively disclose to Attorney Z that his findings are adverse to the plaintiff and discuss the ethical implications before allowing the engagement to be passively terminated — and separately, should he recognize and refuse Attorney X's retention as motivated by exploitation of his prior confidential access rather than his general expertise?
Engineer A: Pre-Termination Disclosure Obligation and Adverse Retention Motivation Recognition
Proactively disclose to Attorney Z that findings are adverse to the plaintiff and discuss ethical implications before termination; subsequently refuse Attorney X's retention upon recognizing that it is motivated by exploitation of prior confidential access rather than independent expertise.
Allow the plaintiff-side engagement to dissolve without proactive disclosure of adverse findings, treating termination as a natural conclusion of the engagement, and accept Attorney X's retention on the basis that Engineer A's general forensic expertise — not insider access — is the operative basis for the new engagement.
Fulfill the pre-termination disclosure obligation by surfacing adverse findings to Attorney Z, but treat the subsequent defense retention question as a separate and independent evaluation — accepting Attorney X's retention if Engineer A concludes his analysis will be genuinely independent of plaintiff confidential information, without seeking former client consent.
Should Engineer A accept the defense-side retention by pledging to produce an independent engineering and safety analysis report, or decline the engagement because his prior confidential plaintiff-side engagement in the same active proceeding creates an irremediable structural conflict that no pledge of independence can cure?
Engineer A Independent Report Pledge as Non-Cure of Switching-Sides Violation: Engineer A, having been retained by plaintiff's attorney and having conducted confidential analysis pointing to plaintiff fault, is subsequently approached by defense attorney Attorney X — who specifically sought him out because of his prior plaintiff-side engagement — and must decide whether to accept the defense retention by pledging to produce an independent report, or to decline the engagement on structural conflict grounds.
Refuse the defense engagement entirely, informing Attorney X that the prior confidential plaintiff-side engagement in the same active proceeding creates an irremediable structural conflict that no pledge of independence or formal termination can cure, and that only former client consent — which has not been obtained — could permit participation.
Accept the defense retention on the basis that Engineer A's demonstrated objectivity — evidenced by his prior refusal to produce a false plaintiff report — combined with a formal pledge to conduct an entirely independent analysis, is sufficient to cure any structural conflict arising from the prior engagement, particularly given that his findings were adverse to the plaintiff rather than favorable.
Condition acceptance of the defense retention on obtaining explicit informed consent from the plaintiff or Attorney Z, disclosing to both the nature of Attorney X's approach and the scope of confidential information Engineer A retains, thereby satisfying the Former Client Adversarial Participation Prohibition's consent-prerequisite mechanism before proceeding.
Should Engineer A proactively disclose to Attorney Z — before allowing the engagement to be passively terminated — that his forensic findings point to plaintiff fault and discuss the ethical implications of that situation, or should he treat the adverse findings as confidential work product and allow the engagement to dissolve without surfacing the conflict?
Pre-Termination Disclosure Obligation and Post-Termination Confidentiality Perpetuation: Before his services were terminated, Engineer A had reached findings adverse to the plaintiff but did not proactively disclose this to Attorney Z or discuss the ethical implications of the situation. This omission foreclosed the plaintiff's ability to exercise the consent-prerequisite mechanism and left the circumstances of termination in a form exploitable by opposing counsel, compounding the subsequent switching-sides violation.
Before allowing the engagement to be terminated, affirmatively disclose to Attorney Z that the forensic analysis points to plaintiff fault, explain the ethical implications of that finding for the engagement and any future adverse participation, and give Attorney Z the opportunity to explicitly invoke confidentiality protections and address the consent-prerequisite question.
Treat the adverse findings as confidential work product belonging to the engagement, decline to produce the requested favorable report, and allow Attorney Z to terminate the engagement without proactively surfacing the nature of the findings — on the basis that the findings were developed in confidence for the client and their disclosure is the client's prerogative, not the engineer's obligation.
Provide Attorney Z with a written summary documenting the scope of confidential information reviewed, the nature of the analytical conclusions reached, and the ethical constraints that would apply to any future adverse use of that information — without characterizing the findings as definitively adverse — thereby creating a record that preserves the consent-prerequisite mechanism while respecting the confidential character of the work product.
Decline Favorable Plaintiff Report (Action 2) → Engineer A Services Terminated (Event 3)
Disclosure Insufficiency for Structural Conflict Invoked Against Independent Report Claim
Engineer A's claimed ability to provide an independent report for Attorney X despite prior retention by Attorney Z
Engineer A's agreement to provide a 'separate and independent engineering and safety analysis report' for the defense was held insufficient to cure the structural conflict created by his prior access to the plaintiff's confidential information — because the conflict was structural and indelible, not curable by procedural commitment to independence
The Board rejected the proposition that a commitment to independent analysis could cure a structural conflict arising from prior confidential access — the contamination of prior knowledge makes truly independent analysis impossible regardless of the engineer's stated intentions
Disclosure Insufficiency for Structural Conflict of Interest
Nor is the fact that Engineer A has agreed to provide a 'separate and independent engineering and safety analysis report.'
The structural nature of the conflict prevailed over Engineer A's assurance of independence; the Board found he would not be capable of providing a truly separate and independent report
This Board cannot accept the proposition that following the termination of his relationship with attorney for the plaintiff he would 'blot all' of that information from his mind
we do not believe that Engineer A would be capable of providing a 'separate and independent' report for the defendant in this case.
Divided Loyalty Irreconcilability Invoked in Engineer A Dual-Party Context
Engineer A's sequential retention by plaintiff's attorney and then defense attorney in the same proceeding
The Board applied the divided loyalty analysis from BER Cases 76-3 and 74-2 to distinguish permissible dual engagement (where loyalties are not divided) from impermissible engagement (where the engineer is effectively on both sides of a divided issue) — finding Engineer A's situation analogous to BER Case 76-3 where the engineer was on both sides
The Board distinguished BER Case 74-2 (part-time municipal consultants whose loyalties were not divided) from BER Case 76-3 (engineer on both sides of a divided issue) and found Engineer A's situation fell squarely in the latter category — his sequential retention by opposing parties in the same proceeding created an irreconcilable division of loyalty
Divided Loyalty Irreconcilability in Dual-Client Engineering Roles
the key distinction between BER Case 74-2 and BER Case 76-3 was that in BER Case 74-2 the engineer's loyalties were not divided, whereas in BER Case 76-3 Engineer A is seen to be on both sides of the divided issue.
The irreconcilability of divided loyalty prevailed; the argument that Engineer A's loyalties were no longer divided because he had terminated the first engagement was rejected because the ethical obligation to the former client persisted
we must recognize that while Engineer A may not currently have a professional relationship with a former client, he still has an ethical obligation to that client
Divided Loyalty Key Distinction BER 76-3 vs BER 74-2 Application
The Board cited the BER 74-2 / BER 76-3 distinction to establish the divided loyalty principle applicable to Engineer A's switching-sides conduct in the present case.
Engineer A (BER Case 76-3 precedent application)
Dual-Capacity Non-Divided Loyalty Advisory Impartiality Constraint
The key ethical distinction between permissible dual-capacity arrangements (BER Case 74-2) and impermissible conflicts (BER Case 76-3) is whether the engineer's loyalties are divided — dual-capacity arrangements are permissible only when the engineer's loyalties are not divided, and become impermissible when the engineer is placed on both sides of a divided issue.
BER Case 74-2; BER Case 76-3; BER Case No. 85-4
the key distinction between BER Case 74-2 and BER Case 76-3 was that in BER Case 74-2 the engineer's loyalties were not divided, whereas in BER Case 76-3 Engineer A is seen to be on both sides of the divided issue
It may be argued, as was stated in the earlier BER Case 74-2, that Engineer A's loyalties under these facts were not divided because he had terminated his relationship with plaintiff's attorney
Engineer Confidentiality and Loyalty Obligation Standard
Engineer A in evaluating obligations to former client Attorney Z after services were terminated
Governs whether Engineer A may use or disclose information obtained during his engagement with Attorney Z when subsequently working for Attorney X in the same case, and the duration of confidentiality obligations after termination
while Engineer A may not currently have a professional relationship with a former client, he still has an ethical obligation to that client to protect certain confidential information and facts, as well as a certain duty of trust and loyalty
we are certainly willing to state that such a duty exists for the duration of one legal proceeding
Establishes that an engineer's duty of trust and loyalty to a former client persists beyond the termination of the professional relationship, at minimum for the duration of the legal proceeding in which the engineer was engaged
Engineer A Adversarial Retention Motivation Awareness Obligation Violation
Attorney X sought to retain Engineer A knowing of his prior termination by plaintiff's attorney. The Board found that Engineer A had to have been aware of the reasons why his services were being retained by virtue of the sequence of events, and that even subjective naivety would not excuse his acceptance.
Engineer A was obligated to recognize that Attorney X's motivation for retaining him was his prior access to the plaintiff's confidential information and his perceived ability to provide a favorable defense report, and to decline the retention on that basis.
It is clear from the facts that the real reason for the defendant's attorney's hiring Engineering A was that he believed Engineer A would provide a report that would be favorable.
At the time of being approached by Attorney X
Engineer A had to have been aware of the reasons why his services were being retained by virtue of the sequence of events.
Even if Engineer A was so naive as to believe that Attorney X was unaware of the circumstances of his termination, we believe that this would not excuse his actions.
Engineer A Adverse Retention Motivation Recognition Deficit
Engineer A failed to adequately recognize that Attorney X's motivation for retaining him was specifically tied to his prior access to plaintiff's confidential information and case strategy, and failed to respond ethically by declining the engagement — even if he was naive about Attorney X's awareness of the circumstances of his termination, this naivety did not excuse his acceptance of the retention
Attorney X retained Engineer A knowing or having reason to know of his prior engagement by plaintiff's counsel, and Engineer A accepted this retention without adequately recognizing or responding to the exploitative motivation
Acceptance of defense-side retention without adequately considering or responding to the evident motivation behind Attorney X's approach
Engineer A Adverse Retention Motivation Recognition and Ethical Response
Engineer A failed to recognize that Attorney X's motivation for seeking his retention was specifically tied to his prior access to plaintiff-side information and his known adverse conclusion, and failed to respond ethically by declining the engagement.
Attorney X learned specifically of the circumstances of Engineer A's termination — including his adverse conclusion — before seeking retention, making the exploitation motivation transparent to an ethically attentive engineer.
Engineer A's agreement to provide the defense report without recognizing or responding to the exploitation-motivated nature of Attorney X's retention approach demonstrates a failure of this capability.
Engineer A BER Multi-Precedent Forensic Side-Switching Conflict Synthesis Deficit
BER Multi-Precedent Forensic Side-Switching Conflict Synthesis Capability
Engineer A lacked or failed to apply the capability to synthesize BER Cases 74-2, 76-3, 82-2, and 82-6 into a coherent framework prohibiting same-matter side-switching, leading him to accept retention by Attorney X in the same personal injury matter in which he had previously served Attorney Z and the plaintiff
Engineer A accepted retention by defense attorney Attorney X in the same personal injury case in which he had previously been retained by plaintiff's attorney Attorney Z, despite the existence of multiple BER precedents establishing the impermissibility of such side-switching
Failure to recognize that the consistent normative thread across all four BER precedents prohibited his acceptance of defense-side retention in the same proceeding
In BER Case 82-6, this Board ruled that where an engineer is retained by the U.S. government to study the causes of a dam failure, it would be unethical for the engineer to agree to be retained by the contractor involved in the construction of the dam.
Engineer A Confidential Information Access from Plaintiff
From initial cooperative engagement with Attorney Z through at least the conclusion of the legal proceeding
Engineer A's possession of confidential documents, information, and materials provided by plaintiff and plaintiff's attorney during the first engagement
Not terminated — persists beyond formal relationship termination
Plaintiff and plaintiff's attorney providing Engineer A with documents and information in a cooperative and mutually beneficial manner during the first analysis
Engineer A Confidential Information Mental Segregation Impossibility Recognition
Confidential Information Mental Segregation Impossibility Recognition Capability
Engineer A failed to recognize that having been exposed to plaintiff-side confidential information, documents, and case facts during his prior engagement, it was not realistically possible for him to mentally segregate that information when performing work for the defense — and that this impossibility rendered the defense engagement ethically impermissible regardless of his stated intention to provide an 'independent and separate' report.
Engineer A had reviewed plaintiff-side materials, documents, and facts during his prior engagement, creating an informational exposure that could not be undone by termination of the engagement.
Engineer A's acceptance of the defense retention on the premise that he could provide an 'independent and separate' analysis demonstrates a failure to recognize the mental segregation impossibility that makes such independence unrealistic.
Attorney X...seeks to retain Engineer A to provide an independent and separate engineering and safety analysis report.
Engineer A Confidential Plaintiff Information Held Post-Termination
From initial retention by Attorney Z onward; persists after termination
Following Engineer A's review and analysis, Engineer A determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff
Engineer A's possession of confidential case information, strategy, and analysis obtained during plaintiff-side engagement
Not terminated — confidential information obligations persist indefinitely
Engineer A's review and analysis of plaintiff's case materials during engagement with Attorney Z
Engineer A Conflict of Interest Avoidance Divided Loyalty Violation
The Board applied the divided loyalty analysis from BER Cases 76-3 and 74-2, finding that unlike permissible dual engagements where loyalties are not divided, Engineer A's sequential engagement on both sides of the same matter created an irreconcilable divided loyalty situation.
Forensic Expert Non-Advocate Objectivity in Settlement Context Obligation
Engineer A was obligated to avoid placing himself in a position of divided loyalty by accepting retention from both sides of the same adversarial proceeding, recognizing that his prior plaintiff-side engagement and his subsequent defense-side engagement created an irreconcilable conflict of interest.
From the time of accepting defense retention
Engineer A was doing more than offering his expertise in engineering matters as an aid to a fuller understanding by the county board; he was in fact a paid advocate of a private interest in open conflict with the engineering opinions of the county engineers.
Engineer A Conflict of Interest — Simultaneous Opposing-Side Obligations
From Engineer A's acceptance of retention by Attorney X through Board determination
All of the aforementioned cases represent longheld BER views relating to the question of conflicts of interest and the duty of engineers who gain, or are perceived to have gained, access to knowledge that may be advantageous to one client and disadvantageous to another
Engineer A's structural conflict arising from having served plaintiff's side and then accepting retention by defendant's side in the same active legal proceeding
Board's ethical determination; Engineer A's disengagement from the cross-side role
Section III.4.b. is clear in this regard
Engineer A accepting engagement from Attorney X while holding confidential information and continuing loyalty obligations to Attorney Z's client
Engineer A Continuing Post-Termination Loyalty to Plaintiff's Attorney
From termination of Engineer A's relationship with Attorney Z through at least the conclusion of the legal proceeding
Engineer A's persisting ethical obligations to Attorney Z and the plaintiff after formal termination of the professional relationship
Conclusion of the legal proceeding (not yet terminated at time of analysis)
How long that duty of trust and loyalty must be maintained we are not prepared to state at this time
Termination of Engineer A's retainer with Attorney Z while the legal proceeding remained active
Engineer A Cross-Side Retention by Defendant Attorney
From Attorney X's approach to Engineer A through Engineer A's agreement to provide the report
Cross-Side Retention After Confidential Plaintiff Access State
Engineer A being retained by defendant's Attorney X after having conducted confidential review for plaintiff's Attorney Z in the same proceeding
Not yet terminated — Engineer A agrees to provide the report, making this an active and ongoing state
Attorney X learns of Engineer A's prior plaintiff-side engagement and termination, then seeks to retain Engineer A for the opposing side in the same case
Engineer A Cross-Side Retention in Active Litigation
From the moment Engineer A accepted retention by Attorney X through the Board's ethical determination
the mere fact that Engineer A ceased performing services for Attorney Z would not be an adequate solution to the ethical dilemma at hand
Engineer A's engagement by defendant's attorney (Attorney X) after having been retained by plaintiff's attorney (Attorney Z) in the same legal proceeding
Board determination that the engagement was ethically impermissible
Nor do we believe that latter point that Engineer A would be capable of providing a 'separate and independent' report for the defendant in this case
Attorney X's approach to retain Engineer A after Engineer A's termination by Attorney Z in the same proceeding
Engineer A Defense-Side Retention Exploitation Recognition
Defense-Side Retention Exploitation Recognition Capability
Engineer A failed to recognize that Attorney X's specific knowledge of the circumstances of his termination — including his adverse conclusion — meant that the defense retention was motivated by exploitation of his prior plaintiff-side access, rendering the engagement impermissible regardless of his intention to be independent.
The defense attorney specifically sought Engineer A because of what he had learned and concluded during the plaintiff-side engagement — a paradigmatic exploitation scenario that Engineer A failed to identify.
Attorney X's explicit knowledge of 'the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case' before seeking retention makes the exploitation motivation transparent, yet Engineer A agreed to provide the report.
Engineer A Defense-Side Retention Exploitation Recognition Deficit
Engineer A failed to recognize that Attorney X's motivation for seeking his retention was specifically tied to his prior access to plaintiff-side confidential information, case strategy, and documents, and that accepting such retention would constitute exploitation of that prior access regardless of his belief that he could render an independent opinion
Attorney X retained Engineer A knowing of his prior engagement by plaintiff's counsel, and Engineer A accepted without adequately recognizing that the retention was motivated by exploitation of his prior access
Acceptance of defense-side retention without recognizing the exploitative nature of the engagement, even though the sequence of events made the motivation evident
Engineer A Divided Loyalty vs Terminated Relationship Distinction Deficit
Divided Loyalty vs Terminated Relationship Ethical Equivalence Recognition Capability
Engineer A failed to recognize that the BER Case 74-2 principle — that loyalties are not divided when a prior relationship has been terminated — does not apply to forensic engagements where confidential information has already been transmitted, and therefore could not correctly distinguish between the permissible post-termination scenario in BER 74-2 and the impermissible side-switching scenario in his own case
Engineer A may have reasoned that because he had terminated his relationship with Attorney Z, his loyalties were no longer divided — a reasoning pattern the BER explicitly rejected by distinguishing BER 74-2 from the present facts
Apparent reliance on the termination of his relationship with Attorney Z as resolving the conflict, without recognizing that the BER 74-2 principle does not extend to forensic contexts involving prior confidential information transmission
However, we must recognize that while Engineer A may not currently have a professional relationship with a former client, he still has an ethical obligation to that client to protect certain confidential information and facts, as well as a certain duty of trust and loyalty.
In BER Case 76-3, this Board distinguished that case from earlier BER Case 74-2 in which the Board held that a part-time consultant arrangement to municipalities by engineers in private practice did not preclude those same engineers from providing normal engineering service to the same municipalities.
Engineer A Ethical Dilemma — Competing Duties in Adversarial Proceeding
At a bare minimum, Engineer A should have fully discussed the issue with Attorney Z.
Engineer A's competing duties between obligation to new client (Attorney X/defendant), continuing loyalty to former client (Attorney Z/plaintiff), and overarching duty of objectivity as expert
Board's ethical determination resolving the priority ordering
Had Engineer A ceased his involvement in the case following the termination of his relationship with Attorney Z, he would have been acting in a wholly ethical manner.
the duty of trust and loyalty must be maintained
Engineer A accepting cross-side engagement while holding continuing obligations to prior client and objective expert duties
Engineer A Expert Witness Objectivity Obligation in Adversarial Proceeding
Throughout both engagements — with Attorney Z and subsequently with Attorney X
we note that it has sometimes been suggested that engineers who act as paid expert witnesses have an inherent conflict between their duty to tell the truth and their obligation to perform their services consistent with the best interests of the client
Engineer Non-Advocate Expert Independence State
Engineer A's structural obligation to maintain objectivity as an expert witness rather than functioning as a paid advocate in the adversarial legal proceeding
Conclusion of Engineer A's involvement in the proceeding
Engineer A did not act in the role as a 'hired gun,' seeking to testify in favor of the client who was paying his fee
we make this point to underscore the importance of forensic engineers 'calling them as they see them'
Engineer A's initial retention as expert witness/technical analyst in an adversarial legal proceeding
Engineer A Forensic Expert Hired Gun Non-Participation Correct Initial Application
Forensic Expert Witness Objectivity Maintenance Capability
Engineer A correctly applied the forensic expert objectivity standard during his initial engagement with Attorney Z, rendering an analysis report that was inconsistent with the plaintiff's legal interests rather than acting as a 'hired gun' — demonstrating that his ethical transgressions arose from his subsequent engagement with Attorney X, not from his initial forensic work
Engineer A's initial forensic work for Attorney Z was conducted with objectivity and integrity; his ethical violations arose solely from his subsequent acceptance of defense-side retention in the same matter
Development of an analysis report adverse to the plaintiff's legal interests during the initial engagement with Attorney Z, demonstrating independence from the retaining party's litigation interests
Engineer A developed an analysis report that was inconsistent with the legal interests of the client.
Had Engineer A ceased his involvement in the case following the termination of his relationship with Attorney Z, he would have been acting in a wholly ethical manner. His transgressions were a result of his subsequent involvement with Attorney X.
Under the facts, Engineer A did not act in the role as a 'hired gun,' seeking to testify in favor of the client who was paying his fee.
Engineer A Forensic Expert Honesty and Integrity Correctly Applied Initial Engagement
Engineer A correctly fulfilled this obligation during his plaintiff-side engagement by producing an analysis report that was inconsistent with the plaintiff's legal interests because the technical findings did not support a plaintiff-favorable conclusion. The Board affirmed this as wholly ethical conduct.
Forensic Expert Honesty and Integrity in Civil Litigation Obligation
Engineer A was obligated to perform his forensic engineering services with honesty and integrity, refraining from selectively using data to defend the retaining client, and was required to report his findings truthfully even when those findings were adverse to the retaining party's legal interests.
Throughout the duration of his plaintiff-side forensic engagement
Engineer A Forensic Expert Side-Switching Conflict Assessment
Forensic Expert Side-Switching Conflict Assessment Capability
Engineer A possessed — but failed to correctly apply — the capability to assess whether accepting retention by Attorney X (defense) in the same personal injury case in which he had previously been retained by Attorney Z (plaintiff) constituted an impermissible side-switching conflict of interest.
Engineer A was a forensic engineer who had reviewed plaintiff-side materials, reached an adverse conclusion, been terminated, and then accepted retention by the opposing defense attorney in the same personal injury case.
Engineer A's acceptance of the defense retention in the same matter, which the case analysis identifies as ethically impermissible, demonstrates a failure to correctly exercise this capability despite possessing the professional standing to do so.
{'license': 'Professional Engineer (forensic specialist)', 'specialty': 'Engineering and safety analysis', 'termination_status': 'Terminated by Attorney Z with fee paid in full', 'subsequent_engagement': 'Agreed to provide report for Attorney X (defense)'}
Initially retained by plaintiff's attorney (Attorney Z) to provide forensic engineering and safety analysis; determined he could not provide a report favorable to the plaintiff; was terminated with full fee paid; subsequently agreed to provide an independent report for the defendant's attorney (Attorney X) — the paradigm case of switching sides in litigation.
{'type': 'former_client', 'target': 'Attorney Z Plaintiff-Side Retaining Attorney'}
{'type': 'prospective_client', 'target': 'Attorney X Defense Retaining Attorney'}
Forensic Expert Switching Sides Engineer
Attorney X…seeks to retain Engineer A to provide an independent and separate engineering and safety analysis report
Engineer A determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff
He is hired as a consultant by Attorney Z to provide an engineering and safety analysis report and courtroom testimony in support of a plaintiff
Engineer A Forensic Expert Witness Honesty and Integrity in Report Preparation
Forensic Expert Witness Honesty and Integrity in Report Preparation Capability
Engineer A demonstrated the capability for honesty and integrity in forensic report preparation during his plaintiff-side engagement by refusing to prepare a report that would misrepresent his actual findings, even when doing so cost him the engagement.
Engineer A's initial engagement with Attorney Z resulted in an adverse finding that he refused to suppress or misrepresent, demonstrating strong integrity in the report preparation context.
Engineer A's refusal to provide a report favorable to the plaintiff when his analysis indicated the plaintiff was at fault demonstrates correct application of honesty and integrity in report preparation.
Following Engineer A's review and analysis, Engineer A determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff because the results of the report would have to suggest that the plaintiff and not the defendant was at fault in the case.
Engineer A Forensic Expert Witness Objectivity Correctly Applied Initial Engagement
Engineer A correctly applied the forensic expert objectivity obligation during his initial plaintiff-side engagement by producing an analysis report inconsistent with the plaintiff's legal interests when the technical findings did not support a plaintiff-favorable conclusion. The Board commended this conduct.
Forensic Expert Witness Objectivity in Adversarial Proceeding Obligation
Engineer A was obligated to render objective, technically grounded professional opinions based on independent analysis of the facts in his forensic engagement, functioning as an objective expert rather than a partisan advocate for the plaintiff.
we note that in this case, Engineer A developed an analysis report that was inconsistent with the legal interests of the client.
We make this point to underscore the importance of forensic engineers 'calling them as they see them.'
Engineer A Forensic Expert Witness Objectivity Maintenance
Engineer A demonstrated the capability to maintain forensic expert witness objectivity during his initial plaintiff-side engagement, correctly determining that the evidence did not support a report favorable to the plaintiff and refusing to shade his findings to serve the retaining attorney's litigation interests.
During the plaintiff-side engagement, Engineer A reviewed the facts and concluded the plaintiff, not the defendant, was at fault — an adverse finding he refused to suppress even at the cost of his engagement.
Engineer A's determination that he could not provide a report favorable to the plaintiff because the results would have to suggest the plaintiff was at fault — and his acceptance of termination rather than compromising his findings — demonstrates correct application of objectivity maintenance.
Engineer A Former Client Adversarial Proceeding Consent Prerequisite Violation
Engineer A accepted defense retention without obtaining consent from his former client (plaintiff/Attorney Z), in violation of Section III.4.b., which requires consent of former clients before participating in adversarial proceedings involving knowledge gained in prior engagements.
Former Client Adversarial Proceeding Consent Prerequisite Obligation
Engineer A was obligated to obtain the informed consent of the plaintiff and Attorney Z before accepting retention by the defense in the same personal injury matter, given that he had gained specialized forensic knowledge of the plaintiff's case through his prior engagement.
there was nothing in the record to indicate that the engineer was given the consent of his former client, the U.S. government, to represent the interests of the contractor
Before accepting retention by Attorney X
Section III.4.b. is clear in this regard.
Engineer A Former Client Confidentiality Perpetuation Post-Termination
Engineer A had access to the plaintiff's confidential documents, information, and cooperative analytical access during his plaintiff-side engagement. After termination, he accepted defense retention, bringing that confidential knowledge into an adverse engagement.
Engineer A was obligated to continue protecting the plaintiff's confidential information, documents, and facts obtained during his prior engagement even after the termination of his relationship with Attorney Z, and to refrain from using that information in service of the opposing party.
From termination of engagement with Attorney Z through at least the conclusion of the personal injury proceeding
Engineer A Former Client Duty of Trust and Loyalty Duration Assessment
Former Client Duty of Trust and Loyalty Duration Assessment Capability
Engineer A failed to correctly apply the capability to recognize that his duties of trust, loyalty, and confidentiality to Attorney Z and the plaintiff persisted after termination of the engagement, and that those duties barred him from accepting adverse retention in the same matter.
After being terminated and paid in full by Attorney Z, Engineer A treated the engagement as fully concluded without recognizing the ongoing ethical obligations that survived termination.
Engineer A's acceptance of the defense retention without recognizing the persistence of post-termination loyalty and confidentiality obligations to the plaintiff demonstrates a failure to correctly assess the duration of former client duties.
Thereafter, Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case and seeks to retain Engineer A.
Engineer A Independent Report Pledge Non-Cure Recognition Deficit
Engineer A failed to recognize that his agreement to provide a 'separate and independent engineering and safety analysis report' for the defense did not cure the ethical conflict arising from his prior access to plaintiff's confidential information, because he could not realistically segregate that prior knowledge from his subsequent analysis
Engineer A agreed to provide a separate and independent report for Attorney X, apparently believing this pledge resolved the ethical conflict, when in fact it did not
Acceptance of the defense retention with an independence pledge, without recognizing that the pledge could not overcome the cognitive impossibility of starting from 'square one'
Nor do we believe that latter point that Engineer A would be capable of providing a 'separate and independent' report for the defendant in this case.
This Board cannot accept the proposition that following the termination of his relationship with attorney for the plaintiff he would 'blot all' of that information from his mind and start from 'square one' in performing his engineering and safety analysis report.
Engineer A Independent Report Pledge Non-Cure Violation
Engineer A attempted to justify his defense-side engagement by agreeing to provide a separate and independent report. The Board rejected this as an adequate cure, finding that Engineer A could not credibly segregate his prior knowledge from his current analysis.
Independent Report Pledge Non-Cure of Same-Matter Switching Sides Obligation
Engineer A was obligated to recognize that his agreement to provide a 'separate and independent engineering and safety analysis report' for the defense did not cure the ethical conflict created by his prior access to the plaintiff's confidential information in the same matter, and to decline the engagement on that basis.
At the time of accepting defense retention and agreeing to provide an independent report
Nor do we believe that latter point that Engineer A would be capable of providing a 'separate and independent' report for the defendant in this case. (See also Section II.4.b.)
Engineer A Initial Plaintiff-Side Forensic Engagement
From initial retention by Attorney Z through termination of services
Engineer A's retention by Attorney Z as forensic expert for plaintiff
Engineer A's services terminated after findings unfavorable to plaintiff
Engineer A determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff because the results of the report would have to suggest that the plaintiff and not the defendant was at fault
Attorney Z retains Engineer A to provide engineering and safety analysis report and courtroom testimony in support of plaintiff
Engineer A Multi-Party Forensic Prior Relationship Proactive Disclosure
Multi-Party Forensic Prior Relationship Proactive Disclosure Capability
Engineer A failed to proactively disclose to Attorney X the full nature and extent of his prior relationship with Attorney Z and the plaintiff — including the confidential information accessed, the case knowledge gained, and the ethical constraints that prior relationship imposed — before accepting the defense retention.
Attorney X had some knowledge of the termination circumstances, but Engineer A's obligation extended to full proactive disclosure of all material prior relationship facts before accepting the adverse retention.
The case facts indicate Attorney X learned of the circumstances of Engineer A's termination, but there is no indication Engineer A proactively disclosed the full scope of his prior engagement and its ethical implications to Attorney X before agreeing to provide the defense report.
Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case and seeks to retain Engineer A.
Engineer A Opposing Party Retention Motivated by Prior Access
From Attorney X's approach to Engineer A through Engineer A's acceptance of the engagement
Opposing Party Retention Motivated by Prior Access State
Attorney X's retention of Engineer A transparently motivated by Engineer A's prior access to plaintiff's confidential information and the expectation of a favorable report
Board determination that the engagement was impermissible
Attorney X approaching Engineer A after learning of Engineer A's termination by Attorney Z, motivated by the belief that Engineer A would provide a favorable report
Engineer A Pre-Termination Discussion With Attorney Z Deficit
Pre-Termination Ethical Dilemma Disclosure to Original Client Capability
Engineer A failed to fully discuss the ethical dilemma with Attorney Z before allowing his engagement to be terminated in a manner that would lead to his subsequent retention by the opposing party, depriving Attorney Z and the plaintiff of the opportunity to address the conflict
Engineer A's engagement with Attorney Z was terminated — apparently without Engineer A fully discussing the ethical implications with Attorney Z — after which Engineer A accepted retention by Attorney X
Silent termination of the engagement with Attorney Z without the required full discussion of the ethical dilemma, followed by acceptance of defense-side retention
Switching Sides Full Discussion With Original Client Obligation -- Engineer A was obligated to fully discuss his ethical dilemma with Attorney Z before allowing his engagement to be terminated in a manner that would lead to his subsequent retention by the opposing party
Engineer A Pre-Termination Ethical Dilemma Disclosure to Original Client
Engineer A failed to fully discuss his ethical dilemma with Attorney Z before allowing his engagement to be terminated, depriving Attorney Z and the plaintiff of the opportunity to address the conflict and protect their interests before the termination foreclosed those options.
Engineer A reached an adverse conclusion and his services were terminated — the case raises the question of whether he fully discussed the ethical implications with Attorney Z before allowing termination to proceed.
The case facts indicate Engineer A's services were simply terminated and his fee paid in full, with no indication that Engineer A proactively disclosed the full nature of his dilemma and its implications to Attorney Z before the termination occurred.
Engineer A determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff because the results of the report would have to suggest that the plaintiff and not the defendant was at fault in the case.
Engineer A Proceeding-Duration Former Client Loyalty Persistence Obligation Violation
The Board held that Engineer A's duty of trust and loyalty to the plaintiff persisted for at least the duration of the legal proceeding, even after formal termination of his engagement with Attorney Z. This duty was violated by his acceptance of defense retention in the same proceeding.
Proceeding-Duration Former Client Loyalty Persistence Obligation
Engineer A was obligated to maintain a duty of trust and loyalty to the plaintiff as his former client for at least the full duration of the personal injury proceeding, precluding him from accepting adverse retention in the same matter during that period.
For the full duration of the personal injury proceeding in which Engineer A was originally engaged
How long that duty of trust and loyalty must be maintained we are not prepared to state at this time. However, we are certainly willing to state that such a duty exists for the duration of one legal proceeding.
Engineer A Proceeding-Duration Loyalty Persistence Application Deficit
Engineer A failed to apply the principle that his duty of trust and loyalty to the plaintiff as his former client persisted for at least the full duration of the personal injury proceeding, leading him to accept adverse retention by defense counsel while the same proceeding remained active
The personal injury case was still active when Engineer A accepted retention by Attorney X, meaning his loyalty obligations to the plaintiff as former client had not yet been extinguished
Acceptance of defense-side retention in the same ongoing personal injury proceeding, in violation of the proceeding-duration minimum loyalty standard
while Engineer A may not currently have a professional relationship with a former client, he still has an ethical obligation to that client to protect certain confidential information and facts, as well as a certain duty of trust and loyalty.
Engineer A Same-Matter Adversarial Consent Prerequisite Recognition
Same-Matter Adversarial Consent Prerequisite Recognition Capability
Engineer A failed to recognize that accepting retention by Attorney X in the same personal injury case required the informed consent of Attorney Z and the plaintiff before he could permissibly participate on the defense side.
The same personal injury case in which Engineer A had been retained by the plaintiff's attorney was the subject of the defense retention — making this a paradigmatic same-matter scenario requiring consent.
Engineer A's agreement to provide the defense report without obtaining or seeking consent from Attorney Z or the plaintiff demonstrates a failure to recognize the consent prerequisite applicable to same-matter adverse engagement.
Engineer A Same-Matter Adversarial Consent Prerequisite Recognition Deficit
Engineer A failed to recognize that accepting retention by Attorney X in the same personal injury matter required the informed consent of Attorney Z and the plaintiff, and proceeded to accept the defense-side retention without obtaining or seeking such consent
Engineer A accepted retention by Attorney X without obtaining the consent of Attorney Z and the plaintiff, as required by Section III.4.b. of the NSPE Code of Ethics
Acceptance of defense-side retention in the same matter without obtaining the consent of the original client (Attorney Z and the plaintiff), in violation of Section III.4.b.
Citing the provisions of Section III.4.b., we found that there was nothing in the record to indicate that the engineer was given the consent of his former client, the U.S. government, to represent the interests of the contractor in its claim against the government for additional compensation.
Engineer A Services Terminated by Plaintiff Attorney
From termination of services through subsequent cross-side retention
Engineer A's concluded engagement with Attorney Z / plaintiff side
Engineer A agrees to provide report for defendant's attorney (new engagement begins)
Attorney Z terminates Engineer A's services after Engineer A determines he cannot provide a favorable report; fee paid in full
Engineer A Switching Sides Full Discussion With Attorney Z Obligation Violation
Engineer A accepted defense retention without first fully discussing the conflict with Attorney Z (plaintiff's attorney), who was his original retaining client. The Board held this discussion was required at a bare minimum.
Switching Sides Full Discussion With Original Client Obligation
Engineer A was obligated to fully discuss the ethical dilemma with Attorney Z before accepting retention by the defense attorney, so that Attorney Z had the opportunity to address the conflict, provide consent, or otherwise resolve the situation.
Before accepting retention by Attorney X; at the time of or immediately upon being approached by Attorney X
Engineer A Switching Sides Prohibition Violation Same Personal Injury Matter
Engineer A was initially retained by plaintiff's attorney (Attorney Z) to provide forensic engineering and safety analysis. After determining he could not produce a plaintiff-favorable report and being terminated, he accepted retention by the defense attorney (Attorney X) in the same personal injury case.
Switching Sides Forensic Expert Prohibition Obligation
Engineer A was obligated to refrain from accepting retention by Attorney X (defense) in the same personal injury matter in which he had previously been retained by Attorney Z (plaintiff), having gained access to the plaintiff's confidential documents, information, and cooperative analytical access during his prior engagement.
In the present case, the mere fact that Engineer A ceased performing services for Attorney Z would not be an adequate solution to the ethical dilemma at hand.
From the moment Engineer A was approached by Attorney X through the duration of the proceeding
His transgressions were a result of his subsequent involvement with Attorney X.
Engineer A Termination Non-Cure Self-Recognition Deficit
Termination Non-Cure of Same-Matter Adversarial Conflict Self-Recognition Capability
Engineer A failed to recognize that the mere cessation of his services for Attorney Z did not cure the ethical conflict that would arise from accepting retention by Attorney X in the same personal injury matter, because he had already received and processed confidential information from the plaintiff and plaintiff's attorney during his prior engagement
Engineer A's engagement with Attorney Z was terminated, and he subsequently accepted retention by Attorney X in the same matter, apparently treating the termination as resolving the conflict
Acceptance of defense-side retention after termination by plaintiff's counsel, without recognizing that termination did not eliminate the ethical conflict
the fact that Engineer A ceased performing services for Attorney Z does not mitigate the fact that Engineer A throughout his first analysis had access to information, documents, etc., that were made available to him by the plaintiff and plaintiff's attorney in a cooperative and mutually beneficial manner.
Engineer A Termination Non-Cure of Same-Matter Adversarial Conflict Violation
Engineer A's engagement with plaintiff's attorney was terminated before he accepted defense retention. He may have believed termination resolved the conflict. The Board explicitly rejected this reasoning, holding that termination alone was insufficient to cure the structural adversarial conflict.
Termination Non-Cure of Same-Matter Adversarial Conflict Obligation
Engineer A was obligated to recognize that the mere termination of his engagement with Attorney Z did not cure the ethical conflict that would arise from accepting defense retention in the same matter, and to decline the defense engagement accordingly.
From the moment of termination by Attorney Z through the duration of the proceeding
This Board cannot accept the proposition that following the termination of his relationship with attorney for the plaintiff he would 'blot all' of that information from his mind and start from 'square one'
the fact that Engineer A ceased performing services for Attorney Z does not mitigate the fact that Engineer A throughout his first analysis had access to information, documents, etc.
Engineer A Unrelated Matter Adverse Forensic Engagement Permissibility Assessment
Unrelated Matter Adverse Forensic Engagement Permissibility Assessment Capability
Engineer A failed to correctly apply the same-matter versus unrelated-matter distinction when assessing the permissibility of the defense retention — incorrectly treating the defense engagement as if it were a permissible independent engagement rather than recognizing it as same-matter side-switching.
The defense retention concerned the same personal injury case — not an unrelated matter — making the unrelated-matter permissibility exception inapplicable, a distinction Engineer A failed to correctly draw.
Engineer A's agreement to provide what he characterized as an 'independent and separate' report suggests he may have incorrectly applied the unrelated-matter permissibility rule to a same-matter scenario where it does not apply.
Engineer A hired by Attorney Z before Engineer A's review and analysis
Engineer A's access to plaintiff's information during Engineer A's first analysis engagement
Engineer A's duty of trust and loyalty to Attorney Z overlaps Engineer A's engagement with Attorney X
Engineer A's engagement with Attorney Z before Engineer A's engagement with Attorney X
Engineer A's fee paid in full before Attorney X retains Engineer A
Engineer A's review and analysis before Engineer A's services terminated by Attorney Z
Engineer A's services terminated meets Engineer A's fee paid in full
Engineer A's subsequent involvement with Attorney X after Engineer A's termination by Attorney Z
Engineer A's termination by Attorney Z before Engineer A's ethical transgressions
Engineer Non-Advocate Status Demonstrated And Then Undermined By Engineer A
Forensic Expert Non-Advocate Status in Civil Litigation
Engineer A correctly applied the non-advocate principle by refusing to produce a plaintiff-favorable report when technical findings did not support it; however, his subsequent acceptance of the defense engagement — after the defense attorney specifically sought him out because of his adverse findings about the plaintiff — raises concerns that he is being recruited as a de facto defense advocate rather than an independent expert
The defense attorney's specific motivation for retaining Engineer A — knowledge that Engineer A's analysis was adverse to the plaintiff — suggests that the defense is seeking to exploit Engineer A's prior findings rather than obtain truly independent analysis; this instrumentalization of Engineer A's prior work is inconsistent with the non-advocate principle
Engineer Non-Advocate Status in Adversarial Proceedings
The non-advocate principle requires that Engineer A's analysis be genuinely independent — but the circumstances of the defense retention (sought specifically because of prior adverse findings about the plaintiff) make genuine independence structurally impossible
Expert Witness Objectivity — Engineer A Forensic Independence Obligation in Both Engagements
Engineer A correctly applied this constraint in the plaintiff-side engagement by refusing to provide a report favorable to the plaintiff when his analysis indicated plaintiff was at fault — demonstrating proper expert witness objectivity. The constraint also applies to the proposed defense engagement.
Engineer Expert Non-Advocate Independence Constraint
Engineer A was obligated to maintain objectivity and independence as a forensic expert witness in both the plaintiff-side and (had it been permissible) the defense-side engagement — prohibited from functioning as a paid advocate for either party and required to render technically grounded opinions based on independent analysis regardless of which party retained him.
NSPE Code Section II.3.a; NSPE Code Section II.4.b; BER Case No. 76-3; BER Case No. 85-4
Throughout both the plaintiff-side engagement and the proposed defense engagement
Fail to Recognize Irresolvable Conflict (Action 5) → Conflict Of Interest Crystallized (Event 5)
Forensic Engineering Report Integrity Standard
we make this point to underscore the importance of forensic engineers 'calling them as they see them.'
it has sometimes been suggested that engineers who act as paid expert witnesses have an inherent conflict between their duty to tell the truth and their obligation to perform their services consistent with the best interests of the client
Establishes the obligation of forensic engineers to 'call them as they see them' — to report findings objectively regardless of which party is paying their fee, and to avoid acting as a 'hired gun'
N/A — derived from NSPE Code Section II.3.a and BER precedents
Engineer A determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff because the results of the report would have to suggest that the plaintiff and not the defendant was at fault in the case
Engineer A when determining he cannot provide a report favorable to the plaintiff
Governs Engineer A's obligation to produce an accurate, objective, and complete forensic engineering and safety analysis report regardless of which party retained him, and his refusal to produce a report whose conclusions are dictated by client preference
Forensic Expert Hired Gun Prohibition Engineer A Objectivity Affirmation
The Board noted approvingly that Engineer A did not act as a hired gun in his initial plaintiff-side engagement, producing analysis inconsistent with the plaintiff's legal interests — affirming the objectivity standard while condemning his subsequent switching-sides conduct.
Forensic Expert Paid Advocacy Non-Equivalence to Hired Gun Prohibition Constraint
Engineer A was prohibited from functioning as a 'hired gun' for either retaining party — his duty was to 'call them as he saw them' by rendering objective technical analysis regardless of whether the findings aligned with the retaining client's legal interests, as demonstrated by his initial plaintiff-side engagement where he produced analysis inconsistent with the plaintiff's legal interests.
NSPE Code Section II.3.a; BER Case No. 85-4
Engineer A developed an analysis report that was inconsistent with the legal interests of the client
Had Engineer A ceased his involvement in the case following the termination of his relationship with Attorney Z, he would have been acting in a wholly ethical manner
Forensic Expert Non-Advocate Objectivity Demonstrated By Engineer A In Plaintiff Engagement
Plaintiff-side forensic engineering and safety analysis
Faithful Agent Obligation Within Ethical Limits
Engineer A, upon completing his forensic review and analysis, determined that he could not produce a report favorable to the plaintiff because the technical findings implicated the plaintiff rather than the defendant — demonstrating proper non-advocate objectivity in the initial engagement
Engineer A's refusal to produce an advocacy-driven report for the plaintiff is the ethically correct application of the non-advocate principle — he followed the technical evidence to its correct conclusion regardless of the retaining party's interests; however, this same principle is then violated in spirit when he accepts the defense engagement, as his prior exposure makes truly independent analysis impossible
Non-advocate objectivity properly overrode client loyalty in the initial engagement; however, the subsequent defense engagement raises the question of whether 'independent and separate' analysis is achievable given prior exposure to plaintiff's confidential information
Forensic Expert Non-Advocate Status Affirmed for Engineer A
Engineer A's forensic engineering and safety analysis role in the personal injury litigation
The Board affirmed that Engineer A's role as a forensic expert was not to advocate for the retaining attorney's client but to provide objective technical analysis — praising his initial conduct of producing an adverse report and condemning his subsequent acceptance of the opposing party's retention as incompatible with independent forensic analysis
The non-advocate principle cuts in two directions here: it validates Engineer A's initial objectivity (producing an adverse report) and simultaneously condemns his switching sides (because the defense attorney's motivation was to obtain a favorable report, not independent analysis)
it is clear from the facts that the real reason for the defendant's attorney's hiring Engineering A was that he believed Engineer A would provide a report that would be favorable.
The non-advocate principle reinforces that the defense attorney's expectation of a favorable report from Engineer A was itself ethically problematic, and Engineer A's awareness of that expectation compounded his ethical violation
Forensic Expert Witness Objectivity Correctly Applied By Engineer A In Plaintiff Engagement
Engineer A, retained by plaintiff's attorney, determined through his review and analysis that the evidence pointed to plaintiff fault rather than defendant fault, and declined to produce a report favorable to the plaintiff — correctly applying the forensic expert non-advocate objectivity standard.
Engineer A was obligated to render objective, technically grounded professional opinions based on independent analysis of the facts rather than producing a report favorable to the retaining party; he correctly fulfilled this obligation by refusing to produce a plaintiff-favorable report when his analysis indicated the plaintiff was at fault.
Upon completion of forensic review and analysis during the plaintiff-side engagement
Former Client Adversarial Participation Prohibition Invoked Against Engineer A
Engineer A's retention by Attorney X to provide forensic analysis adverse to the plaintiff whose attorney had previously retained him
Engineer A, having gained specialized knowledge of the plaintiff's case through his prior retention, was prohibited from participating as a forensic expert for the defense in the same proceeding without the consent of the plaintiff — the former client whose confidential information he had accessed
The Board applied BER Case 82-6 precedent establishing that an engineer who gains specialized knowledge on behalf of a client cannot subsequently represent adverse interests in the same matter without consent of all interested parties
The prohibition on adverse participation in the same proceeding where specialized knowledge was gained prevailed; the fact that Engineer A was no longer formally retained by plaintiff's attorney did not dissolve the obligation
in BER Case 82-6, this Board ruled that where an engineer is retained by the U.S. government to study the causes of a dam failure, it would be unethical for the engineer to agree to be retained by the contractor involved in the construction of the dam.
Former Client Adversarial Participation Prohibition Triggered By Same-Matter Defense Engagement
Engineer A, having gained specialized forensic knowledge about the personal injury case on behalf of the plaintiff's attorney (former client), accepted an engagement adverse to the plaintiff in the same proceeding without the consent of all interested parties
The specialized knowledge acquired during the plaintiff-side engagement — including the technical findings, case documents, and analytical conclusions — constitutes 'particular specialized knowledge' sufficient to trigger the prohibition on adverse participation in the same matter
The prohibition is fully operative because the adverse engagement is in the same matter (not an unrelated matter), and no consent of all interested parties was obtained — the Absolute Loyalty Prohibition's exception for unrelated matters does not apply here
Former Client Adversarial Proceeding Consent Prerequisite Violated By Engineer A Same Matter Defense Engagement
Engineer A had gained specialized knowledge about the personal injury case — including access to the plaintiff and case documents — while retained by Attorney Z; no consent from Attorney Z or the plaintiff is indicated before Engineer A accepted the defense engagement.
Engineer A was obligated to obtain the informed consent of Attorney Z and the plaintiff before participating in or representing the adverse (defense) interest in the same personal injury proceeding in which he had gained specialized forensic knowledge on behalf of the plaintiff.
Before accepting retention by Attorney X in the same matter
Former Client Confidentiality Perpetuation Obligation Engaged By Engineer A Post-Termination Defense Engagement
Attorney Z transmitted case documents, access to the plaintiff, and strategic case information to Engineer A during the forensic engagement; Engineer A's services were terminated but the confidentiality obligation persisted; accepting the defense engagement created an irresolvable risk of using or being influenced by that confidential information.
Engineer A was obligated to continue protecting the confidential information, documents, and case knowledge transmitted to him by Attorney Z and the plaintiff during the prior engagement, and to refrain from using or leveraging that information in the course of any subsequent defense-side engagement in the same matter.
Ongoing from the moment of termination of the plaintiff-side engagement and throughout any subsequent engagement
Former Client Consent Prerequisite Engineer A Defense Retention Same Matter
Engineer A accepted defense retention without obtaining or seeking consent from plaintiff's Attorney Z, paralleling BER Case 82-6 where an engineer retained by the U.S. government could not represent the opposing contractor without government consent.
Former Client Adversarial Proceeding Consent Prerequisite Constraint
Engineer A was absolutely prohibited from accepting retention by defense Attorney X in the same personal injury proceeding without first obtaining the consent of his former client (plaintiff and Attorney Z), as required by NSPE Code Section III.4.b — and no such consent was obtained or sought.
NSPE Code Section III.4.b; BER Case No. 82-6; BER Case No. 85-4
At a bare minimum, Engineer A should have fully discussed the issue with Attorney Z
Former Client Consent Prerequisite — Engineer A Defense Engagement Without Plaintiff Consent
Engineer A had been retained by plaintiff's attorney, received confidential case information, and was then approached by defendant's attorney without any indication that plaintiff's attorney had consented to the cross-side engagement.
Engineer A was prohibited from accepting retention by Attorney X (defendant) in the same personal injury proceeding without first obtaining the informed consent of Attorney Z and the plaintiff — the former clients from whom he had received confidential information — and the absence of such consent operated as an absolute bar to participation regardless of the new client's framing of the engagement.
NSPE Code Section III.4.b; BER Case No. 85-4; BER Case No. 82-6
At the time Attorney X sought Engineer A's retention and throughout any subsequent participation in the matter
Following Engineer A's review and analysis, Engineer A determines that he cannot provide an engineering and safety analysis report favorable to the plaintiff.
Independent Report Framing Non-Cure Engineer A Defense Engagement
Defense Attorney X framed the new engagement as 'separate and independent'; the Board found this framing insufficient to cure the conflict created by Engineer A's prior plaintiff-side confidential access.
Switching Sides Adversarial Proceeding Confidential Access Bar Constraint
Engineer A's agreement to provide a 'separate and independent engineering and safety analysis report' for the defense did not cure, mitigate, or override the irresolvable conflict of interest created by his prior confidential access to the plaintiff's information — the independence of the analytical process being irrelevant to the ethical bar created by the prior confidential access.
BER Case No. 85-4; NSPE Code Section II.4.b
Nor is the fact that Engineer A has agreed to provide a 'separate and independent engineering and safety analysis report'
At the time of accepting the defense engagement and throughout its duration
we do not believe that Engineer A would be capable of providing a 'separate and independent' report for the defendant in this case
Independent Report Framing Non-Cure — Engineer A Defense Engagement Framed as Separate
The defense attorney specifically framed the new engagement as 'independent and separate' — a framing that BER Case 85-4 explicitly found untenable as a cure for the switching-sides conflict.
Attorney X's framing of the proposed defense engagement as 'an independent and separate engineering and safety analysis report' did not cure, mitigate, or override the irresolvable conflict of interest created by Engineer A's prior confidential access to plaintiff's information — the independence of the analytical process being irrelevant to the ethical bar created by the prior same-matter confidential access.
NSPE Code Section II.4.b; BER Case No. 85-4
At the time Engineer A agreed to provide the report for Attorney X
Insider Knowledge Non-Deployment — Engineer A Plaintiff Case Knowledge in Defense Engagement
Engineer A's prior analytical work for the plaintiff gave him unique insider knowledge of the case's technical vulnerabilities and fault allocation — precisely the knowledge that made him attractive to the defense and that he was prohibited from deploying adversarially.
Insider Knowledge Non-Deployment Against Former Client Constraint
Engineer A was prohibited from deploying the specialized insider knowledge obtained during his plaintiff-side engagement — including his analytical conclusions about fault allocation, the basis for his determination that plaintiff was at fault, and any confidential case strategy — against the plaintiff in the defense engagement, regardless of whether such deployment was intentional or inadvertent.
NSPE Code Section II.4; NSPE Code Section III.4; BER Case No. 85-4
Throughout any defense engagement in the same personal injury matter
Loyalty Principle Invoked for Engineer A Post-Termination Obligations to Plaintiff
Engineer A's post-termination obligations to the plaintiff in the ongoing personal injury litigation
The Board held that Engineer A retained a duty of trust and loyalty to the plaintiff as a former client that survived the formal termination of his engagement — this duty of loyalty, alongside confidentiality, barred him from accepting the opposing party's retention in the same proceeding
Loyalty in the forensic engineering context extends beyond the formal engagement period and encompasses an obligation not to use the trust relationship established during the engagement to the detriment of the former client in the same matter
he still has an ethical obligation to that client to protect certain confidential information and facts, as well as a certain duty of trust and loyalty.
Loyalty to the former client prevailed over Engineer A's autonomy to accept new engagements in the same proceeding
such a duty exists for the duration of one legal proceeding.
Multi-BER-Precedent Conflict Assessment Integration Engineer A Switching Sides
The Board explicitly reviewed and integrated BER Cases 74-2, 76-3, 82-2, and 82-6 before reaching its conclusion regarding Engineer A's conduct, establishing that the cumulative precedent weight governed the outcome.
BER Precedent Multi-Case Conflict Assessment Integration Constraint
The Board's ethical assessment of Engineer A's switching-sides conduct required integration of multiple BER precedents (Cases 74-2, 76-3, 82-2, 82-6) addressing analogous conflict-of-interest arrangements — the cumulative weight of these precedents established the operative ethical standard prohibiting Engineer A's acceptance of the defense engagement.
At the time of the Board's ethical assessment
before this Board examines those several Code provisions, we think it would be appropriate to examine earlier BER decisions relating to the issues present here
National Society of Professional Engineers
Engineer A in determining he cannot provide a report favorable to the plaintiff
Governs Engineer A's obligation to provide honest, objective engineering analysis regardless of which party retained him, and his duty not to issue reports whose conclusions are predetermined by client interest
NSPE Code of Ethics, Section II.1.c — Client Confidentiality
In that case this Board noted Section II.1.c.
Cited in BER Case 82-2 regarding the obligation not to release client information without consent; applied by analogy to Engineer A's duty to protect information obtained from plaintiff's attorney
NSPE Code of Ethics, Section II.3.a — Objectivity in Professional Reports and Statements
with regard to the duty of the engineer to be objective in his professional reports and statements (II.3.a.)
Cited regarding the duty of engineers to be objective in professional reports and statements, particularly in the context of forensic engineers acting as expert witnesses
NSPE Code of Ethics, Section II.4.b — Independence and Impartiality
Referenced in relation to Engineer A's claim of providing a 'separate and independent' report for the defendant, which the Board found untenable given prior access to plaintiff's information
NSPE Code of Ethics, Section III.4.b — Conflict of Interest / Consent of Former Client
Cited as the governing provision prohibiting Engineer A from representing the defendant without consent of the former client (plaintiff's attorney); establishes duty of loyalty to former client
before this Board examines those several Code provisions
the Code of Ethics requires an engineer to endeavor to avoid a conflict of interest
Primary normative authority governing conflict of interest, confidentiality, loyalty, and objectivity obligations of engineers acting as expert witnesses in adversarial proceedings
Non-Deception — Engineer A Implicit Representation of Conflict-Free Status to Defense Attorney
By agreeing to provide an 'independent and separate' report without disclosing the irresolvable conflict created by his prior plaintiff-side engagement, Engineer A implicitly represented a conflict-free status that was ethically untenable.
Engineer A was prohibited from implicitly representing to Attorney X that he was free of conflicts and could ethically provide an independent defense report — when in fact his prior plaintiff-side engagement in the same matter created an irresolvable conflict that barred the engagement — as such implicit representation would constitute a deceptive omission material to Attorney X's and the court's understanding of the integrity of the expert engagement.
NSPE Code non-deception provisions; NSPE Code Section II.4.b; BER Case No. 85-4
At the time Engineer A agreed to provide the defense report
Objectivity Principle Affirmed in Engineer A Forensic Role
Engineer A's initial forensic analysis report prepared for plaintiff's attorney
The Board affirmed that Engineer A's initial conduct — producing an analysis report inconsistent with the plaintiff's legal interests because that was his honest technical conclusion — exemplified proper forensic objectivity, and that engineers must 'call them as they see them' rather than act as hired guns
The Board used Engineer A's initial objectivity as a positive exemplar to underscore the principle that forensic engineers owe objectivity to the technical truth, not to the retaining party's litigation interests — his error was not in his initial objectivity but in his subsequent switching sides
Objectivity is affirmed as the governing standard for forensic engineers; the fact that Engineer A's honest analysis was adverse to his retaining client was praised, not criticized
Engineer A developed an analysis report that was inconsistent with the legal interests of the client. Under the facts, Engineer A did not act in the role as a 'hired gun,' seeking to testify in favor of the client who was paying his fee.
it has sometimes been suggested that engineers who act as paid expert witnesses have an inherent conflict between their duty to tell the truth and their obligation to perform their services consistent with the best interests of the client.
Objectivity Principle Correctly Applied In Initial Engagement Then Compromised By Defense Retention
Forensic engineering and safety analysis in personal injury case
Engineer A demonstrated objectivity by refusing to produce a plaintiff-favorable report when technical findings did not support it; however, accepting the defense engagement after being specifically recruited because of those adverse findings compromises the objectivity of any subsequent analysis
True objectivity in the defense engagement is structurally impossible because Engineer A has already formed analytical conclusions about the case during the plaintiff-side engagement — his subsequent 'independent' analysis for the defense cannot be genuinely independent of his prior exposure
Objectivity requires not just the absence of conscious bias but the structural conditions for independent analysis — conditions that cannot exist when the engineer has already analyzed the same matter for the opposing party
Omit Disclosure to Former Client (Action 4) → Conflict Of Interest Crystallized (Event 5)
Opposing Retention Motivation Constructive Awareness Engineer A Attorney X
Engineer A may have claimed unawareness of Attorney X's strategic motivations; the Board found that the sequence of events created constructive awareness that could not serve as an exculpatory defense.
Post-Termination Adversarial Retention Motivation Awareness Non-Exculpation Constraint
Engineer A could not invoke naivety about Attorney X's motivations as an exculpatory defense — the sequence of events (plaintiff-side retention, confidential access, termination, defense-side approach) created constructive awareness that Attorney X sought his retention precisely because of his prior access to the plaintiff's confidential information and the expectation of a favorable report.
It is clear from the facts that the real reason for the defendant's attorney's hiring Engineering A was that he believed Engineer A would provide a report that would be favorable
At the time of accepting retention by Attorney X
Engineer A had to have been aware of the reasons why his services were being retained by virtue of the sequence of events
Even if Engineer A was so naive as to believe that Attorney X was unaware of the circumstances of his termination, we believe that this would not excuse his actions
Personal Injury Case Adversarial Proceeding Fact Polarization
Throughout the entire case — from initial retention of Engineer A through the cross-side engagement
Adversarial Proceeding Fact Polarization State
The ongoing personal injury litigation between plaintiff and defendant creating structural pressure on retained experts
Personal injury lawsuit initiated, creating adversarial context in which each attorney seeks expert support for their respective client's position
{'relationship_to_engineer': 'Former client in same proceeding', 'confidential_information_shared': True, 'current_status': 'Adverse party in same legal proceeding'}
The plaintiff in the underlying litigation was the original client whose confidential information, documents, and cooperative access were provided to Engineer A during the first engagement. After Engineer A's termination and subsequent retention by the defense, the plaintiff became the adverse party whose confidential information Engineer A could not ethically disregard or compartmentalize.
{'type': 'former_engineer', 'target': 'Engineer A Forensic Expert Switching Sides'}
{'type': 'represented_by', 'target': 'Attorney Z Plaintiff-Side Forensic Retaining Attorney'}
information, documents, etc., that were made available to him by the plaintiff and plaintiff's attorney in a cooperative and mutually beneficial manner
he still has an ethical obligation to that client to protect certain confidential information and facts, as well as a certain duty of trust and loyalty
Post-Termination Confidentiality Perpetuation — Engineer A Holding Plaintiff Confidential Information
Engineer A held confidential information from his plaintiff-side engagement including his analytical conclusions, the basis for his determination that plaintiff was at fault, and case strategy — all of which were directly relevant to and potentially deployable in the defense engagement.
Post-Employment NSPE Code III.4 Adversarial Promotional Confidentiality Tripartite Constraint
Engineer A's duty to protect and refrain from adversarially deploying the confidential information, documents, case strategy, and analytical conclusions obtained during his engagement with Attorney Z persisted beyond the formal termination of that engagement and the payment of his fee — prohibiting him from using or allowing the use of that confidential information in the defense engagement with Attorney X.
NSPE Code Section III.4; NSPE Code Section II.1.c; BER Case No. 82-2; BER Case No. 85-4
From termination of the plaintiff-side engagement through the conclusion of the personal injury litigation
Pre-Acceptance Conflict Screening Engineer A Defense Engagement Failure
Engineer A accepted the defense engagement without conducting adequate pre-acceptance conflict screening that would have identified the same-matter prior engagement as an absolute bar to acceptance.
Expert Witness Engagement Conflict Assessment Pre-Acceptance Constraint
Before accepting retention by defense Attorney X, Engineer A was required to conduct a thorough conflict of interest assessment identifying his prior retention by plaintiff's Attorney Z in the same proceeding, his cooperative access to the plaintiff's confidential information, and the irresolvable conflict created by that prior access — and was prohibited from accepting the defense engagement without completing this assessment.
BER Case No. 85-4; NSPE Code conflict of interest provisions; NSPE Code Section II.4.b
it should have been quite clear to him that a conflict of interest was inevitable
Pre-Acceptance Conflict Screening — Engineer A Defense Retention Without Conflict Assessment
Engineer A agreed to provide the defense report without apparent conflict screening — the facts indicate he accepted the engagement without recognizing or addressing the irresolvable conflict created by his prior plaintiff-side engagement in the same matter.
Engineer A was required to conduct a conflict assessment before accepting retention by Attorney X — specifically to determine whether his prior engagement by Attorney Z in the same matter, and the confidential information he had received during that engagement, created an irresolvable conflict of interest that barred acceptance of the defense engagement.
NSPE Code conflict of interest provisions; BER Case No. 85-4
At the time Attorney X sought to retain Engineer A and before Engineer A agreed to provide the report
Pre-Engagement Conflict Interrogation BER Case 76-3 County Consultant
BER Case 76-3 precedent cited in the present case: engineer serving as paid county consultant accepted engagement as expert witness for private development company before the county board without conducting adequate pre-engagement conflict screening.
Conflict Avoidance Pre-Engagement Interrogation Duty Constraint
In BER Case 76-3, Engineer A was required to conduct sufficient pre-engagement inquiry into the development company's plans before accepting retention — a little interrogation would have revealed the inevitable conflict of interest with his existing county consultant role, and the failure to conduct this inquiry constituted an independent ethical deficiency.
BER Case 76-3; NSPE Code conflict of interest provisions
Before accepting the development company engagement
When Engineer A was approached, while still on retainer to the county, by the development company
it seemed in that case that a little interrogation of the development company concerning its plans would have revealed the conflict of interest
Pre-Termination Ethical Dilemma Discussion Engineer A Attorney Z
Engineer A's engagement with plaintiff's Attorney Z was terminated, after which he accepted retention by defense Attorney X in the same personal injury case without having discussed the ethical implications with Attorney Z.
Pre-Termination Ethical Dilemma Disclosure to Original Client Constraint
Engineer A was required, at a bare minimum, to fully discuss the ethical dilemma with Attorney Z before allowing his engagement to be terminated in a manner that would enable his subsequent retention by the opposing defense attorney in the same proceeding.
BER Case No. 85-4; NSPE Code conflict of interest provisions
Before or at the time of termination of the engagement with Attorney Z
Proceeding-Duration Loyalty Floor Engineer A Same Personal Injury Case
Engineer A was retained by plaintiff's attorney (Attorney Z), gained access to confidential information, was terminated, and then accepted retention by defendant's attorney (Attorney X) in the same active proceeding.
Proceeding-Duration Former Client Loyalty Minimum Floor Constraint
Engineer A's duty of trust and loyalty to the plaintiff and Attorney Z persisted at minimum for the full duration of the personal injury proceeding, absolutely prohibiting him from accepting retention by the defense while the same proceeding remained active, regardless of the formal termination of his engagement with Attorney Z.
BER Case No. 85-4; NSPE Code Section III.4.b
For the full duration of the personal injury legal proceeding
Proceeding-Duration Loyalty Persistence Invoked for Engineer A Post-Termination Obligations
Engineer A's post-termination obligations to the plaintiff during the ongoing personal injury litigation
The Board established that Engineer A's duty of trust and loyalty to the plaintiff — as his former client — persisted for at least the full duration of the personal injury litigation, even though his formal engagement had been terminated, creating a floor below which post-relationship loyalty obligations cannot fall
While the Board declined to specify the outer limit of post-relationship loyalty duration, it established a clear minimum: the duty persists for the duration of the specific proceeding in which the engineer was retained and gained confidential access
The proceeding-duration floor prevailed over the argument that termination of the formal engagement dissolved all loyalty obligations; the Board rejected the 'clean slate' argument while declining to specify how long beyond the proceeding the obligation might extend
Was it ethical for Engineer A to agree to provide a separate engineering and safety analysis report?
Did Engineer A have an obligation to proactively disclose to Attorney Z, before termination, that his findings pointed to plaintiff fault, and to discuss the ethical implications of that situation rather than simply allowing the engagement to be terminated?
Does the fact that Attorney X specifically sought out Engineer A because of his prior plaintiff-side engagement — and the circumstances of his termination — itself constitute an ethically problematic exploitation of a structural conflict, and does Engineer A bear responsibility for recognizing and refusing that motivated retention?
Is the confidential information Engineer A obtained during the plaintiff-side engagement truly segregable from any independent analysis he might conduct for the defense, and if mental segregation is impossible, does that alone bar the defense engagement regardless of Engineer A's stated intent to produce an independent report?
Would Engineer A's acceptance of the defense engagement have been ethical if the personal injury case had fully concluded and no active litigation remained, or does the switching-sides prohibition extend indefinitely to any matter in which Engineer A previously held a confidential plaintiff-side engagement?
Does the Forensic Expert Non-Advocate Objectivity principle — which Engineer A correctly applied by refusing to produce a favorable but inaccurate plaintiff report — conflict with the Switching Sides Prohibition, given that Engineer A's objectivity is precisely what makes him attractive to the defense and yet that same objectivity cannot cure the structural conflict created by accepting the defense engagement?
Does the Confidentiality Duration Indeterminacy principle — which holds that Engineer A's duty to protect plaintiff confidential information persists indefinitely post-termination — conflict with the Absolute Loyalty Prohibition Boundary acknowledgment that Engineer A is not bound by absolute loyalty to the plaintiff, and how should these two principles be reconciled when Engineer A is asked to produce a genuinely independent analysis?
Does the Disclosure Insufficiency for Structural Conflict principle — which holds that Engineer A's pledge to produce an independent report cannot cure the underlying conflict — tension with the Objectivity Principle Affirmed in Engineer A's forensic role, which suggests that a genuinely objective expert should be capable of producing an unbiased analysis regardless of prior engagement history?
Does the Resignation Non-Cure of Structural Adversarial Conflict principle — which holds that Engineer A's termination does not eliminate the ethical bar to defense engagement — conflict with the Former Client Adversarial Participation Prohibition's consent-prerequisite mechanism, which implies that the prohibition could theoretically be lifted by plaintiff consent, thereby suggesting the conflict is not truly absolute but rather consent-dependent?
From a deontological perspective, did Engineer A violate a categorical duty of loyalty to the plaintiff by accepting retention from the defense in the same proceeding, regardless of whether the resulting report would be technically objective?
From a consequentialist perspective, did the harm to the integrity of the adversarial legal proceeding and to the plaintiff's position outweigh any benefit derived from Engineer A providing an ostensibly independent and objective defense-side report?
From a virtue ethics perspective, did Engineer A demonstrate the professional integrity and honesty expected of a forensic engineer when he accepted the defense retention knowing that Attorney X's motivation was precisely his prior access to the plaintiff's confidential case analysis?
From a deontological perspective, did Engineer A breach a duty of confidentiality to the plaintiff that persists indefinitely beyond termination of the engagement, such that any post-termination adverse participation in the same matter constitutes a per se ethical violation irrespective of Engineer A's intent to keep the report independent?
Would Engineer A's acceptance of the defense retention have been ethically permissible if the case had been fully resolved and closed before Attorney X approached him, rather than being an active ongoing proceeding?
Would the ethical outcome have differed if Engineer A had proactively disclosed his prior plaintiff-side engagement to Attorney X before agreeing to the defense retention, and Attorney X had proceeded with full knowledge of that conflict?
What if Engineer A had raised the ethical conflict with Attorney Z before his services were terminated — specifically disclosing that his findings were adverse to the plaintiff and discussing the implications — would that pre-termination disclosure have altered his subsequent ethical obligations regarding the defense retention?
Would Engineer A's conduct have been ethical if Attorney X had sought to retain him for a completely unrelated personal injury case involving different parties and facts, rather than the same proceeding in which he had reviewed confidential plaintiff information?
Resignation Non-Cure of Structural Adversarial Conflict Invoked Against Engineer A Termination Defense
Engineer A's termination of engagement with Attorney Z as a purported cure for the conflict created by accepting retention by Attorney X
Engineer A's termination of his engagement with plaintiff's attorney was held insufficient to cure the ethical conflict created by his prior access to plaintiff's confidential information — the Board rejected the argument that formal disengagement constituted an adequate ethical remedy
The Board distinguished between cases where prior resignation may be an appropriate ethical step (BER Case 76-3) and cases where the prior engagement created such substantive confidential access that resignation cannot neutralize the conflict — finding the present case fell in the latter category
Resignation Non-Cure of Structural Adversarial Conflict Principle
the mere fact that Engineer A ceased performing services for Attorney Z would not be an adequate solution to the ethical dilemma at hand.
The indelibility of prior confidential access prevailed over the formal act of termination; the Board held that Engineer A's cessation of services for Attorney Z was not an adequate solution
In some instances, it has been suggested by this Board that under certain circumstances, it may be appropriate for an engineer to first resign a particular position, such as consultant to a municipality, before agreeing to perform services for a client that might have a conflicting interest. Obviously, the degree to which this may be the proper, ethical course of action is dictated by the particular facts and circumstances of a case.
Retention Motivation Awareness Non-Exculpation — Engineer A Accepting Defense Retention
Attorney X specifically learned of the circumstances of Engineer A's unwillingness to support the plaintiff's case before seeking his retention — making the motivational structure of the new retention transparent and creating constructive awareness of the conflict.
Engineer A could not invoke naivety about Attorney X's motivations as an exculpatory defense for accepting the defense retention — the sequence of events (plaintiff-side retention, confidential access, termination, and opposing-party retention specifically motivated by knowledge of Engineer A's prior access and conclusions) created constructive awareness that the new retention was sought precisely because of Engineer A's prior confidential access to plaintiff's information.
Same-Proceeding Cross-Side Engagement Absolute Prohibition
From the moment Engineer A was approached by Attorney X through the conclusion of the legal proceeding
Same-Proceeding Cross-Side Engagement Prohibition State
The absolute ethical prohibition on Engineer A providing services to the defendant in the same legal proceeding in which he had previously served the plaintiff, regardless of proposed mitigations
Attorney X's approach to retain Engineer A in the same proceeding where Engineer A had previously served the opposing party
Sequential Party Representation Ethics Standard
Attorney X, representing the defendant in the case, learns of the circumstances relating to Engineer A's unwillingness to provide a report in support of Attorney Z's case and seeks to retain Engineer A
Engineer A when deciding whether to accept the engagement from Attorney X
Governs whether Engineer A may ethically accept retention by Attorney X (defendant's counsel) after having been retained and terminated by Attorney Z (plaintiff's counsel) in the same case
Switching Sides Bar — Engineer A Same Personal Injury Case Defense Retention
Engineer A was retained by plaintiff's attorney, conducted confidential review, determined he could not support plaintiff's case, was terminated with fee paid, and was then approached by defendant's attorney who had learned of the circumstances — creating a paradigm switching-sides scenario in the same active litigation.
Engineer A was absolutely prohibited from accepting retention by Attorney X (defendant's counsel) in the same personal injury case in which he had previously been retained by Attorney Z (plaintiff's counsel) and had gained access to confidential information, documents, and case analysis — the prohibition applying regardless of the termination of the original engagement, the payment of his fee, or the framing of the new engagement as 'independent and separate.'
NSPE Code Sections II.4.b and III.4.b; BER Case No. 85-4
From the moment Attorney X sought to retain Engineer A through the conclusion of the personal injury litigation
Switching Sides Full Discussion With Original Client Obligation Violated By Engineer A Pre-Termination
Engineer A determined he could not produce a plaintiff-favorable report and his services were terminated; there is no indication he discussed with Attorney Z the ethical implications of his potential subsequent retention by the defense, depriving Attorney Z of the opportunity to address the conflict or provide consent.
Engineer A was obligated to fully discuss his ethical dilemma with Attorney Z before allowing his engagement to be terminated in a manner that would enable him to be retained by the opposing defense party in the same matter.
Before or at the time of termination of the plaintiff-side engagement
Switching Sides Prohibition Invoked Against Engineer A
Engineer A's acceptance of retention by Attorney X after termination by Attorney Z in the same personal injury proceeding
Engineer A, having been retained by plaintiff's attorney and gained access to plaintiff's confidential documents and information, accepted retention by the defense attorney in the same personal injury litigation after termination of the plaintiff-side engagement — a paradigmatic switching-sides violation
The Board held that Engineer A's prior access to plaintiff's confidential information, documents, and cooperative engagement created an indelible informational relationship that barred him from accepting the opposing party's retention in the same proceeding, regardless of formal termination of the first engagement
The switching-sides prohibition prevailed over Engineer A's autonomy to accept new engagements because the prior confidential access created an irreconcilable structural conflict that termination of the formal relationship could not cure
Switching Sides Prohibition Violated By Engineer A Accepting Defense Retention
Engineer A, having been retained by plaintiff's attorney and having conducted forensic review and analysis in the same personal injury case, accepted retention by the defendant's attorney in the same proceeding after his initial engagement was terminated — constituting a paradigmatic switching-sides violation
The prohibition applies because Engineer A gained access to the plaintiff's confidential case information, documents, and strategic knowledge during the initial engagement; the subsequent defendant-side engagement in the same matter is prohibited regardless of the termination of the initial engagement and full payment of fees
The switching-sides prohibition overrides any argument that termination of the engagement freed Engineer A from further obligations — the confidential information acquired during the plaintiff-side engagement cannot be unlearned and contaminates any purportedly 'independent' analysis for the defense
Switching Sides Prohibition Violated By Engineer A Accepting Defense Retention In Same Personal Injury Case
Engineer A was hired by plaintiff's attorney (Attorney Z) to provide forensic engineering and safety analysis; after determining he could not produce a plaintiff-favorable report, his services were terminated; defense attorney (Attorney X) then sought and obtained Engineer A's agreement to provide an independent report for the defense in the same case.
Engineer A was obligated to refrain from accepting retention by Attorney X (defense) in the same personal injury case in which he had previously been retained by Attorney Z (plaintiff), having gained access to confidential case documents, the plaintiff, and strategic analysis during the prior engagement.
Upon being approached by Attorney X after termination of the plaintiff-side engagement
Termination Circumstances Become Known (Event 4) → Accept Defendant Attorney Retention (Action 3)
Termination Non-Cure Same-Matter Conflict Engineer A Defense Retention
Engineer A argued that cessation of services for Attorney Z resolved the conflict; the Board rejected this argument, finding that prior confidential access creates an irresolvable conflict regardless of termination.
The formal termination of Engineer A's engagement with plaintiff's Attorney Z did not cure, mitigate, or override the irresolvable conflict of interest created by his prior cooperative access to the plaintiff's confidential information, documents, and case materials — absolutely prohibiting him from accepting retention by defense Attorney X in the same personal injury proceeding.
BER Case No. 85-4; NSPE Code Section II.4.b; NSPE Code Section III.4.b
From the moment of termination of the plaintiff-side engagement through the duration of the proceeding
Unrelated Matter Permissibility Boundary — Engineer A Same-Matter Distinguishability
The defense engagement was in the identical personal injury case, not a different matter — distinguishing this situation from cases where an engineer may serve opposing parties in unrelated matters. The same-matter identity is the critical distinguishing factor that activates the absolute bar.
Unrelated Matter Adverse Forensic Engagement Permissibility Constraint
The permissibility exception for adverse forensic engagements in unrelated matters did not apply to Engineer A's situation — because the defense engagement was in the same personal injury case (not an unrelated matter) and involved the same subject matter and confidential information from the prior plaintiff-side engagement — making the unrelated-matter exception inapplicable and the switching-sides prohibition fully operative.
NSPE Code Section II.4; BER Case No. 98-4; BER Case No. 85-4