At-Will Employment Symmetry Competitive Mobility — Engineer X Departure from Firm Y
Engineer X gave two weeks notice and is moving to another firm; her mobility is ethically permissible and the ethical focus of the case is on Engineer Z's conduct, not Engineer X's departure decision
At-Will Employment Symmetry Competitive Mobility Permissibility Constraint
Engineer X's departure from Firm Y to join another firm is ethically permissible under the at-will employment symmetry principle, as there is no indication of a formal non-compete agreement or acquisition of particular specialized knowledge that would restrict her mobility; Engineer X is constrained only by prohibitions on misrepresentation, disparagement, and exploitation of insider knowledge in her post-departure competitive conduct.
NSPE BER Cases 77-11, 79-10, 86-5, 97-2; NSPE Code of Ethics
Engineer X, an associate with the firm, gives two weeks notice of her intent to move to another firm.
At the time of and following Engineer X's departure from Firm Y
NSPE Board of Ethical Review Case Precedents on Firm Personnel and Qualification Misrepresentation
Engineer Z, a principal in Firm Y, continues to distribute a brochure identifying Engineer X as an employee of the firm and list Engineer X on the firm resume
Ethics reviewers and Engineer Z in evaluating obligations
Analogical precedents from the NSPE Board of Ethical Review addressing situations where firm principals misrepresented personnel qualifications or continued to list departed/departing engineers in firm marketing materials
BER83-1 Engineer B Post-Termination Brochure Distribution
From Engineer A's actual termination date through the period Engineer B continued distributing the brochure
Prospective clients of Engineer B's firm
Engineer B distributed a previously printed brochure listing Engineer A as one of Engineer B's key employees, and continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A
Post-Termination Brochure Continued Use State
Engineer B's continued distribution of promotional brochure listing Engineer A as key employee after Engineer A's actual termination
Cessation of brochure distribution or correction of materials (implied by Board ruling)
Engineer B's continued inclusion of Engineer A's name in the brochure constituted an overt misrepresentation of an important fact concerning the overall make-up of the firm
it was unethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination
Engineer A's actual departure from Engineer B's firm following termination notice
BER83-1 Engineer B Pre-Termination Brochure Distribution with Pending Notice
From issuance of termination notice to Engineer A through Engineer A's actual departure
Engineer B distributed the brochure while Engineer A was still employed but had been given a notice of termination
Intent-Differentiated Marketing Misrepresentation Assessment State
Engineer B's distribution of brochure listing Engineer A as key employee during the period after termination notice was given but before actual departure
Engineer A's actual termination from the firm
it was not unethical for Engineer B to distribute a previously printed brochure listing Engineer A as a key employee providing Engineer B apprised the prospective client during negotiation of Engineer A's pending termination
this could easily mislead potential clients into believing that Engineer A, noted as a key employee, would be available in the firm for consultation on future projects
Engineer B issuing termination notice to Engineer A while continuing to distribute brochure
BER 83-1: Engineer B Distributes Brochure During Notice Period
BER 83-1: Engineer B Distributes Brochure During Notice Period → Board Rules on BER 83-1 Notice Period
BER 83-1: Engineer B Distributes Brochure Post-Departure
BER 83-1: Engineer B Distributes Brochure Post-Departure → BER 83-1 Precedent Established
BER 83-1 Factual Distinguishability Non-Automatic Application to Engineer X Case
The Board explicitly distinguished the present case from BER Case 83-1 on the basis of key-employee status, intent, and the significance of the departing engineer's specialty to overall firm services.
Precedent Factual Distinguishability Non-Automatic Application Constraint
The Board was constrained to conduct a rigorous factual comparison between BER Case 83-1 and the present case before applying BER 83-1's violation finding — identifying the key-employee designation, the explicit intent to enhance qualifications, and the knowing post-termination distribution as distinguishing factors that precluded automatic application of BER 83-1's conclusion to Engineer Z and Firm Y.
BER Case 83-1; NSPE Code of Ethics Section II.5.a
Reviewing the facts involved in the present case, we are of the view that the facts while similar, are different in one important area.
Ethics review and precedent application analysis
However, under the facts of the instant case, there is no suggestion that any of the brochures or other promotional material describe Engineer X as a 'key employee' in the firm.
We criticized Engineer B's action and we affirm that criticism.
BER 83-1 Intent-Differentiated Calibration Applied to Engineer Z Firm Y Oversight Finding
The Board found that Engineer Z's conduct appeared more in the manner of oversight without malice or intent, distinguishing it from Engineer B's knowing and purposeful distribution of misleading brochures in BER Case 83-1.
NSPE Board of Ethical Review; Engineer Z
BER Precedent Intent-Differentiated Misrepresentation Severity Calibration Constraint
The Board was constrained to calibrate its violation finding to the degree of intent demonstrated by Engineer Z and Firm Y — distinguishing the clear intentional conduct of Engineer B in BER Case 83-1 (who personally terminated Engineer A and then distributed misleading brochures) from the inadvertent oversight of Engineer Z, and prohibiting mechanical application of the BER 83-1 violation finding to the present case.
In the present case, there does not appear to be the same motive on the part of the principal engineer or the firm to act in a manner which will materially benefit the firm as was so in BER Case 83-1.
Ethics review of Engineer Z and Firm Y's conduct
Here the action by Firm Y and Engineer Z appear more in the manner of an oversight without malice or intent.
While this Board has found that unethical conduct in the past occurred in the absence of intentional actions, we do not consider the facts of this case to be of a nature to make such a finding.
The Board has, in recent years, had occasion to consider a case similar to the instant case. In Case BER 83-1, Engineer A worked for Engineer B.
In BER Case 83-1, a second point which we considered was whether it was the 'intent and purpose' of Engineer B to 'enhance the firm's qualifications and work'
In the BER Case 83-1, Engineer A was highlighted in the firm's promotional brochure as a 'key employee.'
unlike BER Case 83-1 we are reluctant to conclude that the actions of Firm Y and Engineer Z in including the name of Engineer X in the firm's brochure and resume demonstrate an intent to 'enhance the firm's qualifications and work'
NSPE Board of Ethical Review in deliberating the current case
Cited as the primary analogical precedent for evaluating whether Firm Y's continued listing of Engineer X in promotional materials after resignation notice constitutes a misrepresentation of pertinent facts with intent to enhance firm qualifications; the Board distinguishes the present case from BER 83-1 on the basis of 'key employee' designation and intent
BER Case 83-1 precedent ruling before Board analysis of current Engineer X / Engineer Z case
BER Precedent Intent-Differentiated Misrepresentation Severity Calibration — Engineer Z Firm Y Oversight vs. Enhancement
The case facts suggest the continued listing may be characterized as oversight rather than intentional enhancement, given Engineer X's non-key-employee status; intent calibration is essential to the ethical conclusion
Engineer Z (principal of Firm Y) and ethical reviewers
The ethical assessment of Engineer Z's continued distribution of brochures listing Engineer X must be calibrated to the degree of intent demonstrated — distinguishing between conduct that appears to be an oversight without malice (BER Case 90-4 pattern, potentially not a violation) and conduct with clear intent to enhance firm qualifications through misrepresentation (BER Case 83-1 pattern, clear violation); the non-key-employee status of Engineer X and the absence of evidence of intentional enhancement bear on this calibration.
BER Case 83-1; BER Case 90-4; NSPE Code of Ethics Section II.5.a
Engineer Z, a principal in Firm Y, continues to distribute a brochure identifying Engineer X as an employee of the firm and list Engineer X on the firm resume.
Throughout the period of continued brochure distribution after Engineer X's notice and departure
Engineer X is one of a few engineers in Firm Y with expertise in hydrology, but the firm's work in the field of hydrology does not constitute a significant percentage of the firm's work.
Board Finds Oversight Not Violation → Caution Norm Activated
Brochure Personnel Currency Obligation Triggered by Engineer X Departure Notice
Firm Y brochure and resume distributed after Engineer X's departure notice
Non-Prominent Personnel Listing Materiality Exculpation Principle
Notice-Period Brochure Distribution Conditional Permissibility Principle
Upon receiving Engineer X's two-week notice, Firm Y and Engineer Z incurred an obligation to assess whether ongoing brochure distribution required corrective disclosure — particularly for any active client negotiations where Engineer X's hydrology expertise might be a material factor.
The obligation is calibrated to the materiality of the departing engineer's credentials: where hydrology is not a significant practice area and Engineer X is not a key employee, the obligation to affirmatively disclose the pending departure in every distribution is attenuated, though not eliminated for active negotiations.
Engineer Z Oversight-Negligent Firm Marketing Principal Engineer
Brochure Personnel Currency Disclosure During Active Negotiation Obligation
The Board found no violation, implicitly recognizing that the currency obligation is proportional to the materiality of the listed personnel's role in the firm's practice.
Thereafter, Engineer Z, a principal in Firm Y, continues to distribute a brochure identifying Engineer X as an employee of the firm and list Engineer X on the firm resume.
Case-by-Case Pertinence Assessment Distinguishing BER 83-1 from Present Case
The Board systematically compared the present case to BER 83-1, identifying the material factual distinction that Engineer A was highlighted as a key employee while Engineer X was not, and that hydrology was not a significant portion of Firm Y's work.
Engineer Z and Firm Y (and ethics adjudicators)
Case-by-Case Brochure Misrepresentation Pertinence Assessment Obligation
Engineer Z, Firm Y, and the ethics Board were obligated to conduct a case-by-case assessment of the totality of facts — including key-employee status, significance of practice area, and intent — rather than applying a categorical rule derived from BER 83-1, resulting in a principled distinction between the two cases.
At the time of ethics review and adjudication
In the BER Case 83-1, Engineer A was highlighted in the firm's promotional brochure as a 'key employee.' Under the totality of the facts and circumstances of the case, it was apparent that Engineer B's continued inclusion of Engineer A's name in the brochure constituted an overt misrepresentation of an important fact concerning the overall make-up of the firm.
CausalLink_BER 83-1: Engineer B Distribut
CausalLink_Board Finds Oversight Not Viol
CausalLink_Board Rules on BER 83-1 Notice
CausalLink_Board Rules on BER 83-1 Post-D
CausalLink_Engineer Z Continues Brochure
Comparative Case Distinguishing BER 83-1 from Present Case
BER 83-1 precedent vs. present case facts
Pertinent Fact Misrepresentation Intent-and-Purpose Dual-Element Test
The Board systematically compared the present case to BER 83-1, identifying the material factual distinction — Engineer A was highlighted as a 'key employee' while Engineer X was not — and explaining how that distinction altered the ethical obligations applicable to Engineer Z and Firm Y relative to those applicable to Engineer B.
Precedent cases imposing strong ethical obligations do not automatically apply when key distinguishing facts — particularly the prominence and materiality of the listed engineer — are absent.
Engineer Z Credential-Misrepresenting Firm Principal Engineer
Comparative Case Precedent Distinguishing Obligation
The Board affirmed the BER 83-1 ruling as correct on its facts while declining to extend it to the present case due to the absence of the 'key employee' designation and the lack of demonstrated enhancement intent.
It was not unethical for Engineer Z to continue to represent Engineer X as an employee of Firm Y under the circumstances described.
The Board's permissive ruling rests implicitly on a temporal assumption that has no defined outer boundary: that continued brochure distribution during a two-week notice period constitutes an administrative lag rather than an affirmative misrepresentation. However, the Board's reasoning does not establish a precise cutoff after which the 'oversight' characterization expires. The most defensible reading of the Board's logic is that permissibility is coextensive with the notice period itself — meaning that once Engineer X actually departs Firm Y, any continued distribution of materials listing her as a current employee crosses from inadvertent oversight into actionable misrepresentation, regardless of intent. The Board's own caution that inadvertent inaccuracy is 'not condoned' and that expeditious correction is required implicitly establishes that the notice period functions as a grace window, not an indefinite safe harbor. Firms that fail to initiate correction procedures upon receipt of a resignation notice — even for non-key employees — cannot invoke the oversight rationale to excuse post-departure distribution.
The Board's distinction between the present case and BER 83-1 — grounded in Engineer X's non-key status and the non-significant percentage of hydrology work — is analytically sound as a general materiality framework but contains a critical vulnerability when applied to client-specific solicitations. A general promotional brochure distributed to a broad audience carries a lower materiality threshold because no single reader is necessarily seeking hydrology services. By contrast, a firm resume submitted in direct response to a client solicitation for hydrology work transforms Engineer X's listing from a background credential into a primary qualification representation. In that context, Engineer X's departure becomes just as material as Engineer A's departure was in BER 83-1, regardless of her general prominence within Firm Y. The Board's analysis does not distinguish between these two document types, and this omission creates a gap: the permissive ruling applicable to general brochure distribution should not be extended without qualification to targeted resume submissions where the listed engineer's specific expertise is the direct basis for client selection. Engineer Z's obligation to ensure accuracy is correspondingly heightened when the firm resume is deployed in response to a hydrology-specific engagement.
The Board's finding that Engineer Z's conduct was not unethical due to inadvertent oversight creates a structural tension with the proactive accuracy obligations embedded in the same ethical framework. By accepting the absence of malicious intent as a sufficient mitigating factor, the Board's ruling inadvertently rewards firms that maintain no systematic process for updating marketing materials upon personnel changes. A firm that has institutionalized a brochure-update protocol triggered automatically by any resignation notice would never face this ethical question; a firm that has no such protocol benefits from the oversight defense precisely because of its administrative negligence. To prevent this perverse incentive, the Board's permissive ruling should be understood as conditional not merely on the absence of intent to deceive, but also on the firm's demonstrated good-faith effort to initiate correction promptly upon receiving notice. Engineer Z's obligation to deploy low-cost correction mechanisms — such as errata sheets distributed to prospective clients who received the outdated brochure — is not merely aspirational guidance but a substantive condition that, if unmet, would transform the initial oversight into a continuing and culpable misrepresentation. The ethical framework thus demands that Engineer Z treat the notice event as a mandatory trigger for marketing material review, regardless of Engineer X's relative prominence within the firm.
In response to Q101, the Board's 'oversight' finding implicitly establishes a time limit on permissible continued brochure distribution, though it does not articulate a precise deadline. The permissibility of continued distribution appears to rest on two concurrent conditions: first, that the distribution occurs within the active notice period (i.e., before Engineer X has actually departed), and second, that the firm has not yet had a reasonable administrative opportunity to update or recall materials. Once Engineer X actually departs Firm Y, the first condition collapses entirely, and any continued distribution thereafter cannot be characterized as an administrative lag — it becomes an affirmative misrepresentation regardless of intent. Within the notice period itself, the Board's reasoning suggests that permissibility is measured in days, not weeks, and is conditioned on the firm taking expeditious corrective steps. A firm that makes no corrective effort during a two-week notice period cannot claim the full period as a permissible lag; the oversight finding presupposes that correction was being pursued, not deferred indefinitely.
In response to Q102, Engineer X bears an independent ethical obligation that the Board did not explicitly address. Under NSPE Code Section II.5.a, engineers shall not permit misrepresentation of their associates' qualifications — and by symmetry, a departing engineer should not passively permit a former employer to continue misrepresenting her as a current employee. Once Engineer X gives notice and becomes aware (or reasonably should become aware) that Firm Y continues to list her in brochures and on the firm resume, she has an affirmative duty to demand correction. If Firm Y refuses or fails to act within a reasonable period, Engineer X's obligation escalates: she should document her demand in writing and, if the misrepresentation persists and is being used to solicit clients for specialized hydrology engagements she will not fulfill, she may have a duty to notify prospective clients directly or report the continuing misrepresentation to the NSPE. The Board's silence on Engineer X's independent obligations should not be read as absolution; the ethical framework imposes duties on both the firm principal and the departing engineer.
In response to Q103, the Board's reliance on hydrology constituting a non-significant percentage of Firm Y's work as a materiality exculpation may actually invert the protective logic it purports to apply. When a firm's work in a specialty area is rare, prospective clients seeking that specialty are precisely the clients most likely to rely on the listed engineer's availability — and least likely to have independent means of verifying her current employment status. A sophisticated client evaluating a general civil engineering firm for routine work may discount any single listed engineer; a client specifically seeking hydrology expertise from a firm that rarely performs such work will treat the listed hydrologist as a decisive qualification. The non-significance of hydrology to Firm Y's overall portfolio thus heightens, rather than diminishes, the materiality of Engineer X's listing to the subset of prospective clients for whom that listing is relevant. The Board's materiality analysis would have been more rigorous had it distinguished between materiality to the average prospective client and materiality to the targeted prospective client most likely to be harmed.
In response to Q104, the Board's failure to separately evaluate the firm resume as distinct from the general promotional brochure represents a meaningful analytical gap. A general brochure is a passive marketing instrument distributed broadly and not necessarily tied to any specific client engagement. A firm resume, by contrast, is typically submitted in direct response to a client solicitation — a Request for Qualifications or Request for Proposals — and is evaluated by a specific client making a specific selection decision. The materiality threshold for misrepresentation in a firm resume submission is therefore higher than in a general brochure, because the nexus between the listed qualification and the client's reliance is direct and contemporaneous. Listing Engineer X on a firm resume submitted in response to a hydrology-related solicitation after her departure notice is categorically more problematic than listing her in a brochure that happens to be in circulation. The Board should have applied the Pertinent Fact Dual-Element Test separately to each document type, and its permissive ruling may be more defensible as applied to the brochure than as applied to the firm resume.
In response to Q201, the Oversight-Without-Malice Reduced Culpability principle does conflict in a structurally significant way with the Proactive Accuracy Assurance obligation, and the tension is not merely theoretical. By accepting inadvertent oversight as a mitigating factor sufficient to avoid an ethical violation, the Board creates a perverse incentive: firms that invest in systematic processes for updating marketing materials upon receiving departure notices are held to the same standard as firms that maintain no such processes, because both can claim 'oversight' when materials are not updated promptly. A more coherent ethical framework would treat the absence of a systematic correction process as itself a violation of the Proactive Accuracy Assurance obligation, reserving the oversight mitigation only for firms that had adequate processes in place but experienced an isolated failure. The Board's ruling, as written, effectively rewards institutional inattention to marketing accuracy, which undermines the proactive duty that NSPE Code Section II.5.a is designed to enforce.
In response to Q202, the Notice-Period Conditional Permissibility principle and the Brochure Personnel Currency Obligation are not merely in tension — they are logically incompatible if applied simultaneously without a governing priority rule. The Currency Obligation, read strictly, demands immediate updating upon receipt of departure notice; the Conditional Permissibility principle grants a grace period during the notice period. If a prospective client is actually harmed by relying on a stale listing during the notice period — for example, by awarding a hydrology contract to Firm Y on the basis of Engineer X's listed expertise, only to find she will not be available — the Board's permissive ruling provides no remedy and no clear assignment of ethical responsibility. The governing principle in a harm scenario should be the Currency Obligation, not the Conditional Permissibility principle, because the latter was articulated in the absence of demonstrated client harm. The Board's analysis implicitly assumes no prospective client was actually harmed during the notice period, and its permissive ruling should be understood as contingent on that assumption.
In response to Q203, the Non-Prominent Personnel Listing Materiality Exculpation does conflict with the unconditional Honesty Obligation in Engineering Firm Promotional Activities, and the conflict reveals a deeper normative disagreement within the Board's framework. The Honesty Obligation, grounded in NSPE Code Section II.3.a and II.5.a, does not contain a materiality carve-out: engineers shall not permit misrepresentation of their associates' qualifications, full stop. The Materiality Exculpation introduces a consequentialist exception — inaccuracy is excused if it is unlikely to influence a client's decision — that is foreign to the deontological structure of the Code's honesty provisions. While materiality is a legitimate consideration in determining the severity of a violation and the appropriate remedy, it should not function as a threshold below which no violation exists. The Board's ruling, by treating Engineer X's non-prominent status as exculpatory rather than merely mitigating, effectively rewrites the Code's honesty provisions to include an implicit materiality floor that the Code's text does not support.
In response to Q204, the Comparative Case Distinguishing principle — separating the present case from BER 83-1 on the basis of Engineer X's non-key status — does conflict with the Pertinent Fact Dual-Element Test when the test is applied from the perspective of a client specifically seeking hydrology services. The Dual-Element Test asks whether a fact would influence a reasonable client's decision; it does not ask whether the fact would influence the average client across all of the firm's practice areas. A client soliciting hydrology expertise from Firm Y is not the average client — she is precisely the client for whom Engineer X's departure is maximally material, regardless of Engineer X's general prominence within the firm. The Board's key-employee distinction, borrowed from BER 83-1, is a firm-centric measure of prominence that does not map cleanly onto a client-centric materiality analysis. A more rigorous application of the Dual-Element Test would require the Board to ask not 'Is Engineer X a key employee of Firm Y?' but rather 'Would Engineer X's departure be material to a prospective client seeking the specific services Engineer X provides?' — a question that may yield a different answer.
In response to Q301, from a deontological perspective, Engineer Z did not fully satisfy a categorical duty of honesty by continuing to distribute brochures listing Engineer X as a current employee after receiving her resignation notice. Kant's categorical imperative requires that one act only according to maxims that could be universalized without contradiction. The maxim 'A firm may continue to list a departing employee in its marketing materials during the notice period because updating materials is administratively inconvenient' cannot be universalized without producing a world in which marketing materials are systematically unreliable — a result that undermines the very communicative function those materials serve. The Board's intent-based mitigation (oversight rather than deliberate misrepresentation) is a consequentialist consideration that deontological ethics does not recognize as exculpatory: the duty not to misrepresent applies regardless of whether the misrepresentation was intended or whether it caused harm. Engineer Z's conduct, evaluated deontologically, constitutes a breach of the categorical duty of honesty, even if the breach is minor and the appropriate response is correction rather than censure.
In response to Q302, from a consequentialist perspective, the Board's permissive ruling for non-key employees during the notice period is defensible as a rule that produces better aggregate outcomes than a strict immediate-correction requirement — but only under specific empirical assumptions that the Board does not verify. The permissive rule reduces administrative burden on firms, avoids penalizing departing engineers who may not want their departure publicized prematurely, and acknowledges the logistical reality of printed marketing materials. However, these benefits accrue primarily to firms and departing engineers, not to prospective clients. A strict immediate-correction rule would better protect prospective clients from relying on stale credentials, particularly in specialized practice areas. The consequentialist case for the Board's permissive ruling therefore depends on an empirical judgment that client harm from notice-period brochure inaccuracies is rare and low-severity — a judgment the Board asserts but does not demonstrate. If client harm in specialized practice areas is more common than the Board assumes, the aggregate outcome calculus shifts toward the stricter rule.
In response to Q303, from a virtue ethics standpoint, Engineer Z did not demonstrate the professional integrity and diligence expected of a firm principal by failing to proactively update marketing materials upon receiving Engineer X's resignation notice, even if the omission was inadvertent. A virtuous firm principal — one who embodies the character traits of honesty, diligence, and care for clients — would have established and maintained a systematic process for updating marketing materials whenever personnel changes occur. The absence of such a process is not a one-time lapse; it reflects a habitual inattention to the accuracy of the firm's representations to prospective clients. Virtue ethics evaluates conduct not merely by isolated acts but by the character dispositions those acts reveal. Engineer Z's inadvertent oversight, viewed through this lens, reveals a disposition of insufficient diligence regarding marketing accuracy — a disposition that falls short of the professional integrity expected of a firm principal, regardless of whether the specific omission caused harm or constituted a formal ethical violation under the Board's materiality-based analysis.
In response to Q304, from a deontological perspective, the duty imposed by NSPE Code Section II.5.a applies with equal force regardless of whether the misrepresented engineer is a key employee or a non-prominent associate, and the Board's materiality-based distinction between Engineer Z's conduct and Engineer B's conduct in BER 83-1 is ethically unjustifiable as a matter of deontological principle. Section II.5.a does not contain a key-employee exception; it prohibits misrepresentation of associates' qualifications categorically. The Board's distinction between Engineer B's violation and Engineer Z's non-violation rests on a consequentialist materiality judgment — that Engineer X's departure was less likely to influence client decisions than Engineer A's — that is foreign to the deontological structure of the Code provision being applied. A deontologically consistent application of Section II.5.a would find both Engineer B and Engineer Z in violation, with the severity of the violation and the appropriate remedy calibrated by materiality, but the existence of the violation itself determined by the fact of misrepresentation, not by its likely impact.
In response to Q401, the Board would almost certainly have reached a different conclusion if Engineer X's hydrology expertise had constituted a significant and prominently marketed percentage of Firm Y's billable work. The Board's entire distinguishing rationale from BER 83-1 rests on Engineer X's non-key status and the non-significance of hydrology to Firm Y's overall practice. If hydrology were a prominent practice area and Engineer X were one of its primary practitioners, she would be functionally analogous to Engineer A in BER 83-1 — a key employee whose departure is material to prospective clients evaluating the firm's capabilities. Under those facts, continued distribution of brochures listing Engineer X after her departure notice would satisfy both elements of the Pertinent Fact Dual-Element Test: her departure would be a fact that a prospective client would want to know, and it would influence a reasonable client's decision to engage the firm for hydrology work. The Board's permissive ruling is therefore highly fact-sensitive and should not be read as establishing a general rule that notice-period brochure distribution is always permissible for any departing employee.
In response to Q402, the Board's finding of 'not unethical' would not hold if Engineer Z continued distributing the brochure listing Engineer X for several months after Engineer X had actually departed and joined a competing firm. The Board's permissive ruling is explicitly conditioned on the notice period and on the characterization of continued distribution as an inadvertent oversight rather than a deliberate misrepresentation. Once Engineer X has actually departed, the notice-period rationale evaporates entirely, and continued distribution can no longer be characterized as an administrative lag — it becomes a sustained affirmative misrepresentation. The transition from permissible oversight to actionable misrepresentation likely occurs at or very shortly after Engineer X's actual departure date. A period of days post-departure might still be characterized as an administrative lag if correction was actively being pursued; a period of weeks would be difficult to defend; a period of months would constitute a clear violation of Section II.5.a regardless of intent, because the duration itself negates the plausibility of the oversight characterization and demonstrates a failure to meet the expeditious correction obligation the Board itself identifies.
In response to Q403, the ethical analysis would change materially if Engineer X had actively objected to being listed in Firm Y's brochure and resume after giving notice. An active, documented objection by Engineer X would eliminate the 'oversight' characterization entirely: Engineer Z would have been on explicit notice that the listing was inaccurate and that Engineer X herself was demanding correction. Continued distribution after such an objection would constitute a deliberate misrepresentation, not an inadvertent one, and would be directly analogous to the conduct found violative in BER 83-1. Moreover, Engineer X's active objection would trigger her own independent ethical obligation to escalate if Firm Y failed to respond — potentially including notification to prospective clients or the NSPE. The Board's permissive ruling implicitly assumes that Engineer X did not actively object; had she done so, the case would present a fundamentally different ethical posture for both Engineer Z and Engineer X.
In response to Q404, proactive deployment of an errata sheet or written addendum to all prospective clients who received the outdated brochure within days of Engineer X's notice would substantially — though not entirely — resolve the ethical concern arising from continued distribution of the inaccurate brochure. Such corrective action would demonstrate that Firm Y treated the accuracy obligation seriously, took expeditious steps to mitigate any potential client reliance on stale information, and did not allow the oversight to persist. However, the errata sheet would not render the initial continued distribution entirely moot as an ethical concern, because the ethical obligation to maintain accurate marketing materials is ongoing and prospective, not merely remedial. The Board's analysis does implicitly require some form of expeditious corrective action as a condition of its permissive ruling — the ruling is not a blanket endorsement of continued distribution without any corrective obligation. A firm that distributed the inaccurate brochure and took no corrective steps whatsoever, even if the distribution was inadvertent, would be in a weaker ethical position than the Board's ruling contemplates.
The Board resolved the tension between the Honesty Obligation in Engineering Firm Promotional Activities and the Oversight-Without-Malice Reduced Culpability principle by treating intent as a threshold variable rather than a mere mitigating factor. Where continued brochure distribution after a departure notice stems from inadvertent administrative lag rather than deliberate enhancement of the firm's apparent capabilities, the Board declined to treat the resulting inaccuracy as a violation of the unconditional truthfulness norm embedded in Code Section II.5.a. In effect, the Board grafted a mens rea-like element onto what the Code's text frames as a strict-accuracy obligation, subordinating the Proactive Accuracy Assurance norm to the Oversight-Without-Malice principle when the departing engineer is non-key and the notice period is short. This resolution is pragmatically defensible but theoretically unstable: it implicitly rewards firms that lack systematic marketing-update protocols by treating their resulting inaccuracies as mere oversights, thereby creating a structural disincentive to invest in the very proactive accuracy mechanisms the same ethical framework demands. The case therefore teaches that when intent-based and accuracy-based principles collide, the Board prioritizes intent as the dispositive criterion for violation findings while relegating accuracy obligations to a forward-looking corrective duty rather than a backward-looking liability standard.
The Board's application of the Pertinent Fact Dual-Element Test to distinguish the present case from BER 83-1 reveals that the Non-Prominent Personnel Listing Materiality Exculpation and the Comparative Case Distinguishing principle together function as a contextual materiality filter that modulates the otherwise categorical reach of the Honesty Obligation. By anchoring the violation finding in BER 83-1 to Engineer A's key-employee status and Engineer B's post-actual-departure distribution, the Board implicitly established that the Pertinent Fact Dual-Element Test is not applied in the abstract but is calibrated to the realistic decision-making behavior of a reasonable prospective client engaging the firm for its general portfolio of services. This calibration, however, creates a structural blind spot: a prospective client specifically seeking hydrology services — the precise specialty in which Engineer X holds scarce expertise within Firm Y — would find Engineer X's departure just as material as any key employee's departure, regardless of her general prominence within the firm. The Board's materiality analysis thus privileges the perspective of the average generalist client over the perspective of the specialty-seeking client, effectively subordinating the Pertinent Fact Dual-Element Test's case-by-case mandate to a firm-level prominence heuristic. The case teaches that when the Comparative Case Distinguishing principle and the Pertinent Fact Dual-Element Test interact, the Board resolves the tension by adopting a firm-centric rather than client-centric materiality standard, which may systematically underprotect clients with specialized procurement needs.
The interaction between the Notice-Period Conditional Permissibility principle and the Expeditious Correction Obligation reveals that the Board's permissive ruling is not unconditional but is instead temporally bounded by a forward-looking corrective duty. The Board's finding of 'not unethical' for Engineer Z's continued distribution during the notice period implicitly depends on the assumption that Engineer Z will deploy expeditious correction mechanisms — such as errata sheets or updated brochures — within a reasonable period after Engineer X's actual departure. This means the two principles do not genuinely conflict but operate in sequence: Notice-Period Conditional Permissibility governs the pre-departure window, while the Expeditious Correction Obligation governs the post-departure window. The case therefore teaches that the Board resolves apparent conflicts between permissive and corrective principles through temporal compartmentalization rather than hierarchical prioritization. A critical corollary is that the permissive ruling carries an implicit condition subsequent: if Engineer Z fails to correct the brochure expeditiously after Engineer X's actual departure, the initial permissibility of the notice-period distribution does not immunize the subsequent continued distribution, which would then fall squarely within the BER 83-1 prohibition on post-departure key-employee misrepresentation — or, by extension, any post-departure misrepresentation that a reasonable prospective client would find material. The Board's analysis thus implicitly requires proactive corrective action as a condition of its permissive ruling, even though it does not state this condition explicitly.
Should Engineer Z immediately withdraw or correct all brochures and firm resume listings upon receiving Engineer X's resignation notice, or continue distributing existing materials during the notice period while initiating expeditious corrective steps for post-departure distribution?
Engineer Z, a principal in Firm Y, must decide how to handle the firm's existing printed brochures and firm resume that list Engineer X as a current employee after receiving Engineer X's two-week resignation notice. Engineer X is one of few engineers in the firm with hydrology expertise, but hydrology does not constitute a significant percentage of the firm's overall work. The core tension is between the practical reality that printed materials cannot be instantaneously reprinted and the ongoing obligation to ensure marketing materials accurately represent firm personnel.
Continue distributing existing printed brochures and firm resume during the two-week notice period without immediate recall, while simultaneously initiating correction procedures — including preparing errata sheets, updated brochures, and revised resume pages — to be deployed upon Engineer X's actual departure date, and refraining from affirmatively representing Engineer X as available for future project work.
Upon receipt of Engineer X's resignation notice, immediately withdraw all brochures and firm resume submissions listing Engineer X as a current employee, issuing errata sheets or cover letters to all prospective clients who have already received the materials, treating the departure notice as a mandatory trigger for immediate correction regardless of the administrative burden.
Continue distributing existing brochures during the notice period but proactively disclose Engineer X's pending departure to any prospective client who specifically inquires about hydrology capabilities or to whom the firm resume is submitted in response to a hydrology-specific solicitation, treating the disclosure obligation as context-dependent rather than universal.
After Engineer X has actually departed Firm Y, must Engineer Z treat continued distribution of brochures and firm resumes listing Engineer X as a current employee as an actionable misrepresentation requiring immediate corrective action, or may Engineer Z apply a relaxed correction timeline given Engineer X's non-key-employee status and the marginal significance of hydrology to the firm's overall practice?
After Engineer X has actually departed Firm Y and joined a competing firm, Engineer Z must decide what corrective obligations apply to the firm's existing stock of printed brochures and firm resumes that continue to list Engineer X as a current employee. The Board's permissive ruling during the notice period implicitly expires at the moment of actual departure, and the question is whether Engineer Z must treat the post-departure period as categorically different — requiring expeditious correction through errata sheets, reprints, or withdrawal — or whether the non-key-employee status of Engineer X and the non-significance of hydrology to the firm's overall work continue to reduce the urgency and ethical weight of the correction obligation.
Treat Engineer X's actual departure date as the mandatory trigger for immediate deployment of errata sheets, cover letters, or strike-outs to all prospective clients who received the outdated brochure, and initiate reprinting of updated materials, on the grounds that post-departure distribution of materials listing a departed employee cannot be characterized as an administrative lag regardless of that employee's prominence within the firm.
Treat Engineer X's non-key-employee status and the non-significance of hydrology to the firm's overall practice as justifying a relaxed correction timeline — updating materials at the next scheduled reprint cycle rather than deploying immediate errata sheets — on the grounds that the materiality threshold for misrepresentation is lower for non-prominent personnel and the absence of intent to deceive remains a relevant mitigating factor post-departure.
Deploy immediate corrections — errata sheets or verbal disclosures — only in contexts where the firm resume or brochure is submitted in response to a hydrology-specific client solicitation, while allowing the general promotional brochure to remain in circulation until the next scheduled reprint, on the grounds that materiality is context-dependent and the correction obligation is most acute where client reliance on Engineer X's specific expertise is direct and contemporaneous.
Should Engineer Z apply the Pertinent Fact Dual-Element Test uniformly across both the general promotional brochure and the firm resume — treating Engineer X's non-key status as dispositive for both document types — or apply a heightened materiality standard to firm resume submissions made in response to hydrology-specific client solicitations, where Engineer X's listed expertise is the direct basis for client selection?
Engineer Z must evaluate whether the continued listing of Engineer X in Firm Y's brochure and firm resume satisfies both elements of the Pertinent Fact Dual-Element Test under NSPE Code Section II.5.a — specifically whether Engineer X's listing constitutes a pertinent fact clearly and decisively relevant to client selection decisions, and whether the listing was made with intent to enhance firm qualifications beyond what was accurate. This evaluation is complicated by the distinction between general promotional brochures distributed broadly and firm resumes submitted in direct response to specific client solicitations, and by the possibility that a client specifically seeking hydrology services would find Engineer X's departure just as material as a key employee's departure regardless of her general prominence within the firm.
Apply the Pertinent Fact Dual-Element Test uniformly to both the general promotional brochure and the firm resume, treating Engineer X's non-key-employee status and the non-significance of hydrology to the firm's overall practice as dispositive for both document types, and continuing to distribute both without modification during the notice period on the grounds that neither element of the test is clearly satisfied.
Apply the uniform non-key-employee standard to the general promotional brochure while applying a heightened materiality standard to any firm resume submitted in direct response to a hydrology-specific client solicitation — disclosing Engineer X's pending departure or withholding the resume submission until corrected — on the grounds that the direct nexus between Engineer X's listed expertise and the client's selection decision elevates the materiality threshold for that document type regardless of her general prominence within the firm.
Treat Engineer X's status as one of few engineers in the firm with hydrology expertise as sufficient to elevate her to functional key-employee status for brochure-listing purposes — regardless of the non-significant percentage of hydrology work in the firm's overall portfolio — and apply the stricter BER 83-1 standard requiring immediate correction upon receipt of departure notice for both the brochure and the firm resume.
Should Engineer Z immediately cease distributing all marketing materials listing Engineer X upon receiving her resignation notice, or continue distribution during the notice period while initiating expeditious correction procedures, distinguishing the case from BER 83-1 on the basis of Engineer X's non-key status?
Engineer Z's decision about whether to continue distributing firm brochures and resumes listing Engineer X as a current employee after receiving her resignation notice, and how to distinguish the present case from BER 83-1's prohibition on post-departure key-employee misrepresentation.
Continue distributing existing brochures and resumes listing Engineer X during the active notice period, treating the short administrative lag as a permissible oversight, while immediately initiating correction procedures — including errata sheets to prospective clients who received the outdated materials — and ceasing all distribution upon Engineer X's actual departure date.
Immediately withdraw all marketing materials listing Engineer X from active distribution upon receiving her resignation notice, applying a strict currency obligation that treats any post-notice distribution as a misrepresentation regardless of the administrative burden of recalling printed materials or the brevity of the notice period.
Continue distributing general promotional brochures during the notice period under the administrative-lag rationale, but immediately withdraw or annotate firm resumes submitted in direct response to client solicitations — particularly those involving hydrology services — where Engineer X's listed expertise is the direct basis for client selection and the materiality of her departure is heightened.
Departed Engineer Credential Misuse Correction Obligation on Engineer X
Firm Y brochure and resume listing Engineer X after her departure
At-Will Employment Symmetry and Engineer Mobility Right
Engineer X, upon giving notice and departing, bears an affirmative obligation to ensure Firm Y ceases representing her as a current employee in brochures and firm resumes distributed to prospective clients, protecting both her professional reputation and the integrity of the credential-reliance system.
Even though the primary ethical burden falls on Engineer Z/Firm Y, Engineer X is not entirely passive — she has an interest and an obligation to ensure her credentials are not misused after departure.
Engineer X Brochure-Misrepresented Departing Engineer
Departed Engineer Credential Misuse Correction Obligation
Engineer X's obligation is secondary to Firm Y's primary obligation to update materials; however, if Engineer X becomes aware of continued misrepresentation, she should take steps to correct it.
Deregulated Advertising Context Ethics Non-Elimination Applied to Firm Y Promotional Conduct
The Board noted the 'brave new world' of engineering advertising following elimination of advertising proscriptions, establishing that ethical obligations of truthfulness and non-deception remained operative constraints on promotional conduct.
Deregulated Advertising Context Ethics Non-Elimination Constraint
Engineer Z and Firm Y were constrained by the full force of NSPE Code non-deception and truthfulness obligations in their promotional activities, notwithstanding the virtual elimination of legal and ethical proscriptions on engineering advertising — the deregulated environment did not eliminate the ethical obligation to accurately represent firm personnel and qualifications.
NSPE Code of Ethics Section II.5.a; Advertising Ethics Antitrust and Commercial Free Speech Tempering Constraint
With the virtual elimination of legal as well as ethical proscriptions which for many years limited the ability of engineers and other professional groups to advertise, we have entered a 'brave new world' where it often seems, 'anything goes.'
Throughout all promotional activities in the deregulated advertising environment
The Board has, in recent years, had occasion to consider a case similar to the instant case.
Deregulated Engineering Advertising Environment
Ongoing — described as the current state of the profession at the time of the case
the virtual elimination of legal as well as ethical proscriptions which for many years limited the ability of engineers and other professional groups to advertise
Free and Open Competition Legal Framework Active State
The legal and professional environment in which engineering advertising proscriptions have been eliminated, enabling broad promotional activity
Not terminated — persistent regulatory environment state
a majority of engineering practitioners engage in some level of promotional activity in order to increase the visibility and activity of their firm
we have entered a 'brave new world' where it often seems, 'anything goes'
Elimination of legal and ethical proscriptions on engineering advertising
Professional engineering ethics practice
Engineer Departure and Competition Ethics Standard
Engineer X, an associate with the firm, gives two weeks notice of her intent to move to another firm
Engineer Z, a principal in Firm Y, continues to distribute a brochure identifying Engineer X as an employee of the firm
Engineer X (departing associate); Engineer Z (principal, Firm Y)
Provides the ethical framework governing the departure context — Engineer X's two-weeks notice and transition to another firm — and the reciprocal obligations of the firm principal (Engineer Z) during the notice period, including the prohibition on exploiting the departing engineer's continued nominal association for marketing advantage
Engineer A (BER 83-1) Brochure-Misrepresented Departing Engineer
{'status': 'Terminated employee', 'listing_in_brochure': "Listed as 'key employee'", 'case_reference': 'BER 83-1'}
Engineer A was terminated by Engineer B but continued to be listed as a 'key employee' in the firm's promotional brochure both during the notice period and after actual termination, creating a misrepresentation of the firm's available personnel.
{'type': 'employer', 'target': 'Engineer B (BER 83-1) Credential-Misrepresenting Firm Principal Engineer'}
{'type': 'misrepresented_to', 'target': "Prospective Clients of Engineer B's Firm"}
Brochure-Misrepresented Departing Engineer
Engineer B distributed a previously printed brochure listing Engineer A as one of Engineer B's key employees
Engineer A was highlighted in the firm's promotional brochure as a 'key employee'
continued to use the previously printed brochure with Engineer A's name in it well after Engineer B did in fact terminate Engineer A
Engineer A Employment Terminated by Engineer B
From Engineer A's actual termination date onward
Engineer B notified Engineer A that Engineer B was going to terminate Engineer A because of lack of work
Engineer A's post-employment status relative to Engineer B's firm
Not terminated — persistent post-employment state
Engineer B did in fact terminate Engineer A
Engineer B's formal termination of Engineer A following prior notice
Engineer B BER 83-1 Brochure Distribution Intent-and-Purpose — Violation Finding
Brochure Distribution Intent-and-Purpose Evidence Assessment Capability
Engineer B demonstrated the intent-and-purpose element of the violation by knowingly distributing brochures listing Engineer A as a key employee both during the notice period and after actual termination, with full awareness of the termination as the person who initiated it.
BER Case 83-1 — Engineer B's purposeful distribution of misleading brochures listing terminated Engineer A
Engineer B's knowing distribution of brochures listing Engineer A as a key employee after termination, with the Board finding that Engineer B acted with 'intent and purpose' in distributing the misleading brochure
The facts presented in the case demonstrated that Engineer B acted with 'intent and purpose' in distributing the misleading brochure.
Engineer B was well aware of the impending termination of Engineer A as Engineer B was the very person who terminated Engineer A.
Engineer B (BER 83-1) Credential-Misrepresenting Firm Principal Engineer
{'violation_found': 'Yes — distribution after actual termination', 'intent_finding': 'Intent to enhance firm qualifications found', 'case_reference': 'BER 83-1'}
Engineer B terminated Engineer A but continued distributing brochures listing Engineer A as a key employee, both during the notice period and after actual termination, with intent to enhance the firm's qualifications. Found to have acted unethically by continuing distribution after actual termination.
{'type': 'employer_of', 'target': 'Engineer A (BER 83-1) Brochure-Misrepresented Departing Engineer'}
Credential-Misrepresenting Firm Principal Engineer
Engineer B acted with 'intent and purpose' in distributing the misleading brochure
Engineer B BER 83-1 Key-Employee Brochure Listing Materiality — Violation Finding
Key-Employee vs Non-Key-Employee Brochure Listing Materiality Distinction Capability
Engineer B failed to exercise the capability to recognize that listing Engineer A as a key employee after termination constituted a material misrepresentation of pertinent facts, given that Engineer A was specifically designated as a key employee and prospective clients would rely on Engineer A's availability.
BER Case 83-1 — Engineer B continued distributing brochures listing terminated Engineer A as a key employee
Engineer B's continued distribution of brochures listing Engineer A as a key employee after actual termination, resulting in a Board finding that this constituted an overt misrepresentation of an important fact concerning the overall make-up of the firm
it was apparent that Engineer B's continued inclusion of Engineer A's name in the brochure constituted an overt misrepresentation of an important fact concerning the overall make-up of the firm
The Board noted that this could easily mislead potential clients into believing that Engineer A, noted as a key employee, would be available in the firm for consultation on future projects.
Engineer B BER 83-1 Key Employee Misrepresentation Violation
Firm brochure listing Engineer A as key employee post-termination
In BER 83-1, Engineer B's continued distribution of brochures listing Engineer A as a 'key employee' after termination satisfied both elements of the dual test: the 'key employee' designation constituted a pertinent fact misrepresentation, and Engineer B's deliberate distribution after actual knowledge of termination demonstrated intent to enhance the firm's qualifications.
When a departing engineer is prominently designated as a key employee and the firm continues distribution with actual knowledge of departure, both elements of the dual test are satisfied and a violation is established.
The Board concluded that this would be a clear misrepresentation of a pertinent fact with the intent to enhance the firm's qualifications and as such constituted a violation of the Code.
No balancing was available; the conduct unambiguously satisfied both elements of the violation standard.
Engineer B distributed the brochure after Engineer A had left the firm.
the inclusion of the name of Engineer A in the firm's brochure constituted a misrepresentation of 'pertinent facts.'
Engineer B BER 83-1 Notice Period Conditional Permissibility
Brochure distribution during Engineer A's notice period
In BER 83-1, the Board ruled that Engineer B's distribution of previously printed brochures listing Engineer A during the active notice period was not unethical, provided Engineer B apprised prospective clients of Engineer A's pending termination during negotiation.
Continued use of existing printed materials during a notice period is conditionally permissible when accompanied by contemporaneous corrective disclosure of the pending departure.
The Board ruled that it was not unethical for Engineer B to distribute a previously printed brochure listing Engineer A as a key employee providing Engineer B apprised the prospective client during negotiation of Engineer A's pending termination.
The conditional permissibility is resolved by requiring active disclosure during negotiation, preserving honesty while accommodating the practical reality of printed materials.
The Board also ruled that it was unethical for Engineer B to distribute a brochure listing Engineer A as a key employee after Engineer A's actual termination.
Engineer B BER 83-1 Pertinent Fact Dual-Element Test — Key Employee Violation
Pertinent Fact Dual-Element Misrepresentation Test Application Capability
Engineer B lacked or failed to exercise the capability to correctly apply the dual-element test, distributing brochures listing Engineer A as a key employee both during the notice period (without disclosure) and after actual termination — satisfying both elements of the violation test.
BER Case 83-1 — Engineer B terminated Engineer A but continued distributing brochures listing Engineer A as a key employee
Engineer B's distribution of brochures listing Engineer A as a key employee after termination, with knowledge of the termination and intent to enhance firm qualifications — resulting in a Board finding of ethical violation
Engineer B distributing brochure during notice period before Engineer B distributing brochure after Engineer A's actual departure
Engineer B distributing brochure listing Engineer A after Engineer A's actual termination
Engineer B distributing brochure listing Engineer A as key employee during Engineer A's continued employment post-termination notice
Engineer B's awareness of Engineer A's termination before Engineer B distributing misleading brochure
Engineer B's termination notice to Engineer A before Engineer A's continued employment for several additional months
Engineer X At-Will Professional Mobility
Exists throughout Engineer X's employment and through her departure
Engineer X's legal and ethical freedom to depart Firm Y and join another firm
Not terminated; baseline state of professional employment
No written non-compete or restrictive agreement referenced; Engineer X exercises her right to give notice and move to another firm
{'license': 'Professional Engineer (implied by associate role in engineering firm)', 'specialty': 'Hydrology', 'departure_type': 'Voluntary — two weeks notice given', 'seniority': 'Associate'}
Engineer X, an associate with hydrology expertise at Firm Y, gives two weeks notice of intent to move to another firm. After notice is given, Engineer Z continues to list Engineer X in the firm's brochure and resume as a current employee, misrepresenting her status and the firm's available expertise.
{'type': 'employed_by', 'target': 'Firm Y'}
{'type': 'misrepresented_by', 'target': 'Engineer Z Credential-Misrepresenting Firm Principal Engineer'}
{'type': 'supervised_by', 'target': 'Engineer Z'}
Engineer Z continues to distribute a brochure identifying Engineer X as an employee of the firm and list Engineer X on the firm resume
Engineer X Departed Engineer Credential Misuse Correction Obligation — Firm Y Brochure
Engineer X gave two weeks notice and departed to another firm. Firm Y (through Engineer Z) continued to list Engineer X in its brochure and firm resume. Engineer X shares responsibility with Engineer Z for ensuring this misrepresentation is corrected.
Engineer X (departing associate, Firm Y)
Departed Engineer Firm Brochure Credential Misuse Correction Obligation
Engineer X, upon giving two weeks notice of departure from Firm Y, bore an affirmative obligation to take steps to ensure that Firm Y ceased representing her as a current employee in its brochure and firm resume, including notifying Engineer Z of the need to update materials and, if necessary, demanding correction.
From the moment of giving two-week notice through actual departure and beyond if misrepresentation persists
Engineer X Departure from Firm Y — Brochure Not Updated
From Engineer X's departure from Firm Y through the period Firm Y continued using materials listing Engineer X
the inclusion of the name of Engineer X in the firm's brochure and resume would not constitute a misrepresentation of 'pertinent facts'
Negligent Marketing Oversight Without Corrective Action State
Firm Y's continued inclusion of Engineer X's name in brochures and resumes after Engineer X's departure, characterized as oversight rather than intentional misrepresentation
Correction of brochures and resumes (recommended but not yet confirmed as completed)
engineering firms that use printed material as part of their marketing efforts should take reasonable steps to assure that such written matter is as accurate and up-to-date as possible
the action by Firm Y and Engineer Z appear more in the manner of an oversight without malice or intent
the actions of Firm Y and Engineer Z in including the name of Engineer X in the firm's brochure and resume demonstrate an intent to 'enhance the firm's qualifications and work'
we are not condoning the failure of an engineering firm to correct material (brochures, resumes, etc.) which might have the unintentional effect of misleading clients
Engineer X's departure from Firm Y without corresponding update to promotional materials
Engineer X Gives Notice → Notice Period Begins
Engineer X Hydrology Expertise Scarcity in Firm Y
Exists prior to and through Engineer X's departure; becomes acute upon her departure
Clients relying on Firm Y for hydrology services
Engineer X is one of a few engineers in Firm Y with expertise in hydrology
Firm Y's internal distribution of hydrology competence concentrated in Engineer X
Firm Y hiring or developing additional hydrology-qualified personnel
the firm's work in the field of hydrology does not constitute a significant percentage of the firm's work
Engineer X is one of a few engineers in Firm Y with hydrology expertise and is departing
From the moment Engineer X gives two weeks' notice through and beyond her actual departure
Engineer X's employment relationship with Firm Y
Not resolved in the case text; persists as a post-employment state
Engineer X gives two weeks' notice of intent to move to another firm
Engineer X Post-Departure Firm Brochure Personnel Listing Correction Initiation
Post-Departure Firm Brochure Personnel Listing Correction Initiation Capability
Engineer X, upon giving two weeks notice of departure from Firm Y, bore an affirmative obligation to take steps to ensure that Firm Y ceased representing Engineer X in its brochure and resume, requiring the capability to initiate corrective action with Firm Y's principal.
Engineer X's departure from Firm Y and the resulting obligation to ensure brochure correction
Recognition that Engineer X, as the departing engineer, had an obligation to ensure Firm Y corrected its marketing materials upon departure
Engineer X is one of the few engineers in the firm with expertise in the field of hydrology
Engineer X gives two weeks notice of intent to move to another firm
Engineer X Post-Departure Firm Brochure Personnel Listing Correction Initiation — Firm Y Brochure
Engineer X, upon giving two weeks' notice of departure from Firm Y, required the capability to take affirmative steps to ensure that Firm Y's brochures and firm resume were promptly corrected to remove her name and credentials, including directly communicating to Engineer Z the obligation to update materials.
Engineer X gave two weeks' notice of departure; the Board found she bore an affirmative obligation to take steps to ensure Firm Y ceased representing her as a current employee
Recognizing upon giving notice that Firm Y's continued listing of her name in brochures and firm resumes could constitute a misrepresentation and taking steps to ensure correction
Engineer X gives two weeks notice before Engineer Z distributes brochures listing Engineer X as employee
Engineer X's notice period before Engineer X's actual departure
Engineer Z BER Dual-Precedent Brochure Personnel Misrepresentation Spectrum Triangulation — BER 83-1 vs BER 90-4
BER Dual-Precedent Brochure Personnel Misrepresentation Spectrum Triangulation Capability
Engineer Z required the capability to triangulate between BER Case 83-1 (terminated key employee listed post-departure — violation) and BER Case 90-4 (departing non-key engineer listed without highlighting — no violation) to correctly locate the Engineer X scenario on the permissibility spectrum, identifying that Engineer X's non-key status and non-significant practice area aligned the case closer to BER 90-4.
The Board explicitly triangulated between BER 83-1 and BER 90-4 to resolve the Engineer X brochure listing question
Locating the Engineer X brochure listing scenario on the spectrum between the two BER precedents based on key factual distinctions including employee designation, practice area significance, and intent
Engineer Z BER Multi-Precedent Brochure Personnel Misrepresentation Synthesis — Engineer X Case Resolution
BER Multi-Precedent Brochure Personnel Misrepresentation Synthesis Capability
Engineer Z required the capability to retrieve, analyze, and synthesize BER precedent cases addressing engineering firm brochure personnel misrepresentation — specifically BER Case 83-1 (key employee listed post-departure — violation) and BER Case 90-4 (non-key employee listed after departure notice — no violation) — to extract transferable normative principles and apply the synthesized framework to the Engineer X scenario.
The Board synthesized BER 83-1 and BER 90-4 to resolve the Engineer X brochure listing question, applying the dual-element pertinent fact test and totality of circumstances analysis
Synthesizing the dual-precedent framework to recognize that Engineer X's non-key status and non-significant hydrology practice area placed the case within the permissible range during the notice period, while triggering expeditious correction obligations upon actual departure
Engineer Z Brochure Distribution Intent-and-Purpose Evidence Assessment — Engineer X Departure
Engineer Z needed to assess whether the continued distribution of Firm Y's brochure listing Engineer X was motivated by intent to enhance firm qualifications — with the Board finding that the evidence pointed to inadvertent oversight rather than purposeful enhancement.
Ethics analysis of whether Engineer Z's continued brochure distribution satisfied the intent-and-purpose element of the dual-element misrepresentation test
Assessment that Engineer Z's continued listing of Engineer X appeared to be an oversight without malice or intent to enhance firm qualifications, distinguishing it from Engineer B's knowing and purposeful distribution in BER 83-1
we are reluctant to conclude that the actions of Firm Y and Engineer Z in including the name of Engineer X in the firm's brochure and resume demonstrate an intent to 'enhance the firm's qualifications and work'
Engineer Z Brochure Distribution Intent-and-Purpose Evidence Assessment — Engineer X Notice Period
Engineer Z required the capability to assess whether continued distribution of Firm Y's brochure listing Engineer X during and after the notice period was motivated by intent to enhance the firm's qualifications — examining the timing of distribution relative to actual knowledge of Engineer X's departure and the content emphasis of the brochure — as the second required element of the dual-element misrepresentation test.
The Board evaluated intent and purpose as a required element of the misrepresentation analysis for Engineer Z's continued brochure distribution
Evaluating whether the continued brochure distribution after receiving Engineer X's two-week notice was accompanied by intent to enhance firm qualifications or was merely incidental to normal business operations
Engineer Z Brochure Misrepresentation Case-by-Case Pertinence Calibration
Brochure Misrepresentation Case-by-Case Pertinence Calibration Capability
Engineer Z possessed the capability to assess, on a case-by-case basis, whether the continued listing of Engineer X in Firm Y's brochure constituted a misrepresentation of 'pertinent facts' — evaluating that Engineer X was not a key employee, was not highlighted, and that hydrology did not constitute a significant portion of firm services.
Engineer Z continued distributing Firm Y's brochure listing Engineer X after Engineer X gave two weeks notice of departure
Assessment that Engineer X's listing did not constitute a misrepresentation of pertinent facts because Engineer X was not designated as a key employee, was not highlighted, and hydrology was not a significant portion of Firm Y's services
there is no suggestion that any of the brochures or other promotional material describe Engineer X as a 'key employee' in the firm
Nor is there any effort or attempt on the part of Firm Y to highlight the activities or achievements of Engineer X in the field of hydrology
it appears that this area of practice does not constitute a significant portion of the services provided by Firm Y; therefore it would seem to us that the inclusion of the name of Engineer X in the firm's brochure and resume would not constitute a misrepresentation of 'pertinent facts'
Engineer Z Brochure Misrepresentation Case-by-Case Pertinence Calibration — Engineer X Non-Key Hydrology Associate
Engineer Z, as principal of Firm Y, required the capability to assess on a case-by-case basis whether continued listing of Engineer X — a non-key hydrology associate whose specialty did not constitute a significant percentage of firm work — in the firm brochure and resume constituted a misrepresentation of pertinent facts, calibrating corrective obligations proportionately to this assessment.
Engineer Z continued distributing brochures listing Engineer X after receiving two weeks' notice of departure; the Board found this permissible during the notice period given non-key-employee status and non-significant practice area
Evaluating whether Engineer X's departure materially altered Firm Y's qualification profile given that hydrology was not a significant portion of firm work and Engineer X was not designated as a key employee
Engineer Z Brochure Reader Reasonable Expectation Modeling — Engineer X Personnel Listing
Brochure Reader Reasonable Expectation Modeling Capability
Engineer Z required the capability to model the reasonable expectations of prospective clients who read Firm Y's brochure listing Engineer X — specifically, the expectation that listed personnel are currently employed and available for future projects — and to use that modeled expectation as the standard against which the accuracy and potential misleading effect of continued post-departure listings are evaluated.
Prospective clients of Firm Y who received the brochure listing Engineer X reasonably relied on her availability; the Board found that because Engineer X was not highlighted as a key employee, the impact on reasonable client expectations was reduced
Anticipating that prospective clients reading Firm Y's brochure would reasonably expect Engineer X to be currently employed and available, and calibrating corrective obligations accordingly
Engineer Z Case-by-Case Brochure Misrepresentation Pertinence Assessment — Engineer X Departure
The Board's analysis in this case and BER 83-1 establishes that the ethical analysis of brochure personnel listing is fact-specific and not governed by categorical rules; Engineer Z's failure to conduct this assessment and take appropriate corrective action constitutes the violation.
Engineer Z was obligated to conduct a case-by-case assessment of the totality of facts and circumstances surrounding Engineer X's departure — including Engineer X's non-key-employee status, the non-significant percentage of hydrology work, and the absence of highlighting in the brochure — before determining whether continued distribution of the brochure constituted an ethical violation.
Upon receiving Engineer X's two-week notice
Engineer Z Continued Brochure Distribution After Engineer X Notice — Non-Key-Employee Materiality Assessment
Engineer X gave two weeks notice of voluntary departure; Engineer Z continued distributing brochures and firm resume listing Engineer X as an employee. Engineer X was not a key employee and hydrology was not a significant percentage of firm work.
Non-Key-Employee Departed Engineer Brochure Listing Contextual Permissibility Obligation
Engineer Z was obligated to conduct a case-by-case materiality assessment of whether continued distribution of Firm Y's brochure listing Engineer X — a non-key associate whose hydrology expertise does not constitute a significant percentage of firm work — constituted a misrepresentation of a pertinent fact under NSPE Code Section II.5.a, rather than applying a categorical prohibition.
From the moment Engineer X gave two weeks notice through and after actual departure
Engineer Z Continues Brochure Distribution
Engineer Z Continues Brochure Distribution → Brochures Become Inaccurate
{'license': 'Professional Engineer', 'seniority': 'Principal / Firm Controller', 'misconduct': 'Continued distribution of marketing materials listing departed engineer as current staff'}
Engineer Z is the principal who controls Firm Y. After Engineer X gives two weeks notice, Engineer Z continues to distribute brochures and firm resumes that list Engineer X as a current employee, misrepresenting the firm's personnel and hydrology expertise to prospective clients.
{'type': 'controls', 'target': 'Firm Y'}
{'type': 'employer_of', 'target': 'Engineer X Brochure-Misrepresented Departing Engineer'}
{'type': 'misrepresents_to', 'target': 'Prospective Client Brochure-Relying Engineering Services Consumer'}
Firm Y, a medium-sized engineering consulting firm controlled by Engineer Z
Engineer Z Errata Sheet Expeditious Correction Mechanism Deployment — Engineer X Post-Departure Brochure
Errata Sheet Expeditious Correction Mechanism Deployment Capability
Engineer Z required the capability to identify and deploy low-cost, expeditious correction mechanisms — including errata sheets, cover letters, or reprints — upon Engineer X's actual departure from Firm Y, recognizing that the availability of such mechanisms heightened the ethical obligation to act promptly and that failure to employ them would constitute a breach of professional ethics.
The Board found that Engineer Z bore an expeditious correction obligation upon Engineer X's actual departure, with low-cost correction mechanisms available
Recognizing the obligation to insert errata sheets or otherwise correct existing printed brochures listing Engineer X upon her actual departure from Firm Y
Engineer Z Errata Sheet Expeditious Correction Mechanism Deployment — Post-Departure Brochure
Engineer Z was obligated to deploy available low-cost correction mechanisms — including errata sheets, cover letters, strike-outs, and reprints — upon Engineer X's actual departure to correct the inaccuracy in Firm Y's brochure within a reasonable period of time.
Post-departure corrective obligation for Firm Y's brochure listing Engineer X after actual departure
Board guidance that errata sheets, cover letters, strike-outs, and reprints should be employed within a reasonable period of time to correct inaccuracies in printed marketing materials
errata sheets, cover letters, strike-outs and, if necessary, reprints should be employed within a reasonable period of time in order to correct inaccuracies, particularly where a firm has reason to believe that a misunderstanding might occur.
we do believe it is important for firms to take actions to expeditiously correct any false impressions which might exist.
Engineer Z Expeditious Correction Obligation Upon Engineer X Departure Notice
Engineer Z continued to distribute brochures and firm resume listing Engineer X as an employee after receiving notice of departure, without taking corrective action. The non-key-employee status of Engineer X may reduce the urgency but does not eliminate the obligation.
Expeditious Marketing Material Error Correction Upon Actual Knowledge Obligation
Engineer Z, upon receiving Engineer X's two-week notice of departure, acquired actual knowledge that Firm Y's brochure and firm resume would become inaccurate upon Engineer X's departure, triggering an obligation to take expeditious corrective action — including reprinting materials, issuing errata sheets, or withdrawing existing brochures — within a reasonable time after Engineer X's actual departure.
From receipt of two-week notice through and after Engineer X's actual departure date
Engineer Z Firm Marketing Logistical Constraint Ethical Non-Excuse Recognition
Firm Marketing Logistical Constraint Ethical Non-Excuse Recognition Capability
Engineer Z needed to recognize that while the logistical challenges of maintaining accurate printed brochures are real, they do not excuse the firm from its ethical obligation to take expeditious corrective action — and to identify and deploy available low-cost correction mechanisms.
Engineer Z's obligation to correct Firm Y's brochure listing Engineer X despite logistical challenges of printed marketing materials
Board acknowledgment of logistical realities while affirming that firms must still take expeditious corrective action and that failure to do so risks breaching ethical behavior
While we recognize the realities of firm practice and the logistical problems involved in marketing and promotion, we do believe it is important for firms to take actions to expeditiously correct any false impressions which might exist.
Firms that fail to take such measures run the risk of breaching ethical behavior.
Engineer Z Firm Y Inadvertent Inaccuracy Non-Condoning Expeditious Correction Obligation
The Board explicitly stated it was not condoning the failure to correct materials that might unintentionally mislead clients, and directed that expeditious correction was required even absent a violation finding.
Inadvertent Marketing Inaccuracy Non-Condoning Expeditious Correction Constraint
Despite the Board's finding of no violation, Engineer Z and Firm Y were constrained to take expeditious corrective action to eliminate any false impressions created by continued listing of Engineer X in promotional materials — the non-violation finding did not license continued inaccuracy, and failure to correct expeditiously risked escalation to ethical breach.
NSPE Code of Ethics; Board guidance on inadvertent inaccuracy
Having said this, we must make clear that we are not condoning the failure of an engineering firm to correct material (brochures, resumes, etc.) which might have the unintentional effect of misleading clients, potential clients and others.
Post-departure of Engineer X through correction of all promotional materials
We do believe it is important for firms to take actions to expeditiously correct any false impressions which might exist.
Engineer Z Inadvertent Oversight vs. Intentional Misrepresentation Ethical Distinction — Engineer X Case
Inadvertent Oversight vs. Intentional Misrepresentation Ethical Distinction Capability
The Board demonstrated the capability to distinguish Engineer Z's inadvertent oversight (no malicious intent, no purposeful enhancement of qualifications) from Engineer B's intentional misrepresentation in BER 83-1, calibrating the ethical finding to reflect no violation while still requiring corrective action.
Ethics analysis distinguishing Engineer Z's inadvertent brochure inaccuracy from Engineer B's intentional misrepresentation in BER 83-1
Board finding that Engineer Z's actions appeared to be oversight without malice or intent, distinguishing this from cases where unethical conduct occurred without intentional action, and declining to find a violation while still requiring expeditious correction
Engineer Z / NSPE Board of Ethical Review
Engineer Z Key-Employee vs Non-Key-Employee Brochure Listing Materiality Distinction — Engineer X
Engineer Z required the capability to distinguish between the listing of a departed key employee — which constitutes a material misrepresentation — and the listing of Engineer X as a non-key associate whose departure did not materially alter the firm's overall qualification profile, using this distinction to correctly calibrate the ethical obligations arising from continued post-departure brochure listings.
The Board distinguished this case from BER 83-1 (key employee violation) based on Engineer X's non-key status and the non-significant hydrology practice area
Recognizing that Engineer X was not a key employee and that hydrology was not a significant portion of firm work, thereby placing the continued listing in a different ethical category than BER 83-1's key-employee violation
Engineer Z Lists X on Resume → Brochures Become Inaccurate
Engineer Z Marketing Material Ongoing Accuracy Maintenance — Engineer X Personnel Currency
Firm Y's brochure and firm resume listed Engineer X as a current employee. Engineer X's voluntary departure notice created a known future inaccuracy that Engineer Z was obligated to address through timely material updates.
Marketing Material Ongoing Accuracy and Currency Maintenance Obligation
Engineer Z, as principal of Firm Y, bore an ongoing obligation to maintain accurate and current marketing materials, including the firm brochure and firm resume; Engineer X's two-week notice constituted a concrete trigger event requiring Engineer Z to plan and execute updates to those materials to reflect Engineer X's pending and then actual departure.
Continuous obligation; specifically triggered upon receipt of Engineer X's departure notice
Engineer Z Marketing Material Ongoing Accuracy and Currency Maintenance — Engineer X Personnel Currency
Marketing Material Accuracy and Currency Maintenance Capability
Engineer Z, as principal of Firm Y, required the capability to maintain accurate and current marketing materials — including the firm brochure and resume — recognizing that upon Engineer X's actual departure, the obligation to update materials became immediate and that continued distribution without correction would constitute a breach of professional ethics.
Engineer Z continued distributing brochures listing Engineer X after receiving notice of departure; the Board found an expeditious correction obligation arose upon actual departure
Maintaining awareness of Engineer X's employment status and the obligation to update brochures and firm resumes upon actual departure, including deploying expeditious correction mechanisms such as errata sheets
{'intent_finding': 'No intent to enhance qualifications found — oversight', 'violation_found': 'No — but cautioned to correct materials', 'case_reference': 'Instant case'}
Engineer Z is the principal engineer of Firm Y who allowed Engineer X's name to remain in the firm's brochure and resume after Engineer X's departure. The Board found this to be an oversight without malice or intent rather than a deliberate misrepresentation, but cautioned that firms must take reasonable steps to correct such inaccuracies.
{'type': 'firm_principal_of', 'target': 'Firm Y'}
{'type': 'former_employer_of', 'target': 'Engineer X Brochure-Misrepresented Departing Engineer'}
{'type': 'service_provider_to', 'target': 'Prospective Clients of Firm Y'}
Oversight-Negligent Firm Marketing Principal Engineer
the actions of Firm Y and Engineer Z in including the name of Engineer X in the firm's brochure and resume
Engineer Z Pertinent Fact Dual-Element Misrepresentation Test Application — Engineer X Brochure
Engineer Z was required to apply the two-part test for Section II.5.a violations — assessing both whether Engineer X's listing constituted a misrepresentation of pertinent facts AND whether the distribution was motivated by intent to enhance firm qualifications — recognizing that both elements must be present for a violation.
Ethics analysis of Firm Y's continued brochure distribution listing Engineer X after departure notice
Application of the dual-element test resulting in a finding that neither element was clearly satisfied in the Engineer X case, distinguishing it from BER 83-1 where both elements were present
We determined whether (1) Engineer B in fact misrepresented 'pertinent facts' and (2) whether it was the intent and purpose of Engineer B to 'enhance the firm's qualifications and work.' We noted that both factors must be present for a violation of Section II.5.a to exist.
Engineer Z Pertinent Fact Dual-Element Misrepresentation Test Application — Engineer X Brochure Listing
Engineer Z required the capability to apply the two-part pertinent fact test — assessing (1) whether Engineer X's listing concerned pertinent facts given non-key status and non-significant practice area, and (2) whether distribution was motivated by intent to enhance firm qualifications — to determine whether continued brochure distribution violated NSPE Code Section II.5.a.
The Board applied the pertinent fact dual-element test from BER 83-1 and BER 90-4 to evaluate Engineer Z's continued brochure distribution after Engineer X's notice of departure
Applying the dual-element test to conclude that continued distribution during the notice period was conditionally permissible given the totality of circumstances, while recognizing that post-departure continuation would require expeditious correction
Engineer Z Pertinent Fact Dual-Element Test Application to Engineer X Brochure Listing
Because Engineer X was not a key employee and hydrology was not a significant percentage of firm work, the Board's analysis suggests the first element (pertinence) may not be fully satisfied, potentially rendering continued distribution during the notice period conditionally permissible.
Pertinent Fact Dual-Element Misrepresentation Test Compliance Obligation
Engineer Z was obligated to evaluate whether the continued listing of Engineer X in Firm Y's brochure and firm resume satisfied both elements of the pertinent-fact misrepresentation test: (1) whether Engineer X's listing constituted a pertinent fact clearly and decisively relevant to client selection decisions, and (2) whether the listing was made with intent to enhance firm qualifications beyond what was accurate — and to refrain from distribution if both elements were satisfied.
Upon receiving Engineer X's two-week notice and throughout the period of continued brochure distribution
Engineer Z Post-Notice-Period Non-Key-Employee Brochure Listing Expeditious Correction — Engineer X
Engineer Z continued distributing brochures and firm resume listing Engineer X after Engineer X's actual departure. Even if the notice-period distribution was conditionally permissible given Engineer X's non-key status, post-departure continued distribution without correction constitutes a violation.
Post-Notice-Period Non-Key-Employee Brochure Listing Expeditious Correction Obligation
Engineer Z was obligated, upon Engineer X's actual departure from Firm Y, to take expeditious corrective action to remove Engineer X from the firm's brochure and firm resume, using low-cost mechanisms such as errata sheets or reprinting, so that prospective clients would not be misled about current firm personnel.
Upon Engineer X's actual departure from Firm Y
Engineer Z Voluntary Resignation Notice-Period Non-Key-Employee Brochure Conditional Permissibility Assessment
Engineer X voluntarily resigned with two weeks notice. Engineer Z continued distributing brochures and firm resume. The non-key-employee status and non-significant hydrology percentage are the critical facts that distinguish this case from BER 83-1 (where Engineer A was a key employee) and condition the permissibility analysis.
Voluntary Resignation Notice-Period Non-Key-Employee Brochure Listing Conditional Permissibility Obligation
Engineer Z was obligated to recognize that continued distribution of Firm Y's existing printed brochures listing Engineer X during the two-week notice period was conditionally permissible — given Engineer X's non-key-employee status and the non-significant percentage of hydrology work — provided Engineer Z did not affirmatively represent Engineer X as available for future work and took expeditious corrective steps upon actual departure.
During the two-week notice period; obligation to correct arises upon actual departure
Errata Sheet Reasonable Period Deployment Constraint Applied to Firm Y Brochures
The Board articulated specific correction mechanisms — errata sheets, cover letters, strike-outs, reprints — as the required response to discovered inaccuracies in printed promotional materials, establishing a reasonable-period deadline for their deployment.
Errata Sheet Reasonable Period Correction Deployment Constraint
Engineer Z and Firm Y were constrained to deploy errata sheets, cover letters, strike-outs, or reprints within a reasonable period of time to correct the inaccurate listing of Engineer X in promotional materials, particularly given that the firm had reason to believe a misunderstanding might occur; failure to deploy these low-cost mechanisms within a reasonable period risked ethical breach.
NSPE Code of Ethics; Board guidance on marketing material correction
In the case of marketing brochures and other similar materials, errata sheets, cover letters, strike-outs and, if necessary, reprints should be employed within a reasonable period of time in order to correct inaccuracies, particularly where a firm has reason to believe that a misunderstanding might occur.
Within a reasonable period following Engineer X's departure from Firm Y
Errata Sheet Utilization Obligation for Firm Y Printed Brochures
The Board acknowledged the logistical realities of firm marketing practice but emphasized that low-cost correction mechanisms eliminate the logistical excuse for inaction.
Errata Sheet Low-Cost Correction Mechanism Utilization Obligation
Engineer Z and Firm Y were obligated to employ available low-cost correction mechanisms — including errata sheets, cover letters, strike-outs, or reprints — rather than treating logistical difficulty or printing costs as justification for continued distribution of brochures listing Engineer X after departure.
Within a reasonable period of time after Engineer X's departure
Expeditious Correction Obligation Triggered Upon Engineer X Departure
Firm Y brochure and resume listing Engineer X after departure notice and after departure
Engineer Z has actual knowledge of Engineer X's departure from the moment notice is given; this triggers an obligation to take expeditious corrective action on the brochure and firm resume, even if the failure to do so during the notice period does not independently constitute a violation given Engineer X's non-prominent status.
Actual knowledge of the inaccuracy (departure notice) triggers the correction obligation; continued inaction after Engineer X's actual departure is a more serious concern than inaction during the notice period.
Expeditious Correction Obligation Upon Actual Knowledge of Marketing Material Inaccuracy
The Board's no-violation finding for the notice period does not eliminate the expeditious correction obligation post-departure; the principle recommends correction as best practice even absent a formal violation.
Expeditious Correction Obligation for Firm Y Marketing Materials
Firm Y brochure and resume containing Engineer X's name post-departure
Oversight-Without-Malice Reduced Culpability Principle
Despite not finding a violation, the Board emphasized that Firm Y and Engineer Z remained obligated to take expeditious corrective action — including errata sheets, cover letters, strike-outs, or reprints — to correct the false impression created by Engineer X's continued listing, and that failure to do so would risk breaching ethical behavior.
Even where original inclusion was inadvertent and non-violative, once the firm is aware of the potential for misunderstanding, an affirmative obligation to correct arises and continued inaction risks ethical breach.
we must make clear that we are not condoning the failure of an engineering firm to correct material (brochures, resumes, etc.) which might have the unintentional effect of misleading clients, potential clients and others.
The reduced culpability for the original oversight does not eliminate the forward-looking corrective obligation; the two principles operate on different temporal axes.
Expeditious Correction Obligation for Firm Y Post-Departure Marketing Materials
The Board found no violation but emphasized that Firm Y and Engineer Z were not condoned in allowing inaccurate materials to persist; the non-key status of Engineer X reduced urgency but did not eliminate the correction obligation.
Despite not finding a violation, Engineer Z and Firm Y remained obligated to take expeditious corrective action — including errata sheets, cover letters, strike-outs, or reprints — to correct any false impressions created by continued listing of Engineer X in promotional materials after Engineer X's actual departure.
we are not condoning the failure of an engineering firm to correct material (brochures, resumes, etc.) which might have the unintentional effect of misleading clients, potential clients and others.
errata sheets, cover letters, strike-outs and, if necessary, reprints should be employed within a reasonable period of time in order to correct inaccuracies
Firm Y Brochure Continued Listing of Departed Engineer X
From the point Engineer Z continues distributing the brochure after Engineer X's notice, persisting indefinitely until corrected
Prospective clients relying on firm qualifications
Firm Y's promotional materials and firm resume listing Engineer X as a current employee after her departure notice
Not resolved in the case text; would terminate upon correction of the brochure and firm resume
Engineer Z continues to distribute a brochure identifying Engineer X as an employee and lists her on the firm resume after she has given notice of departure
Firm Y Intent Assessment — Oversight vs. Enhancement
From Engineer X's departure through Board's ethical assessment
Ethical evaluation of Firm Y and Engineer Z's conduct in retaining Engineer X's name in promotional materials, turning on whether intent to enhance qualifications was present
Board's ruling distinguishing the current case from BER 83-1 on intent grounds
both factors must be present for a violation of Section II.5.a to exist
there does not appear to be the same motive on the part of the principal engineer or the firm to act in a manner which will materially benefit the firm as was so in BER Case 83-1
Discovery that Firm Y's brochures and resumes continued to list Engineer X after departure
Firm Y Marketing Material Accuracy and Currency Maintenance — Engineer X Personnel Listing
Firm Y and Engineer Z bore an ongoing obligation to maintain accurate and current marketing materials, including the firm brochure and resume, requiring proactive steps to ensure personnel listings reflected current firm composition.
Ongoing marketing material accuracy obligation for Firm Y's brochure and resume listing Engineer X
Board statement that engineering firms using printed materials should take reasonable steps to ensure such written matter is as accurate and up-to-date as possible
engineering firms that use printed material as part of their marketing efforts should take reasonable steps to assure that such written matter is as accurate and up-to-date as possible.
Honesty Obligation Invoked Against Engineer Z Brochure Distribution
Firm Y brochure and resume listing Engineer X post-notice
Practical constraints of reprinting marketing materials
Engineer Z's continued distribution of brochures listing Engineer X as a current employee after receiving two weeks notice implicates the fundamental honesty obligation — the brochure creates a false impression of current employment status.
Honesty requires that representations about firm personnel reflect actual current employment relationships, not stale or soon-to-be-outdated ones.
Because Engineer X's specialty is not a significant percentage of firm work and she is not highlighted as a key employee, the Board found the honesty violation threshold was not met — the listing was not pertinent enough to be decisively misleading.
Honesty Obligation in Engineering Firm Promotional Activities
Engineering firm promotional brochures and resumes listing personnel
Logistical realities of firm marketing practice
The Board's entire analysis of both BER 83-1 and the present case is grounded in the honesty obligation applicable to engineering firms' promotional activities, requiring that brochures and resumes not create false impressions about the personnel available to serve prospective clients.
Honesty in the promotional context requires that marketing materials not mislead prospective clients about the composition and capabilities of the firm, whether through deliberate misrepresentation or inadvertent inaccuracy.
Honesty is the foundational obligation; logistical realities and inadvertent oversight may mitigate culpability but do not eliminate the underlying duty to be accurate.
Hydrology Scarcity Non-Key-Employee Brochure Listing Proportionality — Engineer X Firm Y
The internal scarcity of hydrology expertise within Firm Y does not automatically make Engineer X's departure a pertinent fact of clear and decisive relevance to prospective clients if hydrology is not a significant part of firm work
Hydrology Scarcity Non-Key-Employee Brochure Listing Proportionality Constraint
Although Engineer X is one of a few engineers in Firm Y with hydrology expertise, making that expertise scarce within the firm, Engineer Z is constrained from treating this internal scarcity as automatically elevating Engineer X to key-employee status for brochure-listing purposes, because hydrology does not constitute a significant percentage of the firm's work; the proportionality constraint requires that the ethical analysis weight client-facing materiality of the expertise over internal scarcity.
NSPE Code of Ethics Section II.5.a; BER Case 83-1
During and after the two-week notice period
Intent-and-Purpose Non-Satisfaction Non-Violation Recognition for Engineer Z Firm Y
The Board distinguished the present case from BER 83-1 by finding that the oversight-without-malice character of Engineer Z's conduct, combined with Engineer X's non-key status, meant both elements of the dual test were not satisfied.
Ethics Board adjudicating Engineer Z and Firm Y conduct
Intent-and-Purpose Dual-Element Non-Satisfaction Non-Violation Recognition Obligation
The Board was obligated to recognize that because the facts of the present case failed to satisfy both elements of the pertinent-fact misrepresentation test — Engineer X was not a key employee (element 1 not clearly satisfied) and there was no demonstrable intent to enhance firm qualifications (element 2 not satisfied) — no violation of NSPE Code Section II.5.a existed, even though corrective action remained advisable.
we are reluctant to conclude that the actions of Firm Y and Engineer Z in including the name of Engineer X in the firm's brochure and resume demonstrate an intent to 'enhance the firm's qualifications and work.'
Key Employee Brochure Listing Violation by Engineer B in BER 83-1
Engineer B terminated Engineer A but continued distributing brochures listing Engineer A as a key employee both during the notice period (without disclosure to prospective clients) and after actual termination.
Key Employee Brochure Listing Prospective Client Reliance Non-Misleading Obligation
Engineer B was obligated to refrain from distributing brochures listing Engineer A as a key employee after Engineer A's actual termination, as this constituted a misrepresentation of a pertinent fact with intent to enhance firm qualifications, violating NSPE Code Section II.5.a.
During the notice period (without client disclosure) and after actual termination
Key Employee Status Materiality Threshold Applied to Engineer X Departure
Unlike BER Case 83-1 where Engineer A was explicitly listed as a key employee, Engineer X was not designated as a key employee in Firm Y's promotional materials, triggering a different analytical framework.
Key Employee Status Materiality Threshold Brochure Listing Constraint
Engineer Z and Firm Y were constrained to assess whether Engineer X's departure triggered the heightened key-employee prohibition or the more contextual non-key-employee materiality assessment; the absence of any 'key employee' designation or highlighting of Engineer X's hydrology expertise in promotional materials constrained the analysis to the less restrictive non-key-employee framework.
NSPE Code of Ethics Section II.5.a; BER Case 83-1 distinguished
In BER Case 83-1, Engineer A was highlighted in the firm's promotional brochure as a 'key employee.' Under the totality of the facts and circumstances of the case, it was apparent that Engineer B's continued inclusion of Engineer A's name in the brochure constituted an overt misrepresentation of an important fact concerning the overall make-up of the firm.
Upon Engineer X's notice of departure and through post-departure brochure distribution
Nor is there any effort or attempt on the part of Firm Y to highlight the activities or achievements of Engineer X in the field of hydrology.
Logistical Difficulty Non-Excuse Marketing Correction Applied to Firm Y Brochure Correction Obligation
The Board acknowledged the realities of firm practice and logistical problems in marketing but explicitly stated these did not excuse failure to expeditiously correct false impressions.
Logistical Difficulty Non-Excuse for Marketing Correction Delay Constraint
Engineer Z and Firm Y were constrained from using the logistical difficulties of brochure distribution, printing costs, or administrative burden as justifications for delaying correction of the inaccurate listing of Engineer X — the availability of low-cost correction mechanisms eliminated any logistical excuse for indefinite delay.
Following Engineer X's departure from Firm Y
In the case of marketing brochures and other similar materials, errata sheets, cover letters, strike-outs and, if necessary, reprints should be employed within a reasonable period of time in order to correct inaccuracies.
Logistical Difficulty Non-Excuse for Marketing Correction Delay — Engineer Z Firm Y Brochure
The practical reality of pre-printed brochures does not excuse indefinite delay in correction; proportionate mechanisms must be deployed expeditiously
Engineer Z cannot rely on the logistical difficulty or cost of reprinting Firm Y's brochures as a justification for indefinitely continuing to distribute materials listing Engineer X as a current employee after her departure; Engineer Z is constrained to deploy available low-cost correction mechanisms such as errata sheets, cover letters, or strike-outs within a reasonable period.
NSPE Code of Ethics Section II.5.a; BER Case 83-1; BER Case 90-4
From the date of Engineer X's actual departure from Firm Y onward
Low-Cost Correction Mechanism Proportional Deployment — Engineer Z Firm Y Engineer X Departure
Given that Engineer X is a non-key employee (hydrology not a significant percentage of firm work), proportionate low-cost correction mechanisms may suffice rather than full reprinting
Low-Cost Correction Mechanism Proportional Deployment Constraint
Engineer Z is constrained to deploy available low-cost correction mechanisms — including errata sheets, cover letters noting Engineer X's departure, or strike-outs on existing brochures — within a reasonable period after Engineer X's departure, rather than continuing to distribute uncorrected materials; the proportionality of the correction mechanism must match the materiality of the misrepresentation.
NSPE Code of Ethics Section II.5.a; BER Case 90-4
the firm's work in the field of hydrology does not constitute a significant percentage of the firm's work.
Marketing Communication Currency Obligation Applied to Firm Y Post-Departure
Firm Y brochure and firm resume listing Engineer X
Firm Y bears an ongoing obligation to maintain accurate, current marketing materials; Engineer X's departure creates a concrete trigger event requiring the firm to update its brochure and resume to remove Engineer X's name once her employment ends.
The obligation is ongoing and not discharged by accuracy at initial publication; Engineer X's departure notice is a material change requiring update. However, the non-prominence of Engineer X's role affects the urgency and the violation threshold.
Marketing Communication Currency and Accuracy Maintenance Obligation
While the currency obligation exists, the Board's finding of no violation reflects that the obligation's breach threshold is higher when the listed engineer is not a key employee in a significant practice area.
Marketing Material Accuracy Correction Standard (BER Guidance)
NSPE BER Guidance on Engineering Firm Marketing Material Correction Obligations
Marketing Material Accuracy Correction Standard
we believe engineering firms that use printed material as part of their marketing efforts should take reasonable steps to assure that such written matter is as accurate and up-to-date as possible
Firms that fail to take such measures run the risk of breaching ethical behavior
errata sheets, cover letters, strike-outs and, if necessary, reprints should be employed within a reasonable period of time in order to correct inaccuracies, particularly where a firm has reason to believe that a misunderstanding might occur
NSPE Board of Ethical Review as affirmative guidance to engineering firms using printed promotional materials
Articulated by the Board as a normative standard for how engineering firms must handle discovered inaccuracies in promotional brochures and resumes, specifying remediation mechanisms and the ethical risk of inaction
Marketing Material Accuracy and Currency Maintenance Applied to Firm Y Personnel Listings
The Board articulated a general standard that engineering firms using printed materials must take reasonable steps to ensure accuracy and currency, applicable to Firm Y's continued distribution of brochures listing Engineer X after her departure.
Marketing Material Accuracy and Currency Maintenance Constraint
Engineer Z and Firm Y were constrained by an ongoing obligation to maintain accurate and current marketing materials — including brochures and firm resumes listing personnel — requiring reasonable proactive steps to ensure accuracy and prohibiting continued use of materials known to be inaccurate without correction.
NSPE Code of Ethics; Board guidance on printed marketing material accuracy
We believe engineering firms that use printed material as part of their marketing efforts should take reasonable steps to assure that such written matter is as accurate and up-to-date as possible.
Ongoing throughout firm marketing activities; heightened upon Engineer X's departure notice
Marketing Material Accuracy and Currency Maintenance — Engineer Z Firm Y Brochure Post-Notice
Engineer Z continued distributing brochures listing Engineer X without correction after receiving notice; the ongoing accuracy maintenance obligation required expeditious corrective action
Engineer Z bears an ongoing obligation to maintain accurate and current marketing materials for Firm Y, including the firm brochure and firm resume; upon receiving Engineer X's two-week notice of departure, Engineer Z acquired actual knowledge that these materials would become inaccurate, triggering the obligation to plan and execute expeditious correction.
From the date of Engineer X's notice of departure onward, with heightened urgency post-departure
Misrepresentation in Business Dealings Standard
Governs Engineer Z's prohibition against making false or misleading statements about firm personnel status in commercial marketing materials distributed to prospective clients after Engineer X has given notice of departure
National Society of Professional Engineers
Engineer Z (principal, Firm Y); Engineer X (departing associate)
Primary normative authority governing Engineer Z's obligation not to misrepresent firm personnel and qualifications after Engineer X has given notice of departure
NSPE BER Advertising Ethics BER Precedent Corpus Navigation — BER 83-1 Retrieval and Application
Advertising Ethics BER Precedent Corpus Navigation Capability
The NSPE BER demonstrated the capability to navigate the BER precedent corpus on advertising ethics, retrieving BER Case 83-1 as the controlling precedent for brochure personnel misrepresentation and applying it to the present case through careful factual distinction.
Ethics analysis of Firm Y's continued brochure distribution listing Engineer X, using BER 83-1 as the primary precedent
Retrieval and detailed analysis of BER Case 83-1 as the primary precedent for evaluating the ethics of continued brochure distribution listing a departed engineer, followed by careful factual distinction to reach a different conclusion in the present case
In Case BER 83-1, Engineer A worked for Engineer B.
NSPE BER Advertising Ethics Historical Evolution Awareness — Brave New World Context
Advertising Ethics Historical Evolution Awareness Capability
The NSPE BER demonstrated awareness of the historical evolution of engineering advertising ethics — from strict proscriptions to a liberalized environment — and applied this context to understand why truthfulness and non-deception standards are now more important than ever in the post-liberalization 'brave new world.'
Contextual framing of the brochure personnel misrepresentation case within the broader evolution of engineering advertising ethics
Board's framing of the case within the context of the explosion of promotional activities following the elimination of legal and ethical proscriptions on engineering advertising
In recent years, the engineering profession much in the same manner as the legal and medical professions, has seen a virtual explosion of activities on the part of individual practitioners as well as firms to heighten their level of recognition in the eyes of prospective clients.
NSPE BER Brochure Personnel Misrepresentation Spectrum Triangulation — BER 83-1 vs Present Case
The NSPE BER demonstrated the capability to triangulate between BER Case 83-1 (key employee listed post-termination with intent — violation) and the present case (non-key employee listed without highlighting or intent — no violation) to correctly locate the present case on the permissible side of the spectrum.
Ethics review of Firm Y's continued brochure distribution listing Engineer X after departure notice
Detailed factual comparison identifying that Engineer X was not a key employee, was not highlighted, hydrology was not a significant firm service area, and there was no evident intent to enhance qualifications — distinguishing the present case from BER 83-1
NSPE Code of Ethics for Engineers, Section II.5.a
Interpreting the meaning of Section II.5.a, we noted that the words 'pertinent facts' are those facts that have a clear and decisive relevance to a matter at hand.
NSPE Board of Ethical Review in analyzing the ethical obligations of Firm Y and Engineer Z
The specific code provision interpreted by the Board to determine whether Firm Y's inclusion of Engineer X's name in promotional materials constitutes misrepresentation of 'pertinent facts' with 'intent and purpose' to enhance firm qualifications; both elements must be present for a violation
Non-Key-Employee Brochure Listing Contextual Permissibility Applied to Engineer X
Engineer X was not highlighted as a key employee in Firm Y's brochure; hydrology was not a significant portion of Firm Y's services; Engineer X was not the only engineer with hydrology expertise at the firm.
Engineer Z and Firm Y were obligated to assess whether continued listing of Engineer X — a non-key employee whose area of expertise did not constitute a significant portion of firm services — constituted a misrepresentation of pertinent facts; the Board found that the non-key status and non-significant practice area meant continued listing did not constitute an overt misrepresentation.
there is no suggestion that any of the brochures or other promotional material describe Engineer X as a 'key employee' in the firm.
During the two-week notice period and period of continued brochure distribution after departure
Engineer X is not the only engineer in the firm who possesses such expertise.
this area of practice does not constitute a significant portion of the services provided by Firm Y; therefore it would seem to us that the inclusion of the name of Engineer X in the firms's brochure and resume would not constitute a misrepresentation of 'pertinent facts.'
Non-Key-Employee Departure Brochure Listing Materiality Threshold — Engineer X Hydrology Non-Significant Percentage
The non-significant hydrology work percentage is the critical factual distinction that may prevent automatic application of the key-employee brochure prohibition and requires a proportionality and materiality assessment
Non-Key-Employee Departure Brochure Listing Materiality Threshold Constraint
Because Engineer X's hydrology expertise does not constitute a significant percentage of Firm Y's work, Engineer Z's continued listing of Engineer X in firm brochures and resumes during the notice period does not automatically constitute a misrepresentation of pertinent facts of clear and decisive relevance; Engineer Z is constrained to conduct a case-by-case materiality assessment rather than automatically applying the stricter key-employee prohibition, while still being required to correct the listing expeditiously after departure.
During the two-week notice period and immediately following Engineer X's actual departure
Non-Principal Employee Departure Competitive Conduct Proportionality — Engineer X Associate Status
Engineer X is described as an 'associate with the firm' rather than a principal or partner, which calibrates the goodwill-preservation obligations applicable to her departure
Non-Principal Employee Departure Competitive Conduct Proportionality Constraint
As an associate (non-principal) of Firm Y, Engineer X is held to a somewhat less stringent standard regarding goodwill-preservation obligations owed to Firm Y upon departure, while remaining fully subject to prohibitions on misrepresentation, disparagement, and exploitation of specialized knowledge; Engineer X's associate status is a relevant mitigating factor in assessing the ethical permissibility of her post-departure competitive conduct.
Non-Prominent Personnel Listing Materiality Exculpation Applied to Engineer X Listing
Firm Y brochure and resume listing Engineer X after departure notice
Because Engineer X's hydrology expertise does not constitute a significant percentage of Firm Y's work and Engineer X is not highlighted as a key employee in the brochure, the continued listing does not meet the pertinent-fact threshold required for an ethical violation — the listing is insufficiently material to decisively affect prospective client selection decisions.
The principle calibrates ethical culpability to the degree of reliance the listing is likely to induce; incidental listing of a non-key engineer in a non-significant specialty area falls below the violation threshold.
The materiality exculpation does not eliminate the recommendation to update materials; it merely determines that the failure to do so immediately does not constitute an ethics code violation in this specific factual configuration.
Non-Prominent Personnel Listing Materiality Exculpation for Engineer X
Firm Y brochure and resume listing Engineer X post-departure
The Board applied the materiality exculpation principle to find that Engineer X's listing in Firm Y's brochure and resume — where Engineer X was not highlighted as a key employee, hydrology was not a significant portion of Firm Y's services, and Engineer X was not the sole hydrology expert — did not constitute a misrepresentation of pertinent facts sufficient to establish an ethical violation.
Where a departing engineer appears incidentally in a general personnel list without prominent designation and their specialty is not central to the firm's practice, the materiality threshold for pertinent fact misrepresentation is not crossed.
the inclusion of the name of Engineer X in the firms's brochure and resume would not constitute a misrepresentation of 'pertinent facts.'
The low materiality of Engineer X's listing, combined with the absence of enhancement intent, collectively precluded a violation finding.
Notice-Period Brochure Personnel Prospective Client Appraisal — Engineer Z Engineer X Departure
Engineer Z continued distributing brochures listing Engineer X after receiving two weeks notice; during this notice period, passive distribution without disclosure of pending departure may constitute misrepresentation if Engineer X is a key employee
Notice-Period Brochure Personnel Prospective Client Appraisal Constraint
During the two-week notice period after Engineer X gave notice of departure, Engineer Z is constrained — if continuing to distribute brochures listing Engineer X — to affirmatively apprise each prospective client of Engineer X's pending departure so that the client can make an informed qualification assessment, rather than passively distributing materials implying Engineer X's continued availability.
During the two-week notice period between Engineer X's notice of departure and actual departure
Thereafter, Engineer Z, a principal in Firm Y, continues to distribute a brochure identifying Engineer X as an employee of the firm.
Notice-Period Conditional Permissibility Applied to Firm Y Brochure Distribution
Firm Y brochure distributed during Engineer X's two-week notice period
Firm Y's continued distribution of existing brochures listing Engineer X during the two-week notice period is conditionally permissible because Engineer X is not a key employee in a significant practice area, and there is no evidence of intent to enhance firm qualifications through the listing.
The two-week notice period is brief; the practical impossibility of immediate reprinting, combined with the non-pertinence of Engineer X's specialty, renders the continued distribution during this period conditionally permissible rather than violative.
Permissibility during the notice period is conditioned on non-prominence and non-pertinence; the firm remains obligated to update materials promptly after Engineer X's actual departure.
Notice-Period Key Employee Pending Departure Prospective Client Appraisal Applied to BER 83-1 Engineer B
The Board in BER Case 83-1 ruled that distribution of brochures listing Engineer A as a key employee during the notice period was permissible only if Engineer B apprised prospective clients of the pending termination during negotiation.
Engineer B was constrained, during the period after Engineer A received termination notice but before actual departure, to apprise each prospective client during negotiation of Engineer A's pending termination when distributing brochures listing Engineer A as a key employee — passive distribution without such disclosure constituted a misrepresentation of pertinent facts.
During the period after Engineer A's termination notice through Engineer A's actual departure
Omission Materiality Threshold Applied to Firm Y Non-Disclosure of Engineer X Departure
Firm Y brochure distributions to prospective clients after Engineer X's departure notice
Firm Y's failure to proactively disclose Engineer X's pending departure in every brochure distribution does not constitute an unethical omission because Engineer X's hydrology specialty is not material — it would not have affected the decision-making of prospective clients who are not specifically seeking hydrology services.
The materiality threshold for omission-based disclosure obligations is calibrated to whether the omitted information would affect client selection decisions; non-significant specialty areas fall below this threshold.
Omission Materiality Threshold in Professional Disclosure
Non-materiality of Engineer X's specialty means the omission of departure disclosure does not independently generate an ethics violation, though disclosure remains best practice.
Oversight-Without-Malice Non-Condoning Inadvertent Inaccuracy Correction for Firm Y
The Board explicitly stated it was not condoning the failure to correct materials that might unintentionally mislead clients, even while declining to find a violation based on the absence of intent and the non-key status of Engineer X.
Inadvertent Brochure Inaccuracy Non-Condoning Expeditious Correction Obligation
Although the Board found that Engineer Z and Firm Y's continued listing of Engineer X reflected inadvertent oversight without malicious intent — reducing culpability for the original inaccuracy — Engineer Z and Firm Y remained obligated to take expeditious corrective action, as the absence of malicious intent does not excuse continued distribution of materials that may mislead prospective clients.
From the point of actual knowledge of the inaccuracy (Engineer X's departure notice) onward
Oversight-Without-Malice Reduced Culpability for Engineer Z and Firm Y
The Board found that Engineer Z and Firm Y's continued listing of Engineer X after departure reflected inadvertent oversight without malicious intent or deliberate purpose to enhance qualifications, and therefore did not rise to the level of an ethical violation, distinguishing the conduct from the deliberate misrepresentation in BER 83-1.
Inadvertent oversight without malice or enhancement intent places conduct below the ethical violation threshold, though it does not eliminate the duty to correct inaccuracies expeditiously.
The absence of malice and enhancement intent, combined with the non-pertinent-fact status of Engineer X's listing, collectively precluded a violation finding, while the Board still urged expeditious corrective action.
Pertinent Fact Dual-Element Misrepresentation Test — Engineer Z Brochure Listing Engineer X
The dual-element test is the operative analytical framework for determining whether Engineer Z's conduct constitutes an ethical violation; the non-key-employee status of Engineer X (hydrology not a significant percentage of firm work) affects the pertinent-fact element
Pertinent Fact Dual-Element Misrepresentation Prohibition Constraint
Engineer Z's continued listing of Engineer X in Firm Y's brochure and firm resume must be evaluated against both elements of the pertinent-fact misrepresentation test: (1) whether Engineer X's departure constitutes a pertinent fact of clear and decisive relevance to prospective clients, and (2) whether Engineer Z's continued distribution was done with intent and purpose to enhance firm qualifications — with the non-significant hydrology work percentage bearing on element (1) and the absence of corrective action bearing on element (2).
Pertinent Fact Dual-Element Test Applied to Engineer X Firm Y Brochure Listing
Engineer X gave two weeks notice of departure from Firm Y; Firm Y continued to list Engineer X in brochures and firm resume; Board applied the dual-element test and found neither element satisfied under the totality of circumstances.
Engineer Z and Firm Y were constrained by the requirement that both elements of the pertinent-fact misrepresentation test — (1) actual misrepresentation of facts of clear and decisive relevance, and (2) intent and purpose to enhance firm qualifications — must be present before a violation of Section II.5.a could be found; the absence of either element precluded a violation finding.
During and after Engineer X's two-week notice period through post-departure brochure distribution
it would seem to us that the inclusion of the name of Engineer X in the firm's brochure and resume would not constitute a misrepresentation of 'pertinent facts.'
Pertinent Fact Dual-Element Test Applied to Engineer X Listing
Firm Y brochure and resume listing Engineer X after departure
The Board applied the two-element test to Engineer Z's continued listing of Engineer X in Firm Y's brochure and resume after departure, finding that neither element was satisfied: Engineer X was not highlighted as a key employee (no pertinent fact misrepresentation), and the conduct appeared to be oversight without intent to enhance qualifications.
Both elements — pertinent fact misrepresentation AND intent to enhance — must be present simultaneously for a violation; the absence of either negates the ethical violation.
We noted that both factors must be present for a violation of Section II.5.a to exist.
Because Engineer X was not highlighted as a key employee and the firm's conduct appeared to be oversight rather than deliberate enhancement, the Board declined to find a violation despite the factual inaccuracy.
Pertinent Fact Dual-Element Test Applied to Engineer X Listing in Firm Y Brochure
Engineer X gave two weeks notice of departure from Firm Y; Engineer Z continued distributing brochures and resumes listing Engineer X; Engineer X was not highlighted as a key employee and hydrology was not a significant portion of Firm Y's work.
Engineer Z and Firm Y were obligated to ensure that continued listing of Engineer X in promotional materials satisfied both elements of the pertinent-fact misrepresentation test before distribution; the Board found that neither element was clearly satisfied — Engineer X was not a key employee and there was no demonstrable intent to enhance qualifications — resulting in a finding of no violation.
From the moment Engineer X gave notice through the period of continued brochure distribution
it would seem to us that the inclusion of the name of Engineer X in the firms's brochure and resume would not constitute a misrepresentation of 'pertinent facts.'
Pertinent Fact Dual-Element Test Applied to Engineer Z Brochure Conduct
Firm Y brochure listing Engineer X after departure notice
The Board applied the dual-element test — requiring both (1) that the listed information constitute a pertinent fact clearly and decisively relevant to client selection, and (2) that the firm acted with intent to enhance its qualifications — to evaluate whether Engineer Z's continued distribution of brochures listing Engineer X violated ethics standards.
Because hydrology is not a significant percentage of Firm Y's work and Engineer X is not highlighted as a key employee, the first element (pertinent fact) is not clearly satisfied, and the violation threshold is not met.
The dual-element test exculpates Engineer Z from a formal violation while still recommending corrective action as best practice.
Post-Actual-Departure Brochure Prohibition Applied to Engineer B BER 83-1
Engineer B continued distributing brochures listing Engineer A as a key employee well after Engineer A's actual termination, constituting a per se misrepresentation of a pertinent fact.
Post-Actual-Departure Brochure Personnel Listing Prohibition Obligation
Engineer B was absolutely prohibited from distributing promotional brochures listing Engineer A as a current key employee after Engineer A's actual termination and departure from the firm.
From the date of Engineer A's actual termination onward
Moreover, Engineer B distributed the brochure after Engineer A had left the firm.
Post-Departure Key Employee Brochure Distribution Prohibition Applied to BER 83-1 Engineer B
The Board ruled in BER Case 83-1 that post-termination distribution of brochures listing Engineer A as a key employee was unethical, constituting a clear violation of Section II.5.a on both elements of the dual-element test.
Post-Departure Key Employee Brochure Distribution Prohibition Constraint
Engineer B was absolutely prohibited from distributing promotional brochures listing Engineer A as a key employee after Engineer A's actual termination — this constituted a clear misrepresentation of a pertinent fact with intent to enhance firm qualifications, regardless of the cost of reprinting or the prior printing of the materials.
After Engineer A's actual termination from Engineer B's firm
Moreover, Engineer B distributed the brochure after Engineer A had left the firm. The Board concluded that this would be a clear misrepresentation of a pertinent fact with the intent to enhance the firm's qualifications and as such constituted a violation of the Code.
Post-Departure Key Employee Brochure Distribution Prohibition — Engineer Z Firm Y Engineer X
Engineer Z continued distributing brochures listing Engineer X after Engineer X gave two weeks notice; the prohibition applies most strictly post-departure but its applicability depends on whether Engineer X is a key employee
Engineer Z is prohibited from continuing to distribute Firm Y's brochure and firm resume listing Engineer X as a current employee after Engineer X has actually departed from the firm, as this constitutes a misrepresentation of pertinent facts with intent to enhance firm qualifications under NSPE Code Section II.5.a — subject to the threshold question of whether Engineer X qualifies as a 'key employee' given that hydrology does not constitute a significant percentage of firm work.
Engineer X gives two weeks notice of her intent to move to another firm.
Printed Marketing Material Proactive Accuracy Assurance for Firm Y
The Board articulated a forward-looking obligation for engineering firms using printed promotional materials to maintain proactive accuracy assurance processes, beyond merely reacting to known inaccuracies.
Printed Marketing Material Proactive Accuracy Assurance Obligation
Firm Y and Engineer Z were obligated to take reasonable proactive steps to ensure that printed marketing materials — including brochures and resumes — remained as accurate and up-to-date as possible, anticipating foreseeable inaccuracies such as personnel departures and implementing processes for timely review and correction.
we believe engineering firms that use printed material as part of their marketing efforts should take reasonable steps to assure that such written matter is as accurate and up-to-date as possible.
Ongoing; triggered specifically by Engineer X's notice of departure
Proactive Accuracy Assurance for Firm Y Printed Marketing Materials
Engineering firm promotional brochures and resumes generally
The Board articulated a forward-looking obligation for engineering firms using printed promotional materials to take reasonable proactive steps — including periodic review and timely correction via errata sheets, cover letters, strike-outs, or reprints — to ensure accuracy and prevent false impressions, particularly where personnel changes create risk of client misunderstanding.
The obligation to maintain accurate marketing materials is ongoing and proactive, not merely reactive; firms must implement reasonable accuracy assurance processes as a matter of professional ethics.
The Board acknowledged logistical realities while affirming that they do not excuse failure to take reasonable corrective steps within a reasonable period.
Professional Accountability of Engineer Z for Firm Marketing Accuracy
Firm Y brochure and resume accuracy after Engineer X's departure notice
As principal of Firm Y, Engineer Z bears professional accountability for the accuracy of the firm's marketing materials, including the obligation to monitor and update personnel listings when engineers give notice of departure.
Professional accountability requires that firm principals not passively allow marketing materials to become inaccurate through neglect, even when the inaccuracy does not rise to a formal ethics violation.
Accountability exists even where a formal violation is not found; Engineer Z should have updated materials promptly as a matter of professional responsibility.
Prospective Client Brochure-Relying Engineering Services Consumer
{'harm_type': 'Misrepresentation of available expertise (hydrology)', 'reliance_basis': 'Firm brochure and firm resume listing Engineer X as current staff'}
Prospective clients and members of the public who read Firm Y's brochure and firm resume reasonably rely on the listed personnel to assess the firm's hydrology expertise, and are misled by the continued listing of Engineer X as a current employee after she has given notice of departure.
{'type': 'misled_by', 'target': 'Engineer Z Credential-Misrepresenting Firm Principal Engineer'}
{'type': 'prospective_client_of', 'target': 'Firm Y'}
Brochure-Relying Engineering Services Consumer
Prospective Clients of Engineer B's Firm Prospective Engineering Services Client Relying on Firm Brochure
{'harm': 'Potentially misled about availability of key personnel', 'case_reference': 'BER 83-1'}
Prospective clients who received Engineer B's brochure listing Engineer A as a key employee and may have relied on Engineer A's availability in selecting the firm, thereby being materially misled.
{'type': 'service_recipient_from', 'target': 'Engineer B (BER 83-1) Credential-Misrepresenting Firm Principal Engineer'}
Prospective Engineering Services Client Relying on Firm Brochure
The client may be familiar with an individual member of the firm as represented in the brochure
Prospective Clients of Firm Y Brochure Reader Reasonable Expectation Modeling
Firm Y and Engineer Z needed to model the reasonable expectations of prospective clients who read the firm's brochure — specifically, that listed personnel are currently available for future projects — and to use that modeled expectation to assess whether continued listing of Engineer X could mislead prospective clients.
Assessment of whether continued listing of Engineer X in Firm Y's brochure could mislead prospective clients into believing Engineer X would be available for future projects
Board's analysis that prospective clients may rely on listed personnel to assess firm qualifications, and that the names of firm members are often quite significant to clients selecting a firm
The client may be familiar with an individual member of the firm as represented in the brochure.
We said that the names of the firm's members are often quite significant to the client selecting the firm.
Prospective Clients of Firm Y Prospective Engineering Services Client Relying on Firm Brochure
{'harm': 'Minimal — no material misrepresentation found', 'case_reference': 'Instant case'}
Prospective clients who received Firm Y's brochure and resume listing Engineer X. The Board found that because Engineer X was not highlighted as a key employee and hydrology was not a significant service area, the listing did not constitute a material misrepresentation to these clients.
{'type': 'service_recipient_from', 'target': 'Engineer Z Oversight-Negligent Firm Marketing Principal Engineer'}
Governs Engineer Z's obligation to accurately represent firm personnel and capabilities; prohibits continued listing of Engineer X in firm brochures and resumes after she has given notice of resignation, as this overstates the firm's current hydrological expertise
Was it ethical for Engineer Z to continue to represent Engineer X as an employee of Firm Y under the circumstances described?
At what precise point after Engineer X's departure notice does continued brochure distribution transition from a permissible administrative lag into an affirmative misrepresentation, and does the Board's 'oversight' finding implicitly establish a time limit on that permissibility?
Does Engineer X bear any independent ethical obligation to actively demand that Firm Y correct its brochures and firm resume after giving notice, and if Firm Y refuses, does Engineer X have a duty to notify prospective clients or the NSPE?
Does the fact that hydrology constitutes a non-significant percentage of Firm Y's work actually protect prospective clients, or does it instead increase their vulnerability because they may be less equipped to independently verify Engineer X's availability for a specialized engagement?
Should the Board have separately evaluated whether Engineer Z's continued listing of Engineer X on the firm resume — a document typically submitted in response to specific client solicitations — carries a higher materiality threshold than a general promotional brochure, given that resume submissions are more directly tied to client selection decisions?
Does the Oversight-Without-Malice Reduced Culpability principle conflict with the Proactive Accuracy Assurance obligation, in that accepting inadvertent oversight as a mitigating factor effectively rewards firms that maintain no systematic process for updating marketing materials, thereby undermining the proactive duty that the same ethical framework demands?
Does the Notice-Period Conditional Permissibility principle conflict with the Brochure Personnel Currency Obligation, since the former permits continued distribution of materials listing a departing engineer while the latter demands immediate updating upon receipt of departure notice — and if both apply simultaneously, which principle governs when a prospective client is actually harmed by relying on the stale listing?
Does the Non-Prominent Personnel Listing Materiality Exculpation conflict with the Honesty Obligation in Engineering Firm Promotional Activities, in that the former excuses inaccuracy based on the relative obscurity of the listed engineer while the latter imposes an unconditional duty of truthfulness regardless of whether the inaccuracy is likely to be noticed or acted upon by a prospective client?
Does the Comparative Case Distinguishing principle — which separates the present case from BER 83-1 on the basis of Engineer X's non-key status — conflict with the Pertinent Fact Dual-Element Test, given that the test requires a case-by-case assessment of whether a fact would influence a client's decision, and a client specifically seeking hydrology services might find Engineer X's departure just as material as a key employee's departure regardless of her general prominence within the firm?
From a deontological perspective, did Engineer Z fulfill a categorical duty of honesty by continuing to distribute brochures listing Engineer X as a current employee after receiving her resignation notice, regardless of whether the omission was materially harmful to prospective clients?
From a consequentialist perspective, did the Board's permissive ruling — allowing continued brochure distribution during the notice period for non-key employees — produce better aggregate outcomes for firms, departing engineers, and prospective clients than a stricter rule requiring immediate correction upon receipt of any resignation notice?
From a virtue ethics standpoint, did Engineer Z demonstrate the professional integrity and diligence expected of a firm principal by failing to proactively update marketing materials upon receiving Engineer X's resignation notice, even if the omission was inadvertent and Engineer X was not a key employee?
From a deontological perspective, does the duty imposed by NSPE Code Section II.5.a — prohibiting misrepresentation of associates' qualifications — apply with equal force regardless of whether the misrepresented engineer is a key employee or a non-prominent associate, such that the Board's materiality-based distinction between Engineer Z's conduct and Engineer B's conduct in BER 83-1 is ethically unjustifiable as a matter of principle?
Would the Board have reached a different conclusion if Engineer X's hydrology expertise had constituted a significant and prominently marketed percentage of Firm Y's billable work, effectively making her a 'key employee' analogous to Engineer A in BER 83-1?
If Engineer Z had continued distributing the brochure listing Engineer X not merely through the two-week notice period but for several months after Engineer X had actually departed and joined a competing firm, would the Board's finding of 'not unethical' still hold, and at what point does an inadvertent oversight become an actionable misrepresentation?
Would the ethical analysis have changed if Engineer X had actively objected to being listed in Firm Y's brochure and resume after giving notice, thereby triggering an explicit and documented obligation on Engineer Z to remove her credentials from all marketing materials immediately?
If Firm Y had deployed an errata sheet or written addendum to all prospective clients who received the outdated brochure within days of Engineer X's notice, would that proactive corrective action have rendered the initial continued distribution entirely moot as an ethical concern, and does the Board's analysis implicitly require such corrective action as a condition of its permissive ruling?
Specialty Practice Percentage Non-Significance Applied to Engineer X Hydrology Expertise
Engineer X was one of few engineers in Firm Y with hydrology expertise, but hydrology did not constitute a significant portion of Firm Y's services, reducing the materiality of Engineer X's departure to prospective clients.
Specialty Practice Percentage Non-Significance Brochure Listing Permissibility Constraint
Engineer Z and Firm Y were constrained to assess whether hydrology — Engineer X's area of specialty — constituted a significant portion of Firm Y's overall services; the Board's finding that hydrology did not constitute a significant portion of Firm Y's services constrained the misrepresentation analysis to permit continued listing without automatic violation, notwithstanding Engineer X's relative scarcity within the firm.
While the facts reveal that Engineer X is one of the few engineers in the firm with expertise in the field of hydrology, Engineer X is not the only engineer in the firm who possesses such expertise.
During and after Engineer X's notice period
In addition, it appears that this area of practice does not constitute a significant portion of the services provided by Firm Y; therefore it would seem to us that the inclusion of the name of Engineer X in the firm's brochure and resume would not constitute a misrepresentation of 'pertinent facts.'
Three-Party Interest Balancing on Engineer X Departure
From Engineer X's notice of departure onward
Prospective and current clients of Firm Y
Three-Party Engineer Departure Interest Balancing State
The competing interests of Engineer X (mobility), Firm Y/Engineer Z (business continuity and accurate representation), and clients (accurate knowledge of firm capabilities)
Correction of firm materials and resolution of post-departure obligations
Engineer X gives two weeks' notice and Engineer Z continues to list her on firm materials
Transparency Obligation in Engineering Firm Marketing Communications
Prospective clients relying on Firm Y brochure and resume
The Board's guidance that firms should employ errata sheets, cover letters, strike-outs, and reprints to correct inaccurate marketing materials reflects the transparency obligation requiring firms to ensure prospective clients have accurate information about firm personnel and capabilities when making selection decisions.
Transparency in the marketing context requires affirmative corrective action when firms become aware that materials may create false impressions, enabling clients to make informed selection decisions.
Transparency is served through expeditious corrective mechanisms rather than requiring instantaneous reprinting; the standard is reasonableness calibrated to the risk of client misunderstanding.
Tripartite Departure Interest Balancing Framework — Engineer X Firm Y Engineer Z
The three-party balancing framework governs both Engineer X's departure conduct and Engineer Z's brochure distribution conduct; Engineer X's non-key-employee status reduces the weight of Firm Y's goodwill interest
Engineer Z (principal of Firm Y) and Engineer X
Tripartite Departure Interest Balancing Framework Application Constraint
The ethical assessment of Engineer X's departure and Engineer Z's subsequent brochure conduct must balance three interests: (1) Engineer X's right to professional mobility and career development; (2) Firm Y/Engineer Z's legitimate interest in maintaining business goodwill and accurate representation; and (3) clients' right to accurate knowledge of firm personnel qualifications — with no single interest categorically paramount, and the non-key-employee status of Engineer X affecting the weight of Firm Y's goodwill interest.
NSPE BER Cases 77-11, 79-10, 86-5; NSPE Code of Ethics
Throughout the departure and post-departure period
Truthful Non-Deceptive Advertising Obligation Grounding Firm Y Brochure Analysis
The Board's entire analysis of the present case and BER 83-1 was grounded in the honesty and non-deception obligation applicable to engineering firms' promotional activities, with the explosion of marketing activity in the profession making this obligation increasingly important.
Truthful and Non-Deceptive Advertising Obligation
Engineer Z and Firm Y were obligated to ensure that all promotional materials — including brochures and resumes listing personnel — were truthful, not misleading, and not deceptive, consistent with NSPE Code Section II.5.a, which the Board applied as the foundational standard for evaluating the ethics of continued listing of Engineer X.
Ongoing; applicable to all promotional material distributions
The Board noted that it is not unusual for an engineering firm that seeks to promote itself for business reasons to include in such a brochure a statement of the firm's experience, its history, its qualifications as well as the names and qualifications of the members of the firm.
we are not condoning the failure of an engineering firm to correct material (brochures, resumes, etc.) which might have the unintentional effect of misleading clients, potential clients and others
inaccuracy arising in firm materials before corrective measures (errata sheets, reprints, etc.)