From contract execution through payment and report delivery
ABC is currently under contract with Clover City for the preparation of a report on an expansion of the city's water treatment plant.
ABC Engineering Company's contractual relationship with Clover City for water treatment plant expansion report
Payment of report by Clover City to ABC; completion of contracted scope
ABC and Clover City enter into contract for water treatment plant expansion report
ABC's client relationships are now contested; Engineer A has transitioned from passive competitor to active solicitor; the ethical question shifts from 'may he compete' to 'how must he compete'
Approximately 18 months after Engineer A left ABC
Following the moratorium's expiration, Engineer A begins actively soliciting ABC Engineering Company's former clients, including Clover City. ABC's client relationships, built over time using firm resources, are now subject to direct competitive pressure from a former employee who developed those relationships on ABC's behalf.
ABC Engineering Company Employer-Employee Trust Proactive Disclosure Expectation
Employer-Employee Trust Foundation Proactive Disclosure Capability
ABC Engineering Company, as Engineer A's employer, had a legitimate expectation that Engineer A would proactively disclose material conflicts of interest — including Clover City's suggestion that he open an independent firm — as a matter of the trust and candor foundational to the employment relationship.
ABC Engineering Company was the employer whose client relationship with Clover City was being leveraged by Clover City to recruit Engineer A away — a situation in which the employer's trust-based expectation of disclosure was directly implicated.
ABC's position as the employer whose major client (Clover City) was actively soliciting its key engineer to go independent — a material conflict that the trust foundation of employment would require Engineer A to disclose.
Engineer A currently works for ABC Engineering Company.
Officials in Clover City suggested that Engineer A open his own engineering company in Clover City.
The city indicates that it would consider a city retainer contract.
ABC contract with Clover City for water treatment plant report before Engineer A establishing his own firm
Engineer A currently works for ABC Engineering Company... Six months later, Engineer A decides to establish his own firm in Clover City.
ABC contract with Clover City for water treatment plant report
NSPE Board of Ethical Review Case No. 77-11
In Case No. 77-11, the Board found that four engineers who left the employ of a firm, founded a new firm, and contacted the clients of the former firm were not in violation of the NSPE Code for doing so.
However, the Board did determine in Case No. 77-11 that the four engineers did violate the NSPE Code with regard to projects for which they had gained specialized knowledge while in the employ of the firm.
Moreover, unlike Case No. 77-11, it does not appear that Engineer A has obtained any particular specialized knowledge as an employee of ABC that would restrict his ability to establish his own firm.
Board of Ethical Review in reviewing Case No. 86-5 and the present case
Precedent establishing that engineers who leave a firm and contact former clients are not per se in violation of the NSPE Code, but that exploiting specialized knowledge gained during employment does constitute a violation. Used to distinguish Engineer A's situation regarding specialized knowledge.
NSPE Board of Ethical Review Case No. 79-10
In Case No. 79-10, the Board determined that an engineer employed by a firm that was winding down its operations, who sought to offer his services to complete projects under his own responsibility and risk without the concurrence of the principal of his employing firm, was ethical.
Precedent finding it ethical for an engineer employed by a winding-down firm to offer services to complete projects under his own responsibility without the principal's concurrence. Used to support the broader principle of engineer independence in departure scenarios.
NSPE Board of Ethical Review Case No. 86-5
The Board has previously addressed similar cases. In Case No. 86-5, a city requested proposals from various consulting engineers for a major job that was planned.
The Board concluded that a strict interpretation of the Code under the facts of this case led to the conclusion that it would be ethical for Engineers X, Y, and Z to agree to a contract for consulting services independent of Engineer A's firm.
This case does not appear to be dramatically different than Case No. 86-5 in that a client with a relationship with an engineering firm has sought out personnel within that firm to perform services for the benefit of the client.
Board of Ethical Review in analogical reasoning about Engineer A's departure and client relationship
Primary analogical precedent: engineers who developed a proposal for their firm were subsequently approached by the client to work independently; Board found it ethical for them to do so after disclosing to their employer and resigning. Used to compare disclosure behavior and client-solicitation conduct with Engineer A's situation.
NSPE Board of Ethical Review – Prior Cases on Engineer Departure and Client Solicitation
Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients
There was no 'no-compete agreement' between Engineer A and ABC Engineering Company
after a year has passed, Engineer A begins soliciting work from ABC's clients, including Clover City
Ethics reviewers applying analogical reasoning to Engineer A's situation
Prior BER decisions addressing analogous situations where engineers left firms to establish competing practices and subsequently solicited former employer clients, providing precedential reasoning on the ethical permissibility of such conduct absent non-compete agreements
BER Ethics Board Client-Relationship-Dependent Goodwill Assessment Application
Client-Relationship-Dependent Firm Goodwill Assessment Capability
The BER assessed that ABC's goodwill interest in Clover City was diminished because the client relationship was individual-engineer-dependent rather than firm-dependent, and weighted this finding in the tripartite interest balance.
BER ethical analysis of Engineer A's departure and competitive solicitation conduct
BER's factual finding that Clover City's interest was tied to Engineer A personally, used to justify permissibility of post-departure solicitation.
Although Clover City was a major client of ABC, under the facts it appears that ABC's business with Clover City was related strictly to the presence of Engineer A in the firm.
BER Ethics Board Free Enterprise Departure Right Non-Proscription Recognition
At-Will Employment Reciprocity Ethical Boundary Recognition Capability
The BER recognized that Engineer A's decision to establish an independent engineering firm raised no general ethical proscription, affirming the free enterprise principle of career mobility while identifying the specific ethical issues that do arise in this context.
BER ethical analysis of Engineer A's decision to establish an independent firm
BER's explicit statement that 'the Board can find no general ethical proscription limiting Engineer A's decision to establish an engineering firm.'
It is not unusual for engineers, employed by others, at some point, to break off from their employer and go into business for themselves. This is a fundamental principle of this nation's free enterprise system and generally should not be discouraged.
As to the first issue, the Board can find no general ethical proscription limiting Engineer A's decision to establish an engineering firm.
BER Ethics Board Independent Departure Motivation Assessment
Independent Departure Motivation Verification Capability
The BER assessed and verified that Engineer A's departure motivation was independent from client solicitation dynamics, using this finding as a key factor in distinguishing the present case from more problematic departure scenarios.
BER ethical analysis distinguishing Engineer A's case from Case 86-5
BER's explicit finding that Engineer A's departure was motivated by factors independent from his Clover City relationship, used to mitigate the significance of non-disclosure.
the Board does not consider this to be particularly significant because (1) the engineers in Case No. 86-5 provided disclosure and did not seek consent or concurrence and (2) in the present case Engineer A's decision to depart from ABC and establish his own firm clearly appears to be motivated by factors independent from any relationship that Engineer A might be developing with Clover City.
BER Ethics Board Multi-Party Competing Interest Balance Engineer A Case
Multi-Party Competing Interest Fair Balance Reasoning Capability
The BER applied the tripartite interest balancing framework — weighing Clover City's interest in retaining its chosen firm, Engineer A's interest in career mobility, and ABC's interest in maintaining client goodwill — to reach a justified ethical conclusion that Engineer A's conduct was permissible.
BER ethical analysis of Engineer A's departure from ABC
BER's explicit articulation and application of the three-party interest balance in evaluating Engineer A's departure conduct.
In reviewing each case, the Board noted the need to balance (1) the interests of the client in retaining the firm of its choice; (2) the interests of the individually employed engineers; and (3) the interests of the firm and its interest in maintaining business goodwill with its clients.
Turning to the specific facts of this case and balancing the interests of all parties involved in this matter, the Board believes that Engineer A's actions and conduct were ethical.
BER Ethics Board Staff vs Partner Role-Calibrated Departure Constraint Differentiation
Staff vs Partner Role-Calibrated Departure Constraint Differentiation Capability
The BER correctly identified and applied the distinction between staff engineer and partner/principal roles to calibrate the ethical constraints applicable to Engineer A's departure, finding that his staff status warranted less stringent departure constraints.
BER ethical analysis of Engineer A's departure conduct
BER's explicit statement that Engineer A's conduct was reasonable 'particularly since Engineer A was an employee of ABC and not a partner or principal of the firm.'
We believe Engineer A's conduct is appropriate and within the bounds of what would be considered reasonable, particularly since Engineer A was an employee of ABC and not a partner or principal of the firm.
BER Ethics Board Three-Precedent Employment Transition Triangulation
BER Multi-Precedent Employment Transition Ethics Synthesis Capability
The BER retrieved and triangulated among BER Cases 77-11, 79-10, and 86-5 to synthesize a normative framework for evaluating Engineer A's departure conduct, identifying factual distinctions and extracting transferable principles about client interest balancing, specialized knowledge constraints, and disclosure obligations.
BER ethical analysis of Engineer A's departure from ABC and establishment of competing firm
BER's systematic review of Cases 77-11, 79-10, and 86-5 and application of the synthesized three-precedent framework to Engineer A's case.
In reaching its conclusion in Case No. 86-5, the Board reviewed two earlier BER cases, Nos. 77-11 and 79-10.
BER Ethics Board Voluntary Abstention Ethical Weight Recognition
Voluntary Competitive Abstention Period Ethical Weight Recognition Capability
The BER recognized Engineer A's voluntary one-year abstention from competitive solicitation as ethically significant conduct that, combined with other factors, supported the conclusion that his overall departure conduct was ethical.
BER's weighing of Engineer A's voluntary waiting period as part of the overall ethical assessment of his departure conduct.
Engineer A still declined an apparent offer of work by Clover City, decided not to compete directly with his former employer, ABC, and waited for a period of over a year before deciding to go into competition with his former employer, ABC.
BER Multi-Case Precedent Integration Engineer Departure Ethics Assessment
BER explicitly reviewed and integrated Cases 77-11, 79-10, and 86-5 in reaching its ethical conclusion about Engineer A's conduct
BER Precedent Multi-Case Conflict Assessment Integration Constraint
The BER's assessment of Engineer A's departure ethics was required to integrate and apply the cumulative guidance from BER Cases 77-11, 79-10, and 86-5 — rather than applying any single precedent in isolation — establishing that the weight of accumulated BER decisions on engineer departure and post-departure competition constitutes the operative ethical standard.
In reaching its conclusion in Case No. 86-5, the Board reviewed two earlier BER cases, Nos. 77-11 and 79-10
BER ethical evaluation of Engineer A's departure and post-departure conduct
In reviewing each case, the Board noted the need to balance (1) the interests of the client in retaining the firm of its choice; (2) the interests of the individually employed engineers; and (3) the interests of the firm and its interest in maintaining business goodwill with its clients
BER Tripartite Interest Balancing Engineer A ABC Clover City Application
BER applied the tripartite interest balancing framework developed across Cases 77-11, 79-10, and 86-5 to evaluate Engineer A's departure ethics
BER ethical evaluation of Engineer A's departure
Tripartite Departure Interest Balancing Framework Application Constraint
The BER's ethical assessment of Engineer A's departure from ABC and subsequent competition for Clover City work was required to balance: (1) Clover City's interest in retaining the engineering firm or individual of its choice; (2) Engineer A's interest in professional mobility and establishing an independent practice; and (3) ABC's interest in maintaining business goodwill with its clients — with no single interest categorically paramount.
NSPE BER Cases 77-11, 79-10, 86-5; present case BER analysis
the Board noted the need to balance (1) the interests of the client in retaining the firm of its choice; (2) the interests of the individually employed engineers; and (3) the interests of the firm and its interest in maintaining business goodwill with its clients
No one can deny that a client has a right to retain the engineering firm of its choice. What must be addressed, however, is a method to effect that right in a manner that is both fair and equitable to all of the concerned parties
Turning to the specific facts of this case and balancing the interests of all parties involved in this matter, the Board believes that Engineer A's actions and conduct were ethical
Case 77-11 Four Engineers Specialized Knowledge Violation
Four engineers left a firm, founded a new firm, and competed for projects on which they had gained specialized knowledge — found to be an NSPE Code violation
Specialized Knowledge Post-Departure Competition Restriction Constraint
The four engineers who departed their firm in Case 77-11 violated the NSPE Code by competing for projects on which they had gained specialized knowledge while employed by the former firm, establishing the specialized knowledge restriction as a binding constraint on post-departure competition.
the Board did determine in Case No. 77-11 that the four engineers did violate the NSPE Code with regard to projects for which they had gained specialized knowledge while in the employ of the firm
Post-departure competition period following engineers' departure from former firm
CausalLink_Established Independent Engine
CausalLink_Expanded Report Scope Unilater
CausalLink_Initiated Solicitation of Form
CausalLink_Self-Imposed Client Solicitati
CausalLink_Withheld Client Overture from
Engineer A transitions from anonymous employee to recognized individual asset in client's eyes; dual loyalty risk now latent
During active contract period (baseline period)
A strong professional relationship develops between Engineer A and Clover City through sustained contract work at ABC Engineering Company. This relationship becomes a foundational asset that later creates competing loyalties and ethical tensions.
Client Relationship Formed (Event 1) → Clover City Overture Occurs (Event 3)
A strong professional relationship develops between Engineer A and Clover City through sustained contact, directly precipitating Clover City officials' confidence in suggesting Engineer A open his own firm and hinting at a retainer contract.
Without the strong personal relationship formed through sustained contact, Clover City officials would have had no basis to single out Engineer A for a direct overture; the suggestion would likely not have occurred if Engineer A had been a peripheral contributor
Clover City's satisfaction with Engineer A's individual contributions distinct from ABC Engineering
Demonstrated competence and quality of work product (including expanded report scope)
Sustained professional contact between Engineer A and Clover City officials
Engineer A (primary) and Clover City Officials (secondary)
Strong personal professional relationship + demonstrated individual competence + client dissatisfaction or desire for direct engagement = sufficient to motivate client overture
Clover City Informal Interest Non-Guarantee of Future Award to Engineer A
BER noted that Clover City's preliminary interest was not a formal agreement and that Engineer A's declination of the active project may have reduced Clover City's interest
Informal Client Interest Non-Guarantee of Future Award Constraint
Clover City's preliminary expression of interest in Engineer A's future independent services did not constitute a guarantee of future award, and Engineer A was required to recognize that the passage of over one year between the informal expression of interest and his eventual solicitation may have substantially reduced Clover City's interest in his services.
While Clover City may have expressed preliminary interest in Engineer A's future services, there was no formal agreement between Engineer A and the city and no guarantee that with the passage of the year, Engineer A's solicitations for work would be positively received by Clover City
Period between Clover City's informal expression of interest and Engineer A's post-departure solicitation
The fact that Engineer A declined to participate on an active project at the time that Clover City sought his assistance might have made Clover City far less likely to be interested in Engineer A's services
Clover City Officials Informal Tank Contract Promise Appearance of Impropriety Constraint
Clover City officials' informal suggestion that Engineer A open an independent firm and their indication of future contract awards created an appearance of impropriety in public procurement by pre-selecting a contractor outside competitive processes.
Appearance of Impropriety Avoidance in Public Procurement Constraint
Clover City officials were constrained from informally promising Engineer A's new firm a retainer and the elevated storage tank design contract — such informal pre-award commitments created an appearance of impropriety and favoritism in public procurement, regardless of the officials' appreciation for Engineer A's prior work.
NSPE Code public procurement fairness norms; BER Cases 82-2, 15-7, 16-3
Recently, officials in Clover City suggested that Engineer A open his own engineering company in Clover City.
At the time Clover City officials suggested Engineer A open an independent firm and indicated future contract awards
The city indicates that it would consider a city retainer contract and also a contract for the design of the elevated storage tank.
Engineer A now has knowledge of a specific business opportunity tied to ABC's client; a latent conflict of interest becomes active; Engineer A must choose how to respond
During or immediately following contract completion, prior to Engineer A's departure from ABC
Clover City officials, impressed with Engineer A's work, suggest that Engineer A open his own firm and hint at offering him a retainer contract and the elevated storage tank design contract. This unsolicited approach by the client is an external event that places Engineer A in an ethically charged position.
Clover City officials suggesting Engineer A open his own firm before Engineer A establishing his own firm
Recently, officials in Clover City suggested that Engineer A open his own engineering company in Clover City... Six months later, Engineer A decides to establish his own firm.
Clover City officials suggesting Engineer A open his own firm
Clover City paying ABC for the report before Clover City officials suggesting Engineer A open his own firm
Clover City is impressed by Engineer A's initiative on this project. The city has paid ABC for this report. Recently, officials in Clover City suggested that Engineer A open his own engineering company.
Clover City's suggestion of retainer and storage tank contract before Engineer A declining to solicit Clover City work
The city indicates that it would consider a city retainer contract and also a contract for the design of the elevated storage tank... Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients, including Clover City for a period of time.
Clover City's suggestion of retainer and storage tank contract
Engineer A declining to solicit Clover City work
It was ethical for Engineer A to establish his own firm in Clover City.
Beyond the Board's finding that it was ethical for Engineer A to establish his own firm in Clover City, the Board's analysis leaves unexamined a structurally significant pre-departure conflict: Engineer A possessed actual knowledge that Clover City officials had already expressed intent to award him a retainer and the elevated storage tank design contract before he resigned from ABC. This knowledge created a dual-loyalty condition that the faithful agent obligation required him to disclose to ABC, regardless of whether any formal non-compete agreement existed. The absence of a written non-compete does not extinguish the ethical duty under NSPE Code Section II.4 to act as a faithful agent during the period of active employment. Engineer A's silence about Clover City's overture deprived ABC of the opportunity to reassign the Clover City account, renegotiate its relationship with the city, or take other protective measures. The Board's conclusion that departure was ethical is defensible on free enterprise grounds, but it is incomplete because it does not distinguish between the permissibility of departure itself and the ethical adequacy of the manner in which Engineer A executed that departure — specifically, his non-disclosure of a concrete, client-initiated inducement that arose directly from work he performed on ABC's behalf.
The Board's conclusion that establishing an independent firm was ethical is further complicated by the out-of-scope nature of the elevated storage tank work that directly generated Clover City's favorable impression and subsequent overture. Engineer A unilaterally expanded the water treatment report to include elevated storage tank funding elements without a separate contract between ABC and Clover City. While the Board invokes the speculative work non-entitlement principle to protect ABC's interests — correctly noting that ABC has no claim to the tank design contract — it does not examine the inverse question: whether Engineer A's initiative in performing that out-of-scope work was itself a self-serving act that violated his non-self-serving advisory obligation to ABC. If Engineer A foresaw, or reasonably should have foreseen, that including tank funding elements would impress Clover City and position him for independent work, then the initiative was not purely in the client's or employer's interest. It was a strategic act of relationship cultivation conducted on ABC's time and under ABC's contractual umbrella, which raises a distinct faithful agent concern that the Board's analysis does not resolve. The ethical permissibility of the departure cannot be fully assessed without first resolving whether the conditions that made departure attractive were themselves ethically generated.
The Board's treatment of Engineer A's non-principal employee status as a mitigating factor in the departure analysis, while consistent with precedent from Case 86-5, introduces a role-calibrated ethical standard that the Board does not fully articulate or bound. The implicit logic is that a staff engineer's departure causes less institutional harm than a partner's departure because the firm's goodwill is less dependent on the staff engineer's individual relationships. However, in this specific case, the Board simultaneously finds that Clover City's relationship with ABC was attributable solely to Engineer A's presence rather than to ABC as an institution — a finding that functionally negates the mitigating force of his non-principal status. If the client relationship was entirely individual-tied, then Engineer A's departure caused precisely the kind of client-stripping harm that the elevated departure constraints for principals are designed to prevent, regardless of his formal employment classification. The Board cannot coherently invoke staff-engineer mitigation while also finding that the client relationship was entirely personal to Engineer A, without explaining why the role-calibration principle should dominate over the relationship-attribution finding in the ethical calculus.
Beyond the Board's finding that post-moratorium solicitation of ABC's clients was ethical, the analysis requires an additional constraint that the Board does not impose: Engineer A's competitive advantage with Clover City derives substantially from knowledge, relationships, and work product — including the elevated storage tank funding analysis — developed exclusively during his ABC employment. The post-employment confidential information non-use principle, grounded in NSPE Code Section III.4, does not expire when the voluntary moratorium expires. Even after the one-year period, Engineer A remains obligated not to exploit proprietary content from the ABC water treatment report as a competitive credential or differentiator in solicitations. The moratorium addresses the timing of solicitation; it does not address the content or basis of that solicitation. If Engineer A's pitch to Clover City relies on the substance of work product that ABC owns — or on relationships cultivated under ABC's contractual umbrella — then the solicitation, though temporally permissible, may still violate the perpetual confidentiality and non-exploitation obligations that survive employment termination. The Board's conclusion on post-moratorium solicitation is therefore ethically sufficient only if Engineer A's solicitations are grounded in his general professional competence rather than in the specific proprietary outputs of his ABC employment.
The Board's approval of post-moratorium solicitation rests heavily on the voluntary one-year moratorium as an ethically sufficient cooling-off period, but the Board does not establish a principled basis for why one year is adequate rather than arbitrary. The moratorium's ethical weight depends on whether it gave ABC a genuine opportunity to replace Engineer A's relationships with Clover City and to secure its client base — not merely on the passage of time. Given that Clover City had already signaled its preference for Engineer A before his departure, and given that this preference was never disclosed to ABC, the moratorium may have provided ABC with a false sense of security: the city's loyalty had already migrated to Engineer A personally before the moratorium began, meaning ABC had no realistic opportunity to rebuild the relationship during the moratorium period regardless of its duration. Under these circumstances, the voluntary moratorium functions more as a formal ethical gesture than as a substantive protective mechanism for ABC. The Board's conclusion that post-moratorium solicitation was ethical would be stronger if it had conditioned that finding on whether the moratorium actually afforded ABC a meaningful competitive opportunity — a condition that the pre-departure non-disclosure of Clover City's overture may have structurally precluded.
The Board's conclusion that post-moratorium solicitation was ethical does not adequately address the appearance-of-impropriety concern embedded in Clover City's pre-departure informal promise of a retainer and the elevated storage tank design contract. This informal pre-award commitment — made while Engineer A was still employed by ABC and actively working on Clover City's project — creates a structural conflict that persists into the post-moratorium solicitation period. When Engineer A ultimately solicits and receives those contracts, the transaction has the appearance of a pre-arranged diversion of public municipal work to a preferred individual, negotiated outside any competitive procurement process and predicated on work performed under a different employer's contract. The Board does not examine whether Clover City's informal commitment violated any public procurement obligations, nor does it consider whether Engineer A's acceptance of contracts that were effectively pre-promised to him — regardless of the moratorium interval — constitutes participation in an arrangement that undermines fair and open competition in the public engineering market. The ethical analysis of post-moratorium solicitation is incomplete without addressing whether the solicitation was genuinely competitive or merely the formal consummation of a pre-departure arrangement that should have been disclosed, contested, or declined.
It was ethical for Engineer A to begin soliciting work from ABC’s clients, including Clover City after a year had passed.
In response to Q101: Engineer A's unilateral expansion of the water treatment report to include elevated storage tank funding elements was ethically ambiguous in motivation even if beneficial in outcome. The Speculative Work Non-Entitlement principle and the Non-Self-Serving Advisory Obligation together require that Engineer A's initiative be evaluated not merely by its result — a satisfied client — but by the intent driving it. If Engineer A foresaw, or reasonably should have foreseen, that including out-of-scope tank funding elements would distinguish him personally in Clover City's eyes and position him for independent contracts, then the act was at least partially self-serving. A faithful agent acting under Code Section II.4 must subordinate personal advancement to the employer's interests during employment. The fact that ABC was paid for the report does not cleanse the motivation: ABC received compensation for contracted work, but Engineer A used uncontracted work — performed on ABC's time and under ABC's professional umbrella — to cultivate a personal competitive advantage. This does not necessarily render the act a clear violation, but it does mean the Board's silence on this dimension left a material ethical question unresolved. The out-of-scope initiative should have been disclosed to ABC management and, ideally, formalized through a supplemental scope agreement, which would have both protected ABC's institutional relationship with Clover City and eliminated the appearance that Engineer A was building a private client pipeline at ABC's expense.
In response to Q102: Engineer A's failure to disclose Clover City's overture to ABC before resigning constituted a breach of the faithful agent duty under Code Section II.4, even though the Board treated non-disclosure as ethically permissible with the qualification that disclosure would have been 'prudent.' The distinction between prudential advisability and ethical obligation is not merely semantic here — it is determinative. Code Section III.4.a prohibits an engineer from promoting or arranging new employment to the detriment of the employer without the consent of all interested parties. Clover City's overture was not a casual inquiry; it was a structured suggestion accompanied by signals of a retainer and a design contract. Engineer A's decision to act on that overture — by establishing an independent firm six months later — was materially influenced by information he possessed while still employed by ABC and while actively working on ABC's Clover City project. ABC had a legitimate institutional interest in knowing that its primary client contact was being recruited away by that client, because such knowledge would have allowed ABC to reassign the project, renegotiate its client relationship, or take other protective measures. By withholding this information, Engineer A deprived ABC of agency during the very period when the faithful agent obligation was most demanding. The Board's framing of non-disclosure as merely imprudent rather than unethical understates the relational harm and is inconsistent with the full scope of Section II.4.
In response to Q103: Clover City's informal pre-departure signal of intent to award Engineer A both a retainer and the elevated storage tank design contract creates a substantial appearance of impropriety that neither the Board nor the parties adequately examined. When a public municipal client effectively pre-selects a private engineer for future contracts before that engineer has even established an independent firm — and does so based on work performed under a different firm's contract — the arrangement raises concerns that go beyond individual professional ethics and implicate public procurement integrity. The Clover City officials' suggestion was not merely encouragement of professional mobility; it was a conditional inducement: establish your own firm and we will give you work. This structure, even if not legally corrupt, creates an incentive for Engineer A to prioritize Clover City's preferences over ABC's interests during the remaining period of his employment, and it creates an incentive for Clover City officials to favor a pre-selected provider over competitive alternatives. The Board's framework, which focuses on Engineer A's individual ethical obligations, does not address whether Clover City's conduct was itself ethically appropriate, nor does it consider whether Engineer A's acceptance of those contracts — even after establishing his firm — was tainted by the pre-departure arrangement. A fully rigorous analysis would have required examining whether Engineer A should have declined the tank design contract and retainer on the grounds that they were effectively promised to him under ethically compromised circumstances, regardless of the one-year moratorium.
In response to Q104: Engineer A faces a perpetual, though not absolute, constraint on how he may exploit the elevated storage tank work in post-departure solicitations. The work was performed under ABC's professional umbrella, using ABC's resources, time, and contractual relationship with Clover City. Even though no separate contract existed between ABC and Clover City for the tank design, the work product was generated during Engineer A's employment and is therefore attributable to ABC as an institution, not to Engineer A as an independent practitioner. The Post-Employment Confidential Information Non-Use principle and the ABC Water Treatment Report Proprietary Content Non-Exploitation Constraint together establish that Engineer A may not use the specific technical content, methodologies, or client-specific data from that report as a competitive differentiator in solicitations. However, Engineer A is not prohibited from representing that he has general experience in water treatment infrastructure and elevated storage tank design — provided he accurately attributes that experience to work performed while employed at ABC, rather than presenting it as independent work product. The critical ethical line is between claiming general professional competence developed during prior employment (permissible) and leveraging proprietary ABC work product or client-specific intelligence as a solicitation tool (impermissible). The Board's silence on this distinction leaves a gap that could, in practice, allow Engineer A to exploit the very work that created his competitive advantage with Clover City, in a manner that the faithful agent obligation was designed to prevent.
In response to Q201: The tension between the Faithful Agent Obligation and Client Autonomy is genuine and the Board resolved it too quickly in favor of client autonomy. Clover City's suggestion that Engineer A establish an independent firm was not a neutral exercise of client preference — it was an active intervention in the employment relationship between Engineer A and ABC, made while ABC held an active contract with Clover City and while Engineer A was the primary professional executing that contract. Client autonomy is a legitimate principle when it governs a client's selection among competing providers in an open market. It is a far more problematic principle when invoked to justify a client's active recruitment of an employer's key employee during an active engagement. The Board's application of client autonomy effectively allowed Clover City to weaponize its client relationship with ABC to extract ABC's human capital, without any obligation of disclosure or consent. This is precisely the scenario that Code Section III.4.a is designed to address: promoting or arranging new employment to the detriment of the employer without the consent of all interested parties. The Board's conclusion that the client-initiated nature of the departure shifts moral responsibility to Clover City is analytically correct as far as it goes, but it does not resolve Engineer A's independent obligation under Section II.4 to act as a faithful agent — an obligation that is not discharged simply because the competing inducement originated with the client rather than with Engineer A.
In response to Q202: The tension between Free and Open Competition and the Post-Employment Confidential Information Non-Use principle is not fully resolved by the one-year moratorium. Engineer A's competitive advantage with Clover City after departure is not generic market knowledge — it is the product of a specific, client-funded engagement conducted under ABC's institutional authority. His knowledge of Clover City's infrastructure needs, budget constraints, internal decision-making processes, and key personnel relationships was acquired exclusively through ABC's contractual relationship with the city. The moratorium addresses the temporal dimension of competition — when Engineer A may begin soliciting — but it does not address the informational dimension — what knowledge he may deploy in those solicitations. Free and open competition presupposes competitors operating from roughly equivalent informational starting points, or at least from information acquired through their own independent efforts. Engineer A's informational advantage over any other engineering firm competing for Clover City work is entirely derived from ABC's prior engagement. The Board's conclusion that post-moratorium solicitation is ethically permissible is defensible as a general proposition, but it should have been conditioned on an explicit prohibition against Engineer A using client-specific intelligence — as opposed to general professional experience — as a competitive tool. Without that condition, the free competition framework effectively subsidizes Engineer A's new firm with ABC's proprietary client knowledge.
In response to Q203: The Voluntary Non-Solicitation Period principle is structurally undermined as a protective mechanism for ABC precisely because Engineer A's pre-departure non-disclosure deprived ABC of the opportunity to respond during the period the moratorium was supposed to protect. The moratorium's ethical function is to give the former employer time to consolidate client relationships, reassign personnel, and compete on equal footing before the departing engineer enters the market. But that function presupposes that the employer knows, at the time of departure, that it faces a competitive threat from the departing engineer. ABC did not know — because Engineer A withheld Clover City's overture — that Clover City had already signaled its preference for Engineer A's independent services. ABC therefore had no reason to take protective measures with respect to Clover City during the moratorium period. By the time Engineer A began soliciting after the moratorium elapsed, Clover City's preference for Engineer A was already established, and ABC's window for competitive response had effectively closed before it opened. This interaction between the non-disclosure and the moratorium reveals that the Board's two-part ethical clearance — non-disclosure was merely imprudent, and the moratorium was ethically sufficient — is internally inconsistent: the moratorium cannot be ethically sufficient if the non-disclosure neutralized its protective function.
In response to Q301 (deontological analysis of non-disclosure): From a deontological perspective, Engineer A failed to fulfill the full scope of his faithful agent duty to ABC by withholding Clover City's overture. Kantian ethics requires that duties be discharged not merely in their outward form but in their underlying maxim: an agent who withholds information that would materially affect the principal's ability to protect its interests is not acting as a faithful agent, regardless of whether the withheld information is legally required to be disclosed. The maxim of Engineer A's conduct — 'I may withhold from my employer information about a client's interest in my independent services, provided I do not immediately accept that interest' — cannot be universalized without undermining the institution of the employer-employee trust relationship on which professional engineering practice depends. The Board's reliance on the absence of a non-compete agreement and the client-initiated nature of the departure as mitigating factors is consequentialist reasoning imported into what should be a deontological analysis of the faithful agent duty. Under a strict deontological framework, the faithful agent obligation is not contingent on contractual enforcement mechanisms or on who initiated the competing interest — it is a categorical duty that persists as long as the employment relationship exists and the agent possesses information material to the principal's interests.
In response to Q304 (deontological analysis of non-compete absence): From a deontological perspective, the absence of a written non-compete agreement between Engineer A and ABC does not eliminate Engineer A's post-departure ethical obligations — it merely removes the contractual enforcement mechanism. The NSPE Code of Ethics operates independently of contract law: Code Sections II.4, III.4, III.4.a, and III.4.b impose duties of loyalty, confidentiality, and non-exploitation that are grounded in professional ethics, not in private agreement. A deontological analysis confirms that these duties persist post-departure because they derive from the nature of the professional relationship and the trust reposed in the engineer, not from the existence of a signed document. The Board correctly implied this when it noted that Engineer A must not exploit confidential information from ABC's water treatment report even after departure. However, the Board did not extend this reasoning to its logical conclusion: if confidentiality obligations persist without a contract, then the duty not to exploit client-specific intelligence acquired during employment — including knowledge of Clover City's infrastructure priorities, budget signals, and decision-maker preferences — also persists, regardless of whether a non-compete agreement exists. The non-compete agreement's absence affects the scope of permissible competition (Engineer A may compete), not the ethical constraints on how that competition is conducted.
In response to Q401 (counterfactual — partner vs. staff status): The Board would very likely have reached a different conclusion had Engineer A been a partner or principal at ABC rather than a staff engineer. The Board explicitly identified Engineer A's non-principal status as a mitigating factor in its analysis, drawing on the precedent framework that distinguishes between departing principals — who owe heightened duties of loyalty and institutional stewardship — and departing staff engineers, who are treated as possessing greater mobility rights. A partner or principal at ABC would have had fiduciary duties to the firm that extend well beyond the faithful agent obligation applicable to staff: they would have had duties of loyalty, non-competition, and disclosure that are inherent in the partnership relationship and that persist even in the absence of a written agreement. Under that analysis, a partner's failure to disclose Clover City's overture would almost certainly have been found to violate the fiduciary duty owed to co-principals, and the partner's establishment of a competing firm in the same city serving the same client would have raised serious questions about breach of fiduciary duty independent of any NSPE Code analysis. The Board's staff-versus-principal distinction is therefore not merely a mitigating factor — it is a threshold determination that shapes the entire ethical framework applied to the departure.
In response to Q402 (counterfactual — prior disclosure): Had Engineer A disclosed Clover City's overture to ABC management before resigning, the disclosure would have substantially resolved — though not entirely eliminated — the faithful agent tension. Disclosure would have fulfilled the core requirement of Code Section III.4.a by giving ABC, as an interested party, the opportunity to consent to or contest the arrangement. It would have allowed ABC to reassign the Clover City project, renegotiate its client relationship, or seek its own protective arrangements. It would also have eliminated the appearance that Engineer A was secretly cultivating a private client pipeline at ABC's expense. However, disclosure alone would not have resolved all ethical concerns: Engineer A would still have faced questions about whether the elevated storage tank work was performed with self-serving intent, and Clover City's pre-departure commitment would still have raised procurement integrity concerns. The disclosure would, however, have shifted the moral calculus significantly — ABC's subsequent failure to take protective measures after being informed would have been attributable to ABC's own choices rather than to Engineer A's concealment. The Board's characterization of disclosure as merely 'prudent' rather than ethically required is therefore doubly problematic: it understates the ethical weight of disclosure and it forecloses the analytical question of how disclosure would have altered the downstream ethical analysis.
In response to Q403 (counterfactual — immediate post-departure solicitation): Had Engineer A begun soliciting ABC's clients immediately upon resignation rather than waiting a year, the Board would very likely have found that conduct ethically impermissible, and the voluntary moratorium functions as an ethical threshold — not merely a mitigating factor — below which immediate solicitation would be impermissible even absent a written non-compete agreement. The Board's approval of Engineer A's post-moratorium solicitation is explicitly conditioned on the moratorium having occurred: the one-year abstention is treated as the mechanism by which Engineer A demonstrated good faith and gave ABC a reasonable opportunity to consolidate its client relationships. Immediate solicitation would have eliminated that demonstration entirely and would have been difficult to distinguish from the conduct condemned in Case 77-11, where departing engineers immediately leveraged employer relationships and specialized knowledge to compete. The moratorium therefore functions as a necessary — though not sufficient — condition for ethical post-departure competition. This implies that the NSPE ethical framework, even in the absence of contractual non-compete provisions, imposes a de facto cooling-off obligation on departing engineers who possess client-specific knowledge and relationships developed during employment. The duration of that obligation is not fixed by the Code but is calibrated to the circumstances — the depth of the client relationship, the recency of the engagement, and the degree to which the departing engineer's competitive advantage derives from employer-funded work.
In response to Q404 (counterfactual — immediate acceptance of Clover City offer while still employed): Had Engineer A immediately accepted Clover City's informal offer of a retainer and the elevated storage tank design contract while still employed at ABC, the Board would almost certainly have found that conduct to violate the faithful agent obligation under Code Section II.4. Accepting a contract from an active client of one's employer — for work that arose directly from employment-funded activities — while still employed constitutes a paradigmatic breach of the faithful agent duty: it diverts a business opportunity from the employer to the employee, it creates an undisclosed conflict of interest, and it uses the employer's client relationship as a vehicle for personal enrichment. The fact that the tank work was outside ABC's contracted scope would not have provided a complete defense: the opportunity arose from ABC's engagement, was developed using ABC's resources and time, and was presented to Clover City under ABC's professional authority. The out-of-scope nature of the work might have reduced ABC's legal claim to the contract, but it would not have eliminated Engineer A's ethical obligation to disclose the opportunity to ABC and allow ABC to decide whether to pursue it. This counterfactual also illuminates the ethical significance of Engineer A's actual conduct: by not immediately accepting the offer, Engineer A demonstrated a degree of faithful agent restraint that the Board credited — but that restraint was partial, because the non-disclosure of the offer itself remained a breach of the same duty.
The Board resolved the tension between the Faithful Agent Obligation and Client Autonomy by treating the client-initiated nature of Engineer A's departure as a moral responsibility shift rather than a conflict requiring resolution. Because Clover City — not Engineer A — originated the suggestion to establish an independent firm, the Board effectively transferred the ethical weight of the loyalty disruption from Engineer A to the client. This resolution is analytically incomplete, however, because the Faithful Agent Obligation runs to ABC during employment regardless of who initiates a competing arrangement. Engineer A's failure to disclose Clover City's overture to ABC while still actively working on Clover City's project meant that ABC could not assess, respond to, or protect against the emerging conflict. The Board's reliance on client-initiated departure as a mitigating principle does not extinguish the disclosure component of the faithful agent duty — it merely reduces the culpability for the departure itself. The case therefore teaches that client autonomy can shift moral responsibility for competitive outcomes but cannot substitute for the transparency obligations that the faithful agent principle independently imposes during active employment.
The tension between Free and Open Competition and the Post-Employment Confidential Information Non-Use principle was resolved in Engineer A's favor primarily because the Board found no specialized knowledge barrier to competition — that is, Engineer A did not carry away proprietary technical secrets that would give him an unfair competitive advantage derived from ABC's institutional knowledge. However, this resolution leaves a residual and unaddressed tension: Engineer A's competitive advantage with Clover City is not rooted in abstract technical knowledge but in a specific, pre-departure relationship cultivated entirely on ABC's time and through ABC's contract. The Board treated the relationship as personally attributable to Engineer A rather than to ABC as an institution, which is a factual finding that does the heavy lifting in permitting post-departure competition. This case teaches that the Free and Open Competition principle does not operate as a blanket license to exploit employer-funded client relationships after departure; rather, it operates within a boundary condition defined by whether the competitive advantage is traceable to the engineer's general professional skill or to the employer's specific institutional investment. Where, as here, the Board finds the relationship is personal rather than institutional, competition is permitted — but that factual determination is contestable and should be made explicitly rather than assumed.
The Voluntary Non-Solicitation Period principle and the Tripartite Interest Balancing principle interact in this case to produce a resolution that is ethically sufficient on its face but structurally asymmetric in practice. The Board treats Engineer A's voluntary one-year moratorium as adequate protection for ABC's interests, effectively treating temporal restraint as a proxy for the full range of obligations the faithful agent principle would otherwise impose. However, the Tripartite Interest Balancing framework — which requires simultaneous weighing of ABC's, Engineer A's, and Clover City's interests — was applied after the fact, at the point of post-departure solicitation, rather than at the earlier and more consequential moment when Clover City made its pre-departure overture. By deferring the balancing exercise, the Board allowed Clover City's pre-departure signal of intent to go unexamined as a potential distortion of the competitive process. The case teaches that tripartite balancing must be applied prospectively — at the moment a conflict of interest first materializes — not retrospectively after the departing engineer has already structured his conduct around an undisclosed advantage. When the moratorium is the only mechanism protecting ABC's interests, and that moratorium was self-imposed without ABC's knowledge of the underlying overture, the Voluntary Non-Solicitation Period principle cannot fully substitute for the disclosure and consent requirements that a genuine tripartite balancing would demand.
Professional engineering ethics practice
Cooling-Off Period Framework for Post-Employment Client Solicitation
Six months later, Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients, including Clover City for a period of time
However, after a year has passed, Engineer A begins soliciting work from ABC's clients, including Clover City
Engineer A in structuring the timeline of departure and subsequent client solicitation
Engineer A voluntarily abstained from soliciting ABC's clients for six months before establishing his firm, and then for approximately one year after establishment — the framework helps evaluate whether this self-imposed waiting period satisfies professional ethical norms even absent a formal non-compete agreement
Should Engineer A disclose Clover City's overture to ABC management before resigning, or may he act on the overture without disclosure given that the client — not Engineer A — initiated the suggestion?
Engineer A, while still employed by ABC and actively working on Clover City's water treatment project, receives an unsolicited suggestion from Clover City officials to establish an independent firm — with signals of a retainer and elevated storage tank design contract. The faithful agent obligation requires loyalty to ABC during employment, but the overture was client-initiated and Engineer A took no affirmative steps to solicit it. The question is whether Engineer A must disclose this overture to ABC management before acting on it.
Inform ABC management of Clover City's suggestion and the signals of future work, giving ABC the opportunity to reassign the project, renegotiate its client relationship, or take other protective measures before Engineer A departs.
Resign from ABC without disclosing the overture — treating the client-initiated nature of the suggestion as shifting moral responsibility to Clover City — and voluntarily refrain from soliciting ABC's clients for approximately one year as a good-faith transition measure.
Decline Clover City's suggestion entirely while still employed, completing the water treatment project as ABC's faithful agent and deferring any consideration of independent practice until after the engagement concludes and no active conflict exists.
Was it ethical for Engineer A to establish his own independent firm in Clover City, given that the client overture motivating his departure arose directly from work performed during active ABC employment?
Engineer A established his independent firm in Clover City after receiving an unsolicited overture from city officials. He held no ownership stake in ABC, signed no non-compete agreement, and the free enterprise principle broadly supports an engineer's right to establish independent practice. However, the faithful agent obligation applied during active employment, and the conditions that made departure attractive — Clover City's favorable impression — were generated by out-of-scope work Engineer A performed on ABC's time and under ABC's contractual umbrella.
Resign from ABC and establish an independent firm in Clover City after completing the water treatment report engagement, relying on the free enterprise principle and the absence of a non-compete agreement as the permissive baseline, while voluntarily refraining from soliciting ABC's clients for a reasonable period.
Before resigning, disclose to ABC both the out-of-scope tank work and Clover City's overture, allowing ABC to formalize the tank work through a supplemental scope agreement and to consent to or contest Engineer A's departure — thereby ensuring the conditions motivating departure were ethically generated and transparent.
Exercise the right to independent practice by establishing a firm that does not directly compete for ABC's existing client base in Clover City, preserving Engineer A's professional autonomy while minimizing the institutional harm to ABC from the departure of its primary Clover City contact.
Should Engineer A solicit Clover City's work after the one-year moratorium by leveraging the specific client relationships and project knowledge developed during his ABC employment, or must he limit his solicitation to his general professional competence without exploiting proprietary ABC work product or client-specific intelligence?
After establishing his independent firm and voluntarily refraining from soliciting ABC's clients for approximately one year, Engineer A begins soliciting work from ABC's former clients including Clover City. No non-compete agreement exists. The voluntary moratorium is treated by the Board as an ethically sufficient cooling-off period. However, Engineer A's competitive advantage with Clover City derives substantially from knowledge, relationships, and work product — including the elevated storage tank funding analysis — developed exclusively during his ABC employment, and Clover City had already signaled its preference for Engineer A before the moratorium began.
Solicit Clover City's work after the moratorium by representing general professional experience in water treatment and municipal infrastructure, accurately attributing prior project experience to work performed while employed at ABC, without deploying client-specific intelligence, budget data, or proprietary report content as competitive differentiators.
Solicit Clover City's work by drawing on the full depth of knowledge — including infrastructure priorities, budget constraints, internal decision-making processes, and key personnel relationships — developed during the ABC engagement, treating this knowledge as general professional experience freely portable upon departure.
Voluntarily extend the non-solicitation period beyond one year with respect to Clover City specifically — given that the city's preference for Engineer A was established before the moratorium began — until ABC has had a genuine opportunity to compete for the city's work on equal informational footing.
Should Engineer A have disclosed the out-of-scope elevated storage tank initiative to ABC management and sought a supplemental scope agreement, or was he entitled to include the tank funding elements unilaterally as a professional judgment call in the client's interest?
Engineer A unilaterally expanded the water treatment report to include elevated storage tank funding elements that were outside the scope of work originally negotiated between ABC and Clover City. This initiative impressed Clover City and directly generated the overture for Engineer A to establish an independent firm. The non-self-serving advisory obligation requires that Engineer A's initiative be evaluated not merely by its beneficial outcome for the client but by the intent driving it — specifically, whether Engineer A foresaw that the out-of-scope work would position him personally for future independent contracts.
Inform ABC management of the intent to include elevated storage tank funding elements in the report, seek a supplemental scope agreement with Clover City through ABC, and allow ABC to decide whether to pursue the tank design opportunity — thereby protecting ABC's institutional relationship and eliminating any appearance of self-serving conduct.
Include the elevated storage tank funding elements as a professional judgment call in the client's interest without separate disclosure to ABC, treating the initiative as within the scope of competent professional service delivery and not requiring employer approval for beneficial scope enhancements.
Confine the water treatment report strictly to the originally negotiated scope, advising Clover City separately that elevated storage tank funding is a distinct need that should be addressed through a new engagement — preserving the integrity of the contracted scope while identifying the additional opportunity for ABC to pursue.
After the moratorium elapses, should Engineer A represent his elevated storage tank funding work as a specific credential in soliciting Clover City's tank design contract, or must he limit his competitive representations to general professional experience in water treatment infrastructure without referencing the proprietary content of the ABC-funded report?
After Engineer A departs and the one-year moratorium elapses, he solicits and receives from Clover City both a retainer and the elevated storage tank design contract — work that was effectively pre-signaled to him before his departure. The post-employment confidential information non-use prohibition establishes that Engineer A may not exploit proprietary content from the ABC water treatment report as a competitive credential. The question is whether Engineer A's use of the specific technical outputs, client-specific data, and relationships from the ABC engagement in his post-departure solicitations crosses the line from permissible general professional experience into impermissible exploitation of employer-funded work product.
Represent to Clover City that Engineer A has general experience in water treatment infrastructure and elevated storage tank design developed during prior employment at ABC, without referencing the specific technical content, client-specific data, or proprietary methodologies from the ABC-funded report as independent credentials.
Represent the elevated storage tank funding analysis as a specific project credential in soliciting the tank design contract, treating the work as part of Engineer A's professional portfolio given that no separate contract existed between ABC and Clover City for the tank work and the initiative was Engineer A's own professional contribution.
Before referencing any work performed during ABC employment in solicitations to Clover City, seek ABC's consent to use the water treatment report and tank funding analysis as credentials — treating the work product as jointly attributable and requiring ABC's authorization before Engineer A deploys it competitively against ABC's interests.
Should Engineer A accept the elevated storage tank design contract and retainer from Clover City after establishing his independent firm, given that these contracts were effectively pre-signaled to him before his departure in a manner that bypassed competitive procurement, or should he decline them on appearance-of-impropriety grounds and compete through open channels?
Clover City's pre-departure informal signal of intent to award Engineer A both a retainer and the elevated storage tank design contract — made while Engineer A was still employed by ABC and actively working on Clover City's project — creates a structural conflict that implicates both public procurement integrity and the tripartite interest balancing framework. The Board's analysis focused on Engineer A's individual ethical obligations but did not examine whether Clover City's conduct was itself ethically appropriate, nor whether Engineer A's acceptance of contracts effectively pre-promised to him constituted participation in an arrangement that undermines fair and open competition in the public engineering market.
After the one-year moratorium, solicit and accept the retainer and tank design contract through normal competitive channels, treating the pre-departure signal as a non-binding expression of client preference that does not taint the subsequent competitive process, provided no formal pre-departure agreement existed.
Decline the retainer and elevated storage tank design contract specifically — on the grounds that they were effectively pre-promised under ethically compromised circumstances — while competing openly for other Clover City or municipal engineering work that was not the subject of a pre-departure informal commitment.
Before accepting the retainer and tank design contract, disclose to Clover City's procurement officials the pre-departure nature of the city's overture, allowing the municipality to determine whether a competitive procurement process is required and ensuring that acceptance of the contracts is not tainted by the appearance of a pre-arranged award.
NSPE Board of Ethical Review (derived from NSPE Code Section III.4)
Professional Norms Governing Engineer Confidentiality and Loyalty to Former Employer
Engineer Confidentiality and Loyalty Obligation Standard
The Code addresses the use of confidential information concerning the technical affairs or processes of the former employer.
Moreover, unlike Case No. 77-11, it does not appear that Engineer A has obtained any particular specialized knowledge as an employee of ABC that would restrict his ability to establish his own firm and eventually compete with ABC.
Board of Ethical Review in distinguishing the present case from Case No. 77-11
Applied to assess whether Engineer A improperly used confidential technical information or specialized knowledge gained at ABC to compete with or harm his former employer
NSPE Board of Ethical Review (derived from NSPE Code Sections III.4, III.4.a., III.4.b.)
Professional Norms Governing Engineer Departure and Competition with Former Employer
Engineer Departure and Competition Ethics Standard
The Board can find no general ethical proscription limiting Engineer A's decision to establish an engineering firm.
Engineer A still declined an apparent offer of work by Clover City, decided not to compete directly with his former employer, ABC, and waited for a period of over a year before deciding to go into competition with his former employer.
Board of Ethical Review in evaluating Engineer A's decision to establish his own firm and eventually compete with ABC
Governs the ethical boundaries applicable when Engineer A leaves ABC Engineering to establish an independent firm, including the one-year waiting period, absence of a non-compete agreement, and the distinction between employee and partner/principal status as factors bearing on ethical permissibility
Engineer A ABC Faithful Agent Duty During Active Clover City Project Constraint
Engineer A's departure from ABC and establishment of an independent firm competing for Clover City contracts required balancing the legitimate interests of all three parties — the client, the departing engineer, and the former employer.
Three-Party Engineer Departure Interest Balancing Constraint
Engineer A was constrained to balance the three-party interests of Clover City's right to choose its engineer, ABC's legitimate goodwill interest, and his own right to establish an independent practice — prohibiting conduct that systematically subordinated any one interest through misrepresentation, disparagement, or insider knowledge exploitation.
NSPE BER Cases 77-11, 79-10, 86-5, 97-2; NSPE Code Sections III.4, III.4a, III.4b
Six months later, Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients, including Clover City for a period of time.
Throughout Engineer A's departure from ABC and subsequent independent solicitation of Clover City
However, after a year has passed, Engineer A begins soliciting work from ABC's clients, including Clover City.
There was no 'no-compete agreement' between Engineer A and ABC Engineering Company.
Engineer A ABC Water Treatment Report Proprietary Content Non-Exploitation Constraint
Engineer A developed the water treatment plant expansion report as an ABC employee; the proprietary content of that report remained confidential ABC work product that Engineer A could not exploit in independent competition.
Post-Employment Confidential Information Non-Exploitation Constraint
Engineer A was constrained from exploiting the specific proprietary content, client-specific data, and confidential technical information contained in the ABC water treatment plant expansion report when competing independently for Clover City contracts.
NSPE Code Section III.4, III.4a, III.4b; BER Case 86-5
As an employee of ABC, Engineer A developed the report by which the city will get funding for the water treatment plant expansion.
From Engineer A's departure from ABC through his independent solicitation of Clover City — and for an indeterminate period thereafter
The report included a part dealing with funding for an elevated storage tank.
Engineer A Active Project Declination During ABC Employment
Active Project Declination During Employment Faithful Agent Compliance Capability
Engineer A recognized and fulfilled the faithful agent obligation to decline Clover City's apparent offer of independent work while still employed at ABC, thereby preserving his faithful agent integrity during the transition period.
Engineer A's response to Clover City's suggestion of independent work while still employed at ABC
Engineer A's declination of Clover City's apparent offer of work while still employed at ABC, before establishing his independent firm.
Engineer A At-Will Employment Reciprocity Ethical Boundary Recognition
Engineer A was required to recognize that the at-will employment relationship with ABC — and the absence of a no-compete agreement — permitted him to freely establish a competing firm, while also recognizing that this freedom did not suspend his ethical obligations of honesty, confidentiality, and non-disparagement.
The absence of a no-compete agreement and the at-will employment relationship gave Engineer A legal freedom to compete, but ethical obligations persisted independently of this legal freedom.
Engineer A's decision to establish his own firm and subsequently solicit ABC clients, which was legally permissible under at-will employment but subject to continuing ethical constraints.
After a year has passed, Engineer A begins soliciting work from ABC's clients, including Clover City.
Six months later, Engineer A decides to establish his own firm in Clover City.
Engineer A BER Employment Transition Multi-Precedent Synthesis
Engineer A (and any ethics reviewer of his conduct) was required to retrieve, analyze, and synthesize multiple BER precedent cases addressing engineer employment transitions — including BER 77-11 (departing engineers founding competing firms), BER 79-10 (winding-down firm engineers), BER 86-5 (client-solicited staff engineers), and BER 97-2 (client-impetus mitigating cases) — to reach a justified ethical conclusion about the permissibility of his conduct.
The case involves a complex employment transition scenario with multiple ethically relevant features — client-initiated suggestion, out-of-scope work, voluntary non-solicitation, and post-period competitive solicitation — requiring multi-precedent synthesis.
The ethical analysis of Engineer A's conduct requires synthesis of multiple BER precedents addressing the specific factual pattern of client-solicited departure, voluntary non-solicitation, and subsequent competitive solicitation.
After a year has passed, Engineer A begins soliciting work from ABC's clients.
Officials in Clover City suggested that Engineer A open his own engineering company.
Six months later, Engineer A decides to establish his own firm.
Engineer A Client-Impetus Mitigating Factor Assessment
Client-Impetus Mitigating Factor Assessment Capability
Engineer A and the BER assessed that Clover City's affirmative suggestion that Engineer A open an independent firm constituted a mitigating factor that altered the ethical evaluation of his subsequent competitive conduct, distinguishing his situation from an engineer who independently solicited a client without client impetus.
BER ethical analysis of Engineer A's departure and solicitation conduct
BER's recognition that Clover City was 'favorably disposed towards establishing a contractual relationship with Engineer A' as a mitigating factor in the ethical analysis.
It is clear that the client, Clover City, is favorably disposed towards establishing a contractual relationship with Engineer A.
Engineer A Client-Impetus Mitigating Factor Assessment for Clover City Solicitation
Engineer A was required to assess whether Clover City's proactive suggestion that he open an independent firm constituted a mitigating factor that altered the ethical evaluation of his subsequent competitive solicitation of Clover City — recognizing that client-initiated impetus may legitimately mitigate the engineer's solicitation conduct.
Clover City proactively suggested Engineer A open his own firm and indicated it would consider retaining him — a client-initiated impetus that is a recognized mitigating factor in BER employment transition precedents.
Engineer A's assessment of whether Clover City's suggestion to go independent reduced the ethical weight of his subsequent solicitation of Clover City after the voluntary non-solicitation period.
Engineer A Client-Relationship-Dependent Firm Goodwill Assessment
Engineer A (and the BER evaluating his conduct) assessed that ABC's business with Clover City was attributable to Engineer A's individual presence rather than to ABC's organizational goodwill, reducing the ethical weight of ABC's interest in retaining the client.
Ethical evaluation of Engineer A's departure from ABC and subsequent solicitation of Clover City
The BER's finding that Clover City's interest in ABC's services did not extend beyond Engineer A's individual services, diminishing the firm's goodwill claim in the tripartite balance.
There does not appear to be any indication that Clover City's interest in ABC's services goes beyond the services provided by Engineer A.
Engineer A Client-Solicited Departure Employer Disclosure Weighing
Client-Solicited Departure Employer Disclosure Weighing Capability
Engineer A possessed the capability to weigh whether Clover City's suggestion that he open an independent firm constituted a material conflict requiring disclosure to ABC Engineering Company, balancing faithful agent duties against prudential self-protection considerations.
While employed by ABC and actively working on the Clover City water treatment report, Engineer A received a suggestion from Clover City officials to open his own firm — a material conflict of interest that implicated his faithful agent duty to ABC.
Engineer A's decision not to immediately disclose Clover City's suggestion to ABC while continuing to serve as ABC's employee on the Clover City water treatment project, and his eventual departure six months later.
Engineer A Client Confidentiality Perpetuation Post-Departure
Client Confidentiality Boundary Recognition Capability
Engineer A was required to recognize that the confidential content of the ABC water treatment plant expansion report — including client-specific data and proprietary analyses — remained confidential after his departure from ABC, and that using or disclosing this content in independent practice would cross the confidentiality boundary.
The water treatment report was developed within the ABC-Clover City client relationship; its confidential content remained protected after Engineer A's departure regardless of the absence of a formal confidentiality agreement.
Engineer A's obligation to protect the confidential content of the ABC report after departing, even while soliciting Clover City independently.
Engineer A Clover City Suggestion Faithful Agent Conflict Disclosure Constraint
While employed by ABC and actively serving Clover City on the water treatment plant expansion, Engineer A received a direct suggestion from Clover City officials to establish an independent firm with the prospect of a retainer and elevated storage tank design contract — creating an undisclosed conflict of interest.
Client-Initiated Departure Encouragement Faithful Agent Conflict Disclosure Constraint
Engineer A was constrained from concealing Clover City's suggestion that he open an independent firm and the city's indication of future contracts while continuing to serve Clover City as ABC's faithful agent; the conflict required disclosure to ABC.
NSPE Code of Ethics — faithful agent and conflict of interest provisions; BER Case 86-5
From the moment Clover City officials suggested Engineer A open an independent firm until Engineer A's departure from ABC
Engineer A Departing Employee Specialized Knowledge Absence Self-Assessment
Departing Employee Specialized Knowledge Competitive Restriction Self-Assessment Capability
Engineer A assessed that he had not acquired particular specialized knowledge during his employment at ABC that would restrict his ability to establish his own firm and compete with ABC, distinguishing his situation from the four engineers in Case 77-11.
Engineer A's self-assessment of competitive constraints upon departing ABC
The BER's finding that unlike Case 77-11, Engineer A did not appear to have obtained specialized knowledge that would restrict his competitive practice.
Engineer A Departing Employee Specialized Knowledge Competitive Restriction Self-Assessment
Engineer A was required to self-assess whether his specialized knowledge of the Clover City water treatment project — including the proprietary report content and client-specific data — ethically restricted his ability to compete against ABC for Clover City work without consent.
Engineer A possessed specialized knowledge of the Clover City water treatment project from his work as an ABC employee — knowledge that may ethically restrict his competitive solicitation of the same client.
Engineer A's post-departure solicitation of Clover City required him to assess whether his specialized knowledge of the ABC water treatment report created ethical restrictions on his competitive conduct.
Engineer A Departing Engineer Client Solicitation Honest Representation
Departing Engineer Client Solicitation Honest Representation Capability
Engineer A conducted his post-departure solicitation of Clover City and other former ABC clients honestly, without misrepresentation of ABC's capabilities or his own independent qualifications.
Engineer A's post-departure solicitation of Clover City after the voluntary abstention period
BER's finding that Engineer A's solicitation conduct was ethical and within reasonable bounds, implying honest representation in competitive solicitation.
As to the second issue, regarding Engineer A's solicitation of business, the interests of the client mandate BER concern.
Engineer A Disclosure Non-Mandatory But Prudentially Advisable Self-Assessment
Disclosure Non-Mandatory But Prudentially Advisable Distinction Capability
Engineer A navigated the distinction between mandatory and prudentially advisable disclosure, choosing not to disclose Clover City's solicitation to ABC — a decision the BER found defensible given the independent motivation for departure, though disclosure (as in Case 86-5) would have been prudentially stronger.
Engineer A's decision not to disclose Clover City's solicitation to ABC before departing
Engineer A's non-disclosure decision and the BER's finding that this was not 'particularly significant' given the independent departure motivation.
However, weighing all factors, the Board does not consider this to be particularly significant because (1) the engineers in Case No. 86-5 provided disclosure and did not seek consent or concurrence and (2) in the present case Engineer A's decision to depart from ABC and establish his own firm clearly appears to be motivated by factors independent from any relationship that Engineer A might be developing with Clover City.
Engineer A Elevated Storage Tank Out-of-Scope Work Competitive Non-Exploitation Constraint
Engineer A's out-of-scope elevated storage tank work was performed as an ABC employee using employer resources and client access; the resulting goodwill and technical content belonged to ABC and could not be exploited as a competitive advantage in independent solicitation.
Out-of-Scope Employer-Funded Work Product Competitive Non-Exploitation Constraint
Engineer A was constrained from exploiting the goodwill, technical content, and client relationship generated by his out-of-scope elevated storage tank work — performed as an ABC employee — as a competitive lever to displace ABC in soliciting the elevated storage tank design contract independently.
NSPE Code faithful agent and conflict of interest provisions; BER Case 86-5
Those aspects of the report that dealt with the elevated storage tank were not part of the scope of work originally negotiated between ABC and Clover City and no contract exists between the city and ABC for the design of the elevated storage tank.
From Engineer A's departure from ABC through his independent solicitation of the elevated storage tank design contract
Clover City is impressed by Engineer A's initiative on this project.
Engineer A Elevated Storage Tank Work Attribution Accuracy in Solicitation
Prior-Employer Project Credit Scope Calibration Capability
Engineer A was required to accurately calibrate the credit he could claim for the elevated storage tank work when soliciting Clover City independently — recognizing that the work was performed as an ABC employee and must be attributed to ABC rather than claimed as an independent personal achievement.
The elevated storage tank work was performed as an ABC employee using ABC's professional context and resources; claiming it as independent personal work in solicitation materials would misrepresent its origin.
Engineer A's solicitation of the elevated storage tank design contract from Clover City after departure, requiring accurate attribution of the prior out-of-scope work to ABC Engineering Company.
Those aspects of the report that dealt with the elevated storage tank were not part of the scope of work originally negotiated between ABC and Clover City.
As an employee of ABC, Engineer A developed the report.
The city indicates that it would consider... a contract for the design of the elevated storage tank.
Engineer A Elevated Storage Tank Work Attribution Non-Misrepresentation Constraint
Engineer A performed the elevated storage tank funding analysis as an ABC employee; when soliciting the design contract independently, he was required to accurately attribute this prior work to ABC rather than presenting it as independent prior work.
Elevated Storage Tank Out-of-Scope Work Attribution Non-Misrepresentation Constraint
Engineer A was constrained, when soliciting the elevated storage tank design contract independently, to accurately attribute the elevated storage tank funding work to ABC Engineering and his role as an ABC employee — prohibiting presentation that created a misleading impression of independent prior authorship.
NSPE Code Section II.5.a; Prior-Employer Project Attribution Completeness Constraint precedent; BER Case 86-5
During Engineer A's independent solicitation of the elevated storage tank design contract from Clover City
Engineer A Faithful Agent Client Benefit Primacy During ABC Employment
Faithful Agent Client Benefit Primacy Over Personal Advantage Recognition Capability
Engineer A was required to recognize that his duty as faithful agent to ABC required carrying out the Clover City engagement in the manner most beneficial to ABC, not in a manner that served his personal interest in establishing an independent firm.
Engineer A's receipt of Clover City's suggestion while actively employed by and serving ABC on the Clover City project created a direct conflict between personal advantage and faithful agent duty.
The ethical tension between Engineer A's continued service on the Clover City water treatment report and his receipt of Clover City's suggestion to go independent — requiring recognition that personal advantage must not override faithful agent duty.
{'firm_type': 'Large private engineering firm', 'case_reference': 'BER Case No. 86-5', 'disclosure_received': 'Yes — Engineers X, Y, Z disclosed before resigning'}
Principal of a large engineering firm in Case 86-5 whose three staff engineers were solicited by the city client to work independently after the city learned they had developed the firm's proposal; the engineers disclosed this and resigned
{'type': 'former_employees', 'target': 'Engineers X Y Z Client-Solicited Departing Staff Engineers Case 86-5'}
Firm Principal Losing Staff to Client-Initiated Departure
Engineer A, a principal in a large engineering firm in the city decided to have his firm submit a proposal
Engineers X, Y, and Z disclose the facts to Engineer A, resign from the firm
Engineer A Free Enterprise Departure No General Ethical Proscription
Engineer A departed ABC Engineering Company and established an independent competing firm; BER evaluated whether this departure raised ethical issues
At-Will Employment Symmetry Competitive Mobility Permissibility Constraint
Engineer A's decision to establish an independent engineering firm raised no general ethical proscription under the NSPE Code, consistent with the fundamental principle of free enterprise and BER precedent establishing that engineer departure and competition is not per se unethical in the absence of a non-compete agreement or specialized knowledge restriction.
It is not unusual for engineers, employed by others, at some point, to break off from their employer and go into business for themselves. This is a fundamental principle of this nation's free enterprise system and generally should not be discouraged. As a general matter, this practice raises no ethical issues for the BER's consideration.
At the time of Engineer A's departure from ABC Engineering Company
the Board can find no general ethical proscription limiting Engineer A's decision to establish an engineering firm
Engineer A No-Compete Absence Ethical Obligation Persistence Recognition
No-Compete Agreement Absence Ethical Obligation Persistence Recognition Capability
Engineer A was required to recognize that the absence of a formal no-compete agreement with ABC did not eliminate his ethical obligations of honesty, confidentiality, and faithful agent conduct in his post-departure competitive activities.
The case explicitly notes the absence of a no-compete agreement, making it necessary for Engineer A to recognize that ethical obligations persist independently of contractual restrictions.
Engineer A's post-departure solicitation of ABC clients in the absence of a no-compete agreement — requiring recognition that legal permissibility does not establish ethical permissibility.
Engineer A No-Compete Agreement Absence Ethical Obligation Persistence Recognition
Engineer A recognized that the absence of a formal no-compete agreement with ABC did not eliminate his ethical obligations — including faithful agent duties, confidentiality, and honest representation — and conducted himself in accordance with those obligations despite the absence of contractual constraints.
Engineer A's departure from ABC and establishment of competing firm without a no-compete agreement
Engineer A's voluntary abstention from solicitation, declination of active work, and honest competitive conduct despite no formal no-compete agreement.
There was no formal written agreement between Engineer A and ABC that would address the issue of whether and under what terms Engineer A could compete with ABC after departing from ABC.
Engineer A No Specialized Knowledge Bar to Competition with ABC
BER distinguished Engineer A's situation from Case 77-11 by finding no specialized knowledge acquisition that would restrict competition
Unlike the engineers in Case 77-11, Engineer A did not acquire particular specialized knowledge at ABC Engineering that would restrict his ability to establish his own firm and compete with ABC, meaning the specialized knowledge restriction constraint did not apply to Engineer A's post-departure competition.
NSPE BER Case analysis; BER Case 77-11 distinguished
unlike Case No. 77-11, it does not appear that Engineer A has obtained any particular specialized knowledge as an employee of ABC that would restrict his ability to establish his own firm and eventually compete with ABC
Engineer A's post-departure competition period
Engineer A No Written Non-Compete Agreement Free Competition Permissibility
BER noted the absence of a written non-compete agreement as a factor supporting the permissibility of Engineer A's post-departure competition
The absence of a formal written non-compete agreement between Engineer A and ABC Engineering Company, combined with the absence of specialized knowledge acquisition, established that Engineer A had the ethical freedom to depart and compete with ABC for Clover City's work after a reasonable period.
NSPE Code; BER analysis; BER Cases 77-11, 86-5
There was no formal written agreement between Engineer A and ABC that would address the issue of whether and under what terms Engineer A could compete with ABC after departing from ABC
Engineer A Non-Principal Employee Status Departure Mitigation
BER noted Engineer A's employee (non-principal) status as a factor supporting the ethical permissibility of his departure conduct
Non-Principal Employee Departure Competitive Conduct Proportionality Constraint
Engineer A's status as an employee (not a partner or principal) of ABC Engineering Company at the time of departure was a relevant mitigating factor in assessing the ethical permissibility of his post-departure competitive conduct, calibrating the goodwill-preservation obligation to a less stringent standard than would apply to a departing principal.
NSPE BER analysis; BER Cases 77-11, 86-5
We believe Engineer A's conduct is appropriate and within the bounds of what would be considered reasonable, particularly since Engineer A was an employee of ABC and not a partner or principal of the firm
Assessment of Engineer A's departure and post-departure conduct
Engineer A Non-Principal Employee Status Mitigating Departure Severity Constraint
Engineer A was an employee (not a partner or principal) of ABC, which moderated — but did not eliminate — his goodwill-preservation obligations to the firm upon departure.
Engineer A's status as a non-principal employee of ABC — rather than a partner or principal — was a relevant mitigating factor calibrating the stringency of his goodwill-preservation obligations to ABC, while leaving fully intact all prohibitions on misrepresentation, disparagement, and specialized knowledge exploitation.
NSPE BER precedent recognizing organizational role as a calibrating factor in departure ethics assessment
Throughout the ethical assessment of Engineer A's departure from ABC and subsequent competitive conduct
Engineer A Out-of-Scope Initiative Non-Self-Serving Motivation Verification
Out-of-Scope Initiative Employer Attribution Non-Self-Serving Motivation Verification Capability
Engineer A was required to critically examine whether his initiative in developing the elevated storage tank portion of the water treatment report — beyond the contracted scope — was genuinely client-serving rather than a covert effort to build a personal relationship with Clover City for future independent work.
The out-of-scope elevated storage tank work was performed as an ABC employee, was paid for by Clover City to ABC, and subsequently became the basis for Clover City's interest in retaining Engineer A independently.
Engineer A's out-of-scope development of the elevated storage tank funding section, which impressed Clover City and led directly to the city's suggestion that he open an independent firm — raising the question of whether the initiative was self-serving.
Engineer A Perpetual Loyal Devotion Non-Extension to Former Employer Recognition
Perpetual Loyal Devotion Non-Extension to Former Client Recognition Capability
Engineer A was required to recognize that his faithful agent obligations to ABC during employment did not extend into a perpetual bar on competing with ABC after departure — that post-departure competitive solicitation of former ABC clients was ethically permissible subject to honesty, confidentiality, and non-disparagement constraints.
Engineer A's post-departure competitive solicitation required recognition that faithful agent duties during employment do not create a perpetual bar on post-employment competition, subject to residual ethical constraints.
Engineer A's post-departure solicitation of Clover City and other ABC clients after the voluntary non-solicitation period, which was ethically permissible as a matter of bounded post-employment loyalty.
Engineer A Post-Departure ABC Client Solicitation Free Competition Framework Constraint
The absence of a non-compete agreement placed Engineer A's post-departure solicitation within the free and open competition framework, but this framework required honorable competitive conduct conforming to applicable laws.
Free and Open Competition Regulatory Deference Constraint
Engineer A's post-departure solicitation of Clover City and other ABC clients was governed by the legal and ethical framework of free and open competition — permitting solicitation in the absence of a non-compete agreement — but requiring that all competitive conduct conform to applicable laws and regulations and be conducted honorably.
NSPE Code; BER Cases 77-11, 79-10, 86-5, 97-2; applicable state and local procurement laws
From the expiration of Engineer A's voluntary moratorium through his solicitation of ABC's clients
Engineer A Post-Departure Clover City Solicitation Honest Representation
Engineer A was required to conduct his post-departure solicitation of Clover City and other ABC clients with full honesty — accurately representing his new firm's capabilities, refraining from misrepresentation of ABC's capacity to perform, and ensuring solicitation materials did not contain false or misleading statements.
After the voluntary non-solicitation period elapsed, Engineer A began soliciting former ABC clients including Clover City, requiring honest and non-disparaging competitive conduct.
Engineer A's solicitation of Clover City and other ABC clients after one year, which was required to be conducted honestly and without disparagement of ABC.
Engineer A was obligated, when soliciting Clover City and other ABC clients after one year, to conduct that solicitation honestly, without misrepresentation.
Engineer A Post-Departure Clover City Solicitation Uncertainty Acknowledgment
Post-Departure Client Solicitation Uncertainty Acknowledgment Capability
Engineer A recognized that Clover City's pre-departure expressions of interest did not guarantee post-departure contract award, particularly given that his declination of active work may have diminished the city's interest, and conducted solicitation without assuming entitlement.
The BER's observation that Engineer A's prior declination might have made Clover City less likely to be interested, and that there was no formal agreement or guarantee of positive reception.
While Clover City may have expressed preliminary interest in Engineer A's future services, there was no formal agreement between Engineer A and the city and no guarantee that with the passage of the year, Engineer A's solicitations for work would be positively received by Clover City.
The fact that Engineer A declined to participate on an active project at the time that Clover City sought his assistance might have made Clover City far less likely to be interested in Engineer A's services.
Engineer A Post-Departure Competitive Mobility Permissibility Constraint
Engineer A had no written non-compete agreement with ABC, establishing the baseline ethical permissibility of his departure and independent practice, subject to honorable competitive conduct constraints.
Engineer A was ethically permitted to depart ABC and establish a competing firm in the absence of a written non-compete agreement and without having acquired particular specialized knowledge that would restrict competition, but this permissibility was bounded by prohibitions on misrepresentation, disparagement, and insider knowledge exploitation.
NSPE BER Cases 77-11, 79-10, 86-5, 97-2; NSPE Code of Ethics
From Engineer A's departure from ABC through his subsequent solicitation of Clover City
Engineer A Post-Employment ABC Confidentiality Perpetuation Constraint
Engineer A's post-employment confidentiality obligations to ABC persisted beyond the formal end of employment and beyond the voluntary moratorium period, requiring ongoing assessment of the continuing vitality of those obligations.
Post-Employment Duty of Trust and Loyalty Duration Indeterminacy Constraint
Engineer A's duty of trust and loyalty to ABC — including the obligation to protect confidential information and facts obtained during employment — persisted after his departure for an indeterminate period, prohibiting him from treating the mere passage of time or the expiration of the voluntary moratorium as a complete discharge of residual confidentiality obligations.
NSPE Code Section III.4; BER precedent on post-employment confidentiality duration
From Engineer A's departure from ABC for an indeterminate period thereafter
Engineer A Post-Employment NSPE Code III.4 Tripartite Obligation Compliance
BER identified NSPE Code Sections III.4, III.4.a, and III.4.b as the primary normative framework governing Engineer A's post-departure conduct
Post-Employment NSPE Code III.4 Adversarial Promotional Confidentiality Tripartite Constraint
Engineer A remained subject to NSPE Code Sections III.4, III.4.a, and III.4.b after departing ABC, prohibiting him from: (1) using confidential information concerning ABC's technical affairs or processes; (2) conducting promotional activities or business negotiations improperly; and (3) engaging in improper adversarial conduct relating to ABC — with all three obligations operating concurrently throughout his post-employment competing practice.
NSPE Code Sections III.4, III.4.a, III.4.b
The Code addresses the use of confidential information concerning the technical affairs or processes of the former employer, promotional activities and negotiations for employment or business, and the involvement of the engineer in adversarial situations relating to the former employer. (See NSPE Code Sections III.4., III.4.a., III.4.b.)
Post-departure period during which Engineer A operated his independent competing firm
Engineer A Post-Moratorium Clover City Solicitation Honorable Conduct Constraint
After the one-year moratorium, Engineer A began soliciting Clover City; this solicitation was constrained to honorable competitive methods without exploitation of his prior insider position at ABC.
Procurement Competition Honorable Conduct Constraint
Engineer A was constrained, when soliciting Clover City after the moratorium period, to conduct that solicitation honorably, responsibly, and fairly — without misrepresentation, disparagement of ABC, or exploitation of insider knowledge — competing solely on demonstrated merit and qualifications.
NSPE Code Sections II.5, III.6, III.7; BER Cases 77-11, 86-5
From the expiration of Engineer A's voluntary moratorium through his solicitation of Clover City and other ABC clients
Engineer A Pre-Departure Non-Disclosure Independent Motivation Sufficiency
BER compared Engineer A's non-disclosure with the disclosure made by Engineers X, Y, Z in Case 86-5, finding the non-disclosure non-determinative given independent departure motivation
Departure Independent Motivation Non-Disclosure Ethical Sufficiency Constraint
Engineer A's failure to disclose Clover City's expressed interest in his independent services to ABC before resigning did not constitute an ethical violation because his decision to depart and establish an independent firm was demonstrably motivated by factors independent from any relationship he was developing with Clover City.
NSPE BER analysis; BER Case 86-5 distinguished
in the present case, there is no disclosure between Engineer A and ABC
Period between Clover City's expression of interest and Engineer A's resignation from ABC
weighing all factors, the Board does not consider this to be particularly significant because (1) the engineers in Case No. 86-5 provided disclosure and did not seek consent or concurrence and (2) in the present case Engineer A's decision to depart from ABC and establish his own firm clearly appears to be motivated by factors independent from any relationship that Engineer A might be developing with Clover City
Engineer A Speculative Tank Work Non-Entitlement to Preferential Award Constraint
Clover City's informal signal of intent to award the elevated storage tank design contract to Engineer A's new firm, based on his prior speculative work, was ethically impermissible as a preferential non-competitive award.
Speculative Service Non-Entitlement to Preferential Award Constraint
Engineer A's out-of-scope, speculative work on the elevated storage tank funding portion of the ABC report did not entitle him — or his independent firm — to preferential, non-competitive award of the elevated storage tank design contract from Clover City.
NSPE Code public procurement fairness norms; BER Case 86-5
At the time of Engineer A's independent solicitation of the elevated storage tank design contract
Engineer A Staff Role Departure Constraint Self-Recognition
Engineer A implicitly recognized that as a staff employee rather than a partner or principal, his departure obligations were calibrated accordingly, and conducted himself within those calibrated constraints.
Engineer A's departure from ABC and establishment of independent firm
Engineer A's conduct in declining active work, waiting over a year, and then soliciting — consistent with staff-level rather than partner-level departure constraints.
Engineer A Voluntary Competitive Abstention Period Ethical Weight
Engineer A recognized the ethical significance of voluntarily refraining from competitive solicitation for over a year beyond any legal requirement, demonstrating good faith that strengthened the ethical defensibility of his subsequent solicitation of Clover City.
Engineer A's post-departure conduct before soliciting Clover City
Engineer A's voluntary decision to wait over a year before soliciting ABC's clients, despite no contractual obligation to do so.
Engineer A Voluntary Non-Solicitation Self-Binding Honesty Recognition
Voluntary Representation Truthfulness Self-Binding Recognition Capability
Engineer A was required to recognize that his voluntary decision to refrain from soliciting ABC clients — even without a formal no-compete agreement — created a self-imposed ethical obligation of honesty that must be honored precisely because it was voluntarily undertaken.
In the absence of a no-compete agreement, Engineer A voluntarily committed to a non-solicitation period — a voluntary representation that created binding ethical force under NSPE honesty and integrity standards.
Engineer A's voluntary non-solicitation period, which, though not legally required, created an ethical commitment that would be violated by premature solicitation.
Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients, including Clover City for a period of time.
Engineer A Voluntary One-Year Cooling-Off Period Ethical Sufficiency
BER evaluated Engineer A's voluntary one-year waiting period as part of the overall ethical assessment of his departure and post-departure conduct
Cooling-Off Period Sufficiency Assessment Constraint
Engineer A's voluntary decision to wait over one year before competing with ABC for Clover City work — in the absence of any contractual non-compete obligation — was assessed as a relevant positive factor in the ethical evaluation of his post-departure conduct, though the BER noted that the passage of time also reduced the certainty that Clover City would remain interested in Engineer A's services.
Engineer A still declined an apparent offer of work by Clover City, decided not to compete directly with his former employer, ABC, and waited for a period of over a year before deciding to go into competition with his former employer, ABC
Period between Engineer A's departure from ABC and his solicitation of Clover City
Engineer A Voluntary One-Year Solicitation Moratorium Binding Constraint
Engineer A voluntarily chose not to solicit ABC's clients for a period of time after establishing his firm; this voluntary commitment carried binding ethical force as a matter of professional honor.
Voluntary Solicitation Moratorium Self-Binding Ethical Compliance Constraint
Engineer A was ethically bound by his voluntary decision to refrain from soliciting ABC's clients, including Clover City, for the period he had self-imposed — the absence of a formal non-compete agreement did not dissolve this voluntary commitment before its natural expiration.
NSPE Code of Ethics — non-deception and professional honor provisions; BER Case 86-5
From Engineer A's establishment of his independent firm until the expiration of his voluntary moratorium period (approximately one year)
Engineer A Voluntary Six-Month Non-Solicitation Temporal Compliance
Voluntary Non-Solicitation Commitment Temporal Compliance Monitoring Capability
Engineer A possessed the capability to track and honor his voluntary commitment to refrain from soliciting ABC's clients for a defined period, recognizing that the voluntary nature of the commitment created a binding ethical obligation of honesty and integrity.
Engineer A voluntarily refrained from soliciting ABC clients for a period of time after establishing his firm, then began soliciting after approximately one year — requiring temporal tracking of the voluntary commitment period.
Engineer A's refraining from soliciting ABC clients including Clover City for approximately six months to one year after establishing his independent firm, followed by commencement of solicitation after the voluntary period elapsed.
Engineer A Whose Interests Are Being Served Out-of-Scope Work Self-Assessment Constraint
Engineer A's decision to include elevated storage tank funding elements in the ABC report — beyond the contracted scope — required honest self-assessment of whether this initiative was genuinely motivated by client service or by personal interest in positioning for an independent contract.
Whose Interests Are Being Served Self-Assessment Constraint
Engineer A was constrained to affirmatively self-assess whose interests were being served by his out-of-scope elevated storage tank work — specifically whether he was serving ABC's interests, Clover City's interests, or his own personal interest in establishing an independent practice — and was required to refrain from proceeding if that assessment revealed self-serving motivation.
NSPE Code faithful agent provisions; BER Case 05-5 principle
At the time Engineer A performed the out-of-scope elevated storage tank funding analysis
Engineer A declining Clover City's apparent offer before Engineer A soliciting Clover City after one year
Engineer A still declined an apparent offer of work by Clover City... waited for a period of over a year before deciding to go into competition with his former employer, ABC.
Engineer A declining Clover City's apparent offer
Engineer A soliciting Clover City after one year
Engineer A developing the water treatment plant report before Clover City suggesting Engineer A open his own firm
As an employee of ABC, Engineer A developed the report... Clover City is impressed by Engineer A's initiative on this project... Recently, officials in Clover City suggested that Engineer A open his own engineering company.
Engineer A developing the water treatment plant report
Clover City suggesting Engineer A open his own firm
Engineer A establishing his own firm before Engineer A soliciting work from ABC's clients
Six months later, Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients... However, after a year has passed, Engineer A begins soliciting work from ABC's clients.
Engineer A soliciting work from ABC's clients
Engineer A's employment at ABC before Engineer A establishing his own firm
Engineer A's voluntary non-solicitation period during Engineer A operating his own firm
Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients, including Clover City for a period of time. However, after a year has passed, Engineer A begins soliciting work.
Engineer A's voluntary non-solicitation period
Entity1 occurs entirely within the duration of Entity2
Engineers X Y Z Case 86-5 Disclosure Non-Mandatory Prudential Execution
Engineers X, Y, and Z in Case 86-5 chose to disclose the client's interest to their employer before resigning — a prudentially advisable action that was not strictly required — demonstrating the capability to recognize and act on the prudential value of voluntary disclosure.
Case 86-5 comparison used by BER to assess Engineer A's non-disclosure
Engineers X, Y, and Z's disclosure to Engineer A's firm before resigning, which the BER noted as disclosure without seeking consent or concurrence.
the engineers in Case No. 86-5 provided disclosure and did not seek consent or concurrence
In Case No. 86-5... Engineers X, Y, and Z disclose the facts to Engineer A, resign from the firm, and enter into negotiations with the city.
Engineers X Y Z Case 86-5 Pre-Resignation Disclosure Compliance
BER Case 86-5 established that Engineers X, Y, Z disclosed the client's interest to their employer before resigning, which the BER used as a comparator for Engineer A's non-disclosure in the present case
Engineers X, Y, and Z fulfilled the faithful agent conflict disclosure obligation by disclosing to their employer (Engineer A's firm in Case 86-5) that the city client was interested in retaining them independently before resigning, establishing the disclosure-before-resignation pathway as the paradigmatic ethical compliance model for client-initiated departure encouragement situations.
Engineers X, Y, and Z disclose the facts to Engineer A, resign from the firm, and enter into negotiations with the city
Period between city's approach to Engineers X, Y, Z and their resignation from Engineer A's firm
In Case No. 86-5, the three engineers disclosed the fact that the client was interested in their services to their employer before resigning, while in the present case, there is no disclosure between Engineer A and ABC
Established Independent Engineering Firm
departing employee, ABC Engineering Company; founder, new firm
Could be perceived by ABC as motivated by the earlier Clover City overture
Would place Engineer A in potential future competition with ABC for Clover City and other clients
Would require Engineer A to navigate ethical obligations regarding former employer's clients and confidential information
Legitimate exercise of free enterprise rights recognized as a fundamental professional right
NSPE Code does not prohibit engineers from establishing independent firms
No violation of any formal non-compete or contractual obligation to ABC
Avoidance of using confidential or specialized employer knowledge to compete unfairly
Free enterprise and individual professional autonomy
NSPE Code Section III.4.b regarding adversarial positions against former employer
deliberate and considered; six-month delay suggests reflective decision-making
Exercise individual right to free enterprise; establish independent professional practice in a market where Engineer A had strong relationships and competence
Arguable transparency obligation to ABC regarding the circumstances motivating departure
Potential obligation to disclose Clover City's overture before departing, as analogized to Case No. 86-5
Understanding of professional ethics obligations during firm transitions
Six months after Clover City's suggestion; approximately the midpoint of the case timeline
Six months after receiving Clover City's suggestion, Engineer A made the volitional decision to leave ABC Engineering Company and establish his own engineering firm in Clover City. This decision was made without a formal non-compete agreement in place and without prior disclosure to ABC of Clover City's interest in his independent services.
Established Independent Engineering Firm (Action 3) → Self-Imposed Client Solicitation Moratorium (Action 4)
Upon establishing his own firm, Engineer A voluntarily decided not to solicit work from ABC's clients for approximately one year, indicating that the act of firm establishment directly triggered Engineer A's self-regulatory ethical response in the form of the moratorium.
Established Independent Engineering Firm (Action 3)
Without firm establishment there would be no competing interest and no need for a moratorium; alternatively, had a non-compete existed, the moratorium would have been legally mandated rather than voluntary, changing its ethical character entirely
Self-Imposed Client Solicitation Moratorium (Action 4)
Engineer A's awareness that soliciting former employer clients immediately would be ethically problematic
Engineer A's departure from ABC and establishment of a competing firm creating the conflict of interest context
Engineer A's individual ethical judgment and voluntary self-regulation in the absence of a legal non-compete
Firm establishment + ethical awareness of conflict + no external legal constraint + Engineer A's professional conscience = sufficient to produce voluntary moratorium decision
Could blur boundaries of contracted scope and create ambiguity about intellectual ownership
Could create implied expectations of future work for ABC or Engineer A personally
Could elevate Engineer A's personal profile with the client independent of ABC
NSPE Code obligation to act in the client's best interest within the bounds of the engagement
Obligation to serve the public interest through comprehensive infrastructure planning
Obligation to use professional knowledge to benefit the client
Provide comprehensive value to Clover City by addressing a related infrastructure need not originally scoped, thereby strengthening the client relationship
Funding mechanism familiarity for municipal infrastructure
Water treatment and storage infrastructure engineering knowledge
During contract performance, early/ongoing phase
Obligation of transparency to ABC regarding work performed outside contracted scope
Potential obligation to stay within negotiated scope and not unilaterally expand deliverables without employer or client authorization
Engineer A included elevated storage tank content in the water treatment plant expansion report despite this being outside the original contracted scope of work between ABC and Clover City. This was a proactive professional initiative taken without a formal directive or contract covering that work.
Expanded Report Scope Unilaterally (Action 1) → Client Relationship Formed (Event 1) → Clover City Overture Occurs (Event 3)
Engineer A included elevated storage tank content in the water treatment plant expansion report despite it being outside the contracted scope, a decision that elevated his individual visibility and perceived value to Clover City officials, contributing causally to the strong professional relationship and subsequent overture.
Expanded Report Scope Unilaterally (Action 1)
Had Engineer A performed only the contracted scope, Clover City officials would have had less basis to distinguish his individual contribution from ABC's institutional work product; the overture might not have occurred or might have been directed to ABC as a firm rather than Engineer A personally
Clover City's recognition and attribution of the expanded scope to Engineer A personally rather than to ABC
Engineer A's unilateral decision to exceed contracted scope in a manner beneficial to Clover City
The expanded scope providing tangible additional value that distinguished Engineer A's individual contribution
Engineer A (primary); ABC Engineering (contributory for failing to supervise scope boundaries)
Unilateral scope expansion + client attribution to Engineer A personally + demonstrated value beyond contracted deliverable = sufficient to elevate personal relationship and plant seeds of overture
Four Engineers Case 77-11 Specialized Knowledge Restriction Failure
The four engineers in Case 77-11 failed to correctly assess that their specialized knowledge acquired during employment restricted their ability to compete for specific projects, resulting in an NSPE Code violation for those projects.
Case 77-11 precedent used by BER to assess Engineer A's specialized knowledge situation
BER's finding in Case 77-11 that the four engineers violated the NSPE Code with regard to projects for which they had gained specialized knowledge while employed.
Free Enterprise Professional Mobility Framework Active
Throughout the case; baseline condition of professional employment
It is not unusual for engineers, employed by others, at some point, to break off from their employer and go into business for themselves
Engineer A's right to depart ABC and establish an independent firm
Not terminated; persists as the governing baseline
As a general matter, this practice raises no ethical issues for the BER's consideration
The Board can find no general ethical proscription limiting Engineer A's decision to establish an engineering firm
This is a fundamental principle of this nation's free enterprise system and generally should not be discouraged
Engineer A's consideration of establishing an independent engineering practice
Initiated Solicitation of Former Employer Clients
Clover City's interest may have diminished after a year's delay, creating uncertainty about whether solicitation would be successful
Could be perceived by ABC as a breach of loyalty despite the waiting period
Solicitation of Clover City specifically could raise questions about use of relationships developed while at ABC
Would place Engineer A in direct competition with ABC, potentially harming ABC's business
Did not use confidential or specialized technical knowledge from ABC to gain unfair competitive advantage (per BER analysis)
Honored the self-imposed moratorium before soliciting, demonstrating good faith
Legitimate exercise of free enterprise and competitive business rights
No violation of any formal non-compete agreement
Client's right to choose its preferred engineering firm
Fair competition without use of confidential information
Free enterprise and competitive market participation
deliberate and considered; the timing reflects a judgment that sufficient time had elapsed to make solicitation ethically appropriate
Grow the independent firm by competing for clients in the market where Engineer A had established relationships and expertise, including Clover City and other former ABC clients
Arguable ongoing obligation of professional courtesy to ABC, though legally and ethically not binding after reasonable time
Potential tension with NSPE Code Section III.4 spirit regarding adversarial conduct toward former employer, though BER did not find a violation
Business development and client solicitation
Engineering services proposal preparation
Knowledge of Clover City's infrastructure needs (developed through legitimate prior service)
One year after establishing his firm; approximately 18 months after Clover City's initial suggestion
After approximately one year of independent practice during which he honored a self-imposed moratorium, Engineer A made the deliberate decision to begin actively soliciting work from ABC's former clients, including Clover City. This decision initiated direct competition with ABC for clients Engineer A had served while employed there.
Engineer A's self-imposed restriction lapses; solicitation of former ABC clients becomes permissible under Engineer A's own ethical framework; the question of whether this is ethically sufficient becomes the central issue
Approximately 12 months after firm establishment (18 months after leaving ABC)
Approximately one full year passes after Engineer A establishes his independent firm during which he voluntarily refrains from soliciting ABC's former clients. The passage of this self-imposed waiting period is an automatic temporal event that changes Engineer A's self-assessed ethical status regarding client solicitation.
Moratorium Period Elapses (Event 4) + No Non-Compete Agreement Exists (Event 5) → Initiated Solicitation of Former Employer Clients (Action 5) → ABC Client Base Exposed to Competition (Event 6)
After approximately one year of independent practice during which he honored a self-imposed moratorium, Engineer A initiated solicitation of former employer clients; following the moratorium's expiration, Engineer A begins actively soliciting ABC Engineering Company's client base.
Moratorium Period Elapses (Event 4) + No Non-Compete Agreement Exists (Event 5)
Had a non-compete agreement existed, solicitation would have been legally barred regardless of moratorium expiration; had Engineer A extended or made the moratorium permanent, solicitation would not have occurred; had Engineer A not retained client relationship knowledge from ABC, solicitation effectiveness would have been significantly reduced
Initiated Solicitation of Former Employer Clients (Action 5) → ABC Client Base Exposed to Competition (Event 6)
Absence of any non-compete agreement confirming no legal barrier to solicitation
Engineer A's continued operation of a competing firm with capacity and motivation to serve former ABC clients
Engineer A's retained knowledge of ABC's client relationships from his prior employment
Expiration of the self-imposed one-year moratorium period removing Engineer A's self-regulatory constraint
Engineer A (primary); ABC Engineering (contributory)
Moratorium expiration + no legal prohibition + competing firm operational + client relationship knowledge = sufficient set to produce active solicitation and client base exposure
Three-Party Interest Balancing Framework for Engineer Departure Cases
No one can deny that a client has a right to retain the engineering firm of its choice. What must be addressed, however, is a method to effect that right in a manner that is both fair and equitable to all of the concerned parties.
Board of Ethical Review in structuring its analysis of all parties' competing interests
Analytical framework articulated across BER Cases 77-11, 79-10, and 86-5 requiring the Board to balance (1) client's right to retain the firm of its choice, (2) individual engineer's interests, and (3) the firm's interest in maintaining business goodwill — applied directly to Engineer A's situation
National Society of Professional Engineers
NSPE Code of Ethics – Engineer Confidentiality and Loyalty Obligations
Engineer A developed the report by which the city will get funding for the water treatment plant expansion
Those aspects of the report that dealt with the elevated storage tank were not part of the scope of work originally negotiated between ABC and Clover City
Engineer A when leveraging knowledge of Clover City's needs developed during ABC employment
Addresses Engineer A's duty to protect proprietary information and work product developed while employed at ABC (including the water treatment plant report and elevated storage tank sections) when competing for the same client's work after departure
NSPE Code of Ethics – Engineer Solicitation and Competitive Conduct Provisions
Engineer Solicitation and Competition Ethics Standard
Engineer A begins soliciting work from ABC's clients, including Clover City
Clover City is impressed by Engineer A's initiative on this project
Engineer A when soliciting work from Clover City and other ABC clients
Governs how Engineer A may ethically approach Clover City and other former employer clients when soliciting new work, including prohibitions on misleading statements about ABC's capacity and obligations to compete fairly
NSPE Code of Ethics – Post-Employment Client Solicitation Obligations
Post-Employment Client Solicitation Ethics Standard
Engineer A when beginning to solicit ABC's clients including Clover City after one year
Addresses the ethical permissibility of Engineer A soliciting Clover City (a former employer's client) after one year, including whether the absence of a non-compete agreement fully resolves the ethical question or whether professional norms impose additional constraints
NSPE Code of Ethics for Engineers – Sections III.4, III.4.a., III.4.b.
The Code does address some issues that could arise in this context and provides ethical guidance where the engineer considers this business option.
The Code addresses the use of confidential information concerning the technical affairs or processes of the former employer, promotional activities and negotiations for employment or business, and the involvement of the engineer in adversarial situations relating to the former employer. (See NSPE Code Sections III.4., III.4.a., III.4.b.).
Board of Ethical Review in analyzing Engineer A's conduct
Cited as the primary normative authority governing confidential information use, promotional activities, and adversarial situations involving former employers when an engineer departs to establish an independent firm
NSPE Code of Ethics – Provisions Governing Engineer Departure and Competition with Former Employer
Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients, including Clover City for a period of time
Engineer A in deciding whether and when to solicit former employer's clients
Governs Engineer A's ethical obligations when leaving ABC Engineering to establish an independent firm, including the balance between individual initiative, client rights, and employer goodwill; addresses whether soliciting ABC's clients (including Clover City) after departure is ethically permissible absent a non-compete agreement
Engineer A and ethics reviewers assessing the overall ethical permissibility of Engineer A's actions
Primary normative authority for evaluating all aspects of Engineer A's conduct: departure from ABC, establishment of competing firm, and solicitation of former employer's clients including Clover City
Legal enforcement mechanism for protecting ABC's client base is absent; ethical obligations under NSPE Code become the primary, and only, operative constraint on Engineer A's post-departure conduct
Throughout employment and at time of departure (pre-existing condition)
It is established as a background fact that no non-compete agreement was ever executed between Engineer A and ABC Engineering Company. This absence is a legally and ethically significant condition that shapes the entire analysis of Engineer A's post-departure conduct.
Professional Norms Governing Post-Employment Client Solicitation
Board of Ethical Review in analyzing the second issue regarding Engineer A's solicitation of business
Applied to evaluate the ethical permissibility of Engineer A's eventual solicitation of Clover City (a major former client of ABC) after departing, including the significance of the client's independent interest in Engineer A's services and the absence of misrepresentation
Was it ethical for Engineer A to establish his own firm in Clover City?
Was Engineer A's unilateral expansion of the water treatment report to include elevated storage tank funding — work outside the agreed scope — a self-serving act designed to position himself for future independent contracts, and if so, does that motivation violate his faithful agent obligation to ABC even if the client benefited?
Did Engineer A's failure to disclose to ABC that Clover City officials had already expressed interest in retaining him independently — while he was still employed by ABC and actively working on Clover City's project — constitute a breach of his faithful agent duty, regardless of whether such disclosure was legally required?
Does Clover City's informal pre-departure signal of intent to award Engineer A the elevated storage tank design contract and a retainer create an appearance of impropriety — or even a corrupt inducement — that neither the Board nor the parties adequately examined, and should that signal have disqualified Engineer A from receiving those contracts even after establishing his independent firm?
After Engineer A departs and begins soliciting ABC's clients, is he ethically permitted to leverage the elevated storage tank work he performed while employed at ABC as a credential or differentiator in his solicitations, or does the proprietary and out-of-scope nature of that work impose a perpetual non-exploitation constraint on how he represents that experience?
Was it ethical for Engineer A to begin soliciting work from ABC’s clients, including Clover City, after a year had passed?
Does the Faithful Agent Obligation — requiring Engineer A to act in ABC's interests during employment — conflict with Client Autonomy, given that Clover City's suggestion that Engineer A open an independent firm effectively invited him to redirect his professional loyalty while still under ABC's employ?
Does the principle of Free and Open Competition — which permits Engineer A to solicit ABC's clients after his voluntary moratorium — conflict with the Post-Employment Confidential Information Non-Use principle, given that Engineer A's competitive advantage with Clover City derives substantially from knowledge, relationships, and work product developed exclusively during his ABC employment?
Does the Voluntary Non-Solicitation Period principle — which the Board treats as ethically sufficient to protect ABC's interests — conflict with the Faithful Agent Obligation principle, insofar as Engineer A's pre-departure non-disclosure of Clover City's overture may have deprived ABC of the opportunity to take protective measures during the very period when the moratorium was supposed to provide cover?
Does the Tripartite Interest Balancing principle — which requires weighing ABC's, Engineer A's, and Clover City's interests simultaneously — conflict with the Client Autonomy principle invoked for Clover City's service provider selection, given that privileging Clover City's preference for Engineer A systematically disadvantages ABC without any mechanism for ABC to contest or respond to the city's pre-departure overture?
From a deontological perspective, did Engineer A fulfill their duty as a faithful agent to ABC Engineering Company by withholding Clover City's overture to establish an independent firm, given that the overture arose directly from work performed during active ABC employment?
From a consequentialist perspective, did Engineer A's voluntary one-year solicitation moratorium produce sufficiently good outcomes for ABC Engineering Company, Clover City, and the broader engineering profession to justify the competitive disadvantage it imposed on Engineer A's new firm during that period?
From a virtue ethics perspective, did Engineer A demonstrate professional integrity by expanding the water treatment report to include elevated storage tank funding elements without a separate contract, given that this out-of-scope initiative directly contributed to Clover City's favorable impression and subsequent offer of independent work?
From a deontological perspective, does the absence of a written non-compete agreement between Engineer A and ABC Engineering Company eliminate all ethical obligations Engineer A owed to ABC upon departure, or do duties of loyalty and confidentiality persist independently of contractual enforcement mechanisms?
Would the Board have reached a different conclusion on the ethics of Engineer A's departure if Engineer A had been a partner or principal at ABC Engineering Company rather than a staff engineer, given that the Board explicitly treated Engineer A's non-principal status as a mitigating factor?
What if Engineer A had disclosed Clover City's overture to ABC management before resigning — would that disclosure have resolved the faithful agent tension identified by the Board, and would it have altered ABC's ability to protect its client relationship with Clover City?
Would the Board's conclusion on post-departure solicitation have changed if Engineer A had begun soliciting ABC's clients immediately after resigning rather than waiting a year, and does the voluntary moratorium function as an ethical threshold below which solicitation would be impermissible even absent a non-compete agreement?
What if Engineer A had immediately accepted Clover City's informal offer of a retainer and the elevated storage tank design contract while still employed at ABC — would the Board have found that conduct to violate the faithful agent obligation, and how would that finding interact with the fact that the tank work was outside ABC's contracted scope?
Contract formally concluded; Clover City now holds the report; ABC has been compensated; Engineer A's expanded scope work is now part of the official deliverable record
End of contract period, prior to Clover City overture
Clover City pays ABC Engineering Company for the completed water treatment plant expansion report, including the elevated storage tank section prepared outside the original scope by Engineer A. The transaction formally closes the contracted work and validates Engineer A's expanded contribution.
Self-Imposed Client Solicitation Moratorium
founder and principal, new engineering firm
Delayed potential revenue from Clover City and other ABC clients
Established a personal ethical standard that would eventually expire, requiring a subsequent decision about when to begin soliciting
Risk that Clover City's interest in Engineer A's services might diminish over time
Avoidance of conduct that could be construed as exploiting the former employer's client relationships immediately upon departure
Demonstrated good faith in the professional transition
Spirit of fair dealing with former employer ABC (NSPE Code Section III.4)
NSPE Code Section III.4 spirit of loyalty and fair conduct
Respect for former employer's business goodwill
Voluntary ethical restraint beyond minimum legal requirements
deliberate and self-regulatory; a voluntary ethical restraint
Demonstrate fair dealing toward ABC by not immediately competing for its clients; allow a reasonable transition period before entering direct competition; reduce the appearance that his departure was motivated by poaching ABC's client base
Ability to develop alternative client sources during the moratorium period
Business judgment about competitive timing
Ethical reasoning about professional obligations
At the time of firm establishment; covering the first year of independent practice
Upon establishing his own firm, Engineer A voluntarily decided not to solicit work from ABC's clients, including Clover City, for a self-imposed period of time. This restraint was not legally required by any non-compete agreement but represented Engineer A's own ethical judgment about fair dealing with his former employer.
Voluntary Solicitation Moratorium State - Engineer A
From establishment of Engineer A's new firm through approximately one year later when solicitation begins
Voluntary Self-Imposed Solicitation Moratorium State
Engineer A's voluntary decision to refrain from soliciting ABC's clients, including Clover City, for an unspecified period after establishing his own firm
Engineer A begins soliciting work from ABC's clients including Clover City after approximately one year
Engineer A's decision to establish his own firm while voluntarily refraining from soliciting ABC's clients
{'case_reference': 'BER Case No. 79-10', 'employer_status': 'Winding down operations', 'concurrence_sought': 'No'}
An engineer employed by a firm winding down its operations who sought to offer services to complete projects under his own responsibility and risk without the concurrence of the firm's principal; found to be ethical
{'type': 'former_employer', 'target': 'Winding-Down Firm Case 79-10'}
Winding-Down Firm Staff Engineer Seeking Independent Project Completion
an engineer employed by a firm that was winding down its operations, who sought to offer his services to complete projects under his own responsibility and risk without the concurrence of the principal of his employing firm, was ethical
ABC would remain unaware of a potential conflict of interest developing with a major client
Engineer A's departure, when it occurred, might appear to ABC as motivated by the client relationship even if it was not
The non-disclosure could later be viewed as a breach of loyalty or transparency obligations
Engineer A did not immediately act on the overture, avoiding immediate conflict of interest
No formal legal or contractual obligation to disclose was violated, as no non-compete agreement existed
Transparency in professional relationships
deliberate omission; Engineer A chose not to act on or disclose the overture at that time
Preserve optionality for future career decisions without prematurely triggering conflict with ABC or foreclosing the possibility of independent practice
Professional judgment about conflict of interest management
Understanding of ethical obligations during employment transition
At the time Clover City officials made their suggestion, approximately six months before Engineer A established his firm
NSPE Code Section III.4 obligation of loyalty and fair dealing with the employer
Spirit of the disclosure standard illustrated in Case No. 86-5, where engineers informed their employer before acting
Transparency obligation to employer regarding matters that could affect the firm's client relationships
When Clover City officials suggested Engineer A open his own firm and hinted at a retainer contract and elevated storage tank design work, Engineer A did not disclose this overture to ABC Engineering Company. Unlike the engineers in Case No. 86-5, Engineer A made no effort to inform his employer of the client's interest in his independent services.
Withheld Client Overture from ABC (Action 2) → Established Independent Engineering Firm (Action 3)
When Clover City officials suggested Engineer A open his own firm and hinted at a retainer contract, Engineer A withheld this information from ABC, preserving the opportunity for himself and enabling his subsequent volitional decision to leave and establish an independent firm six months later.
Withheld Client Overture from ABC (Action 2)
Had Engineer A disclosed the overture to ABC, ABC may have reassigned the client relationship, negotiated directly with Clover City, or taken steps that would have eliminated or complicated the economic foundation for Engineer A's independent firm; firm establishment may still have occurred but without the Clover City anchor client prospect
Absence of a non-compete agreement removing a legal barrier to departure
Engineer A's decision to conceal the overture rather than disclose it to ABC
Existence of a prospective client relationship (Clover City retainer hint) as economic foundation for independent practice
Receipt of Clover City overture by Engineer A while still employed at ABC
Concealed overture + prospective retainer client + no non-compete agreement + Engineer A's entrepreneurial intent = sufficient set to enable and motivate firm establishment
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.87
The Board found Engineer A's conduct ethical by applying the tripartite framework and concluding that all three interests were given meaningful weight — the client's interest in Engineer A's services, the engineer's mobility right, and the firm's goodwill interest were all respected
The balance favors permissibility of Engineer A's departure and eventual solicitation given client initiation, absence of no-compete agreement, and voluntary non-solicitation period, subject to confidentiality constraints
source_field=tensionresolution; confidence=0.84
Competition is permissible; confidentiality and honesty constraints govern the manner of competition
source_field=tensionresolution; confidence=0.86
Engineer A satisfied the faithful agent obligation by declining the immediate offer and not entering any formal pre-departure agreement with Clover City
source_field=tensionresolution; confidence=0.88
The faithful agent obligation supports disclosure of Clover City's solicitation to ABC; the client-initiated nature of the solicitation and Engineer A's eventual voluntary non-solicitation period partially mitigate the non-disclosure
source_field=tensionresolution; confidence=0.91
Client initiation substantially reduces Engineer A's ethical culpability for the departure; remaining obligations focus on manner of transition and confidentiality
The Board found non-disclosure not ethically significant because: (1) disclosure in Case 86-5 did not require consent; and (2) Engineer A's departure was independently motivated, not driven by a pre-arranged client relationship
source_field=tensionresolution; confidence=0.82
The ethical analysis must distinguish between legitimate professional initiative that incidentally benefits the engineer's reputation and self-serving conduct that exploits the advisory relationship
source_field=tensionresolution; confidence=0.8
Client may legitimately consider Engineer A's demonstrated expertise in procurement, but must not award the contract as a quid pro quo for the speculative work
source_field=tensionresolution; confidence=0.92
Departure right is affirmed; ethical obligations govern the manner of departure and post-departure conduct, not the departure itself
Defeasibility edge from constraintstatement
source_field=constraintstatement; confidence=0.83
Clover City's professional relationship with ABC Engineering Company was found to be attributable solely to Engineer A's presence in the firm rather than to ABC as an institution, reducing the ethical weight of ABC's goodwill interest in retaining Clover City as a client and supporting the permissibility of Engineer A's post-departure solicitation of Clover City.
The Board used Engineer A's staff status as a factor supporting the ethical permissibility of his conduct, implicitly recognizing that partners or principals would face more stringent obligations in the same circumstances
Client autonomy supports permissibility of the departure arrangement; the manner of transition must still respect ABC's legitimate interests
source_field=tensionresolution; confidence=0.85
source_field=tensionresolution; confidence=0.9
The Board found no ethical proscription against the departure itself, focusing analysis on the conduct surrounding the departure rather than the departure decision
source_field=tensionresolution; confidence=0.83
source_field=tensionresolution; confidence=0.81
The Board found no confidential information violation because Engineer A's expertise was general professional competence rather than firm-specific proprietary knowledge
source_field=tensionresolution; confidence=0.93
Competitive freedom prevails for general solicitation; confidentiality constraint applies to specific proprietary information from ABC engagements
The Board found the specialized knowledge constraint inapplicable because Engineer A's water treatment expertise was general professional competence, not firm-specific proprietary knowledge — distinguishing the present case from Case 77-11
General professional expertise may be applied; specific confidential information from ABC engagements may not be exploited
Voluntary restraint is ethically commendable but not indefinitely required; solicitation after one year is permissible absent confidentiality violations
The Board found Engineer A's competition permissible because no specialized knowledge constraint applied and no contractual no-compete existed
source_field=tensionresolution; confidence=0.89
The Board distinguished the present case from Case 77-11 (no specialized knowledge) and from Case 86-5 (non-disclosure not significant given independent motivation), reaching a finding of ethical conduct
source_field=constraintstatement; confidence=0.82
Engineer A was constrained from relying upon or structuring business expectations around Clover City officials' informal indication that they would award his new firm the elevated storage tank design contract and a retainer — such informal promises were ethically void and required competitive procurement.
The voluntary restraint was found to be supererogatory conduct that supported the ethical permissibility of Engineer A's eventual competition with ABC
disclosure by Engineers X, Y, and Z to employer before Engineers X, Y, and Z resigning from firm (Case No. 86-5)
the three engineers disclosed the fact that the client was interested in their services to their employer before resigning
disclosure by Engineers X, Y, and Z to employer
Engineers X, Y, and Z resigning from firm (Case No. 86-5)
elevated storage tank section of report during ABC contract with Clover City for water treatment plant report
ABC is currently under contract with Clover City for the preparation of a report on an expansion of the city's water treatment plant... The report included a part dealing with funding for an elevated storage tank. Those aspects of the report that dealt with the elevated storage tank were not part of the scope of work originally negotiated.
The BER explicitly balanced (1) Clover City's interest in retaining Engineer A's services, (2) Engineer A's interest in professional autonomy and independent practice, and (3) ABC Engineering's interest in maintaining business goodwill — co
The ethical evaluation of Engineer A's departure from ABC to establish an independent firm must balance: (1) Clover City's interest in retaining Engineer A whose work it found exceptional; (2) Engineer A's interest in professional autonomy
The Board explicitly noted that Engineer A was an employee of ABC and not a partner or principal of the firm, treating this role distinction as a factor supporting the permissibility of his departure conduct and reducing the stringency of a
Engineer A's out-of-scope work on the elevated storage tank must be evaluated for whether it was genuinely in ABC's and Clover City's interest or whether it was structured to create a dependency that would advantage his subsequent independe
Engineer A's out-of-scope work on the elevated storage tank portion of the water treatment report — performed without a separate contract — does not create an ethical entitlement to the subsequent elevated storage tank design contract; Clov
The BER systematically compared the present case with Cases 77-11, 79-10, and 86-5, identifying material factual differences — including the specialized knowledge issue from 77-11, the disclosure difference from 86-5, and the independent mo
The BER affirmed that Engineer A's eventual solicitation of Clover City's business after the voluntary waiting period was within the bounds of free and open competition — no contractual or ethical prohibition prevented him from competing fo
The BER affirmed that Engineer A's decision to break off from ABC Engineering and establish his own firm raises no general ethical proscription, grounding this in the fundamental principle of free enterprise and engineer mobility
Engineer A's failure to disclose Clover City's solicitation to ABC was not necessarily an ethical violation, but voluntary disclosure would have been prudentially advisable to preserve his professional relationship with ABC and avoid the ap
The BER's observation that Engineer A did not disclose Clover City's interest to ABC — while finding this not ethically required — implicitly recognizes that such disclosure would have been prudentially advisable to protect Engineer A's rel
Unlike Case 86-5 where Engineers X, Y, Z disclosed client interest to their employer before departing, Engineer A made no such disclosure to ABC — yet the Board found this non-disclosure not ethically significant because Engineer A's depart
Engineer A voluntarily refrained from soliciting ABC's clients, including Clover City, for approximately six months to over a year after establishing his own firm — a voluntary restraint not required by any contractual obligation but reflec
Clover City's suggestion that Engineer A open his own firm and its indication that it would consider retaining him independently is an exercise of the client's fundamental right to select the engineering service provider of its choice
Engineer A's voluntary decision to refrain from soliciting ABC's clients, including Clover City, for approximately six months following his departure demonstrates professional integrity and good faith toward ABC, reflecting a higher standar
Engineer A may not exploit ABC's proprietary water treatment plant expansion report content, client-specific data, or confidential project information developed during his employment at ABC to gain competitive advantage in soliciting Clover
Engineer A's solicitation of ABC's clients, including Clover City, after one year is permissible under the principle of competitive employment freedom, provided he does not exploit confidential or proprietary information developed during hi
Engineer A's right to depart ABC and establish an independent firm is the reciprocal of ABC's right to terminate Engineer A's employment; the absence of a no-compete agreement confirms that departure itself is not ethically impermissible
Engineer A's solicitation of Clover City and other former ABC clients after one year is presumptively permissible under the principle of free and open competition, given the absence of a no-compete agreement and the passage of a reasonable
The BER found that unlike Case 77-11, Engineer A did not obtain particular specialized knowledge as an employee of ABC that would restrict his ability to establish his own firm and compete — the absence of this constraint was a key factor s
Because Clover City — not Engineer A — initiated the suggestion that Engineer A open his own firm, the moral responsibility for any disruption to ABC's client relationship shifts substantially toward Clover City, and Engineer A's culpabilit
The BER recognized Clover City's fundamental right to retain the engineering firm or individual of its choice, including Engineer A specifically, while requiring that the method of effecting this right be fair and equitable to all parties
Engineer A's initial declination of Clover City's apparent offer of work while still employed at ABC reflects the faithful agent obligation — he did not exploit his client relationship to arrange post-departure business while still serving
While employed at ABC, Engineer A owed faithful service to ABC as his employer; the question of whether his non-disclosure of Clover City's solicitation and his out-of-scope elevated storage tank work constituted a breach of this obligation
The BER's reference to NSPE Code Sections III.4., III.4.a., III.4.b. and the specialized knowledge analysis implicitly invoked the prohibition on using confidential information from a former employer — finding this prohibition inapplicable
While still employed at ABC, Engineer A was obligated to decline Clover City's apparent offer of independent work; he fulfilled this obligation by declining the offer and not accepting independent work until after formally departing from AB
Engineer A was obligated to act as a faithful agent of ABC Engineering Company throughout his employment, including during the period when Clover City officials suggested he open an independent firm, refraining from allowing that solicitati
While employed at ABC, Engineer A was obligated to act as a faithful agent of ABC, serving its interests loyally — including by declining Clover City's offer of independent work while still employed and not actively diverting ABC's client r
Engineer A was obligated to ensure that his out-of-scope work on the elevated storage tank portion of the water treatment report was genuinely motivated by the interests of ABC and Clover City rather than by his own commercial interest in p
Engineer A was obligated to recognize and acknowledge that his out-of-scope, speculative work on the elevated storage tank portion of the water treatment report — performed without a separate contract — did not create an entitlement to the
Engineer A was obligated to recognize that his out-of-scope work on the elevated storage tank portion of the water treatment report — performed without a separate contract — did not create an entitlement to subsequent contract awards from C
Engineer A was obligated, when soliciting the elevated storage tank design contract independently, to accurately attribute the elevated storage tank funding work to his role as an ABC employee rather than presenting it as independent work
Engineer A was obligated to assess whether he had acquired specialized knowledge during his employment at ABC Engineering that would constrain his ability to compete for Clover City's work after departure; the BER found that no such special
The BER was obligated to recognize that Engineer A's decision to depart ABC and establish an independent firm raised no general ethical proscription, and that any ethical constraints must be grounded in specific NSPE Code provisions rather
The ethical evaluation of Engineer A's departure conduct was obligated to account for his role as a staff employee rather than a partner or principal of ABC, applying less stringent departure constraints appropriate to his employment status
Engineer A was obligated to ensure that his departure from ABC was independently motivated by legitimate professional factors rather than primarily driven by Clover City's solicitation; the BER found that his departure clearly appeared to b
Engineer A was obligated, upon receiving Clover City's suggestion that he open an independent firm, to refrain from concealing this material conflict of interest from ABC while continuing to serve as ABC's faithful agent on the Clover City
Engineer A was not strictly required to disclose Clover City's solicitation to ABC before departing, but voluntary disclosure — as demonstrated by Engineers X, Y, and Z in Case 86-5 — would have been prudentially advisable; the BER found th
Engineer A was obligated to weigh whether to disclose Clover City's suggestion that he open an independent firm to his employer ABC Engineering Company, recognizing that voluntary disclosure would have been prudentially advisable to protect
Engineer A was obligated to honor his voluntary commitment to refrain from soliciting ABC's clients, including Clover City, for the period he had set for himself following departure, recognizing that this voluntary undertaking — though not
Engineer A voluntarily refrained from soliciting ABC's clients, including Clover City, for approximately six months to over a year after establishing his independent firm, fulfilling the voluntary non-solicitation commitment he had undertak
After the voluntary non-solicitation period elapsed, Engineer A was ethically permitted to solicit Clover City's business, provided he did so honestly, without exploiting confidential information from ABC, and without disparaging ABC's capa
Engineer A was obligated, when soliciting Clover City and other ABC clients after one year, to conduct that solicitation honestly, without misrepresentation of ABC's capabilities, without exploitation of confidential information, and withou
Engineer A was obligated to refrain from exploiting the specific proprietary content, client-specific data, and confidential information contained in the ABC-developed water treatment plant expansion report when soliciting or performing ind
Engineer A was obligated to continue protecting the confidential content of the ABC water treatment plant expansion report after departing ABC, recognizing that the termination of his employment did not extinguish his duty to protect propri
Engineer A was obligated to refrain from exploiting ABC's proprietary water treatment plant expansion report content, client-specific data, or confidential project information when competing for Clover City's work after departure from ABC.
Engineer A was obligated, when soliciting Clover City and other former ABC clients after one year, to conduct that solicitation honestly and without misrepresentation or disparagement of ABC Engineering Company's capabilities, capacity, or
Engineers X, Y, and Z fulfilled the prudential disclosure obligation by disclosing to their employer (Engineer A's firm) that the city client was interested in their independent services before resigning — demonstrating the preferred practi
The four engineers who departed their firm in Case 77-11 were obligated to refrain from competing for projects on which they had gained specialized knowledge during employment; they violated this obligation by competing for such projects wi
The ethical evaluation of Engineer A's departure conduct required balancing: (1) Clover City's interest in retaining Engineer A's services; (2) Engineer A's interest in professional autonomy and establishing independent practice; and (3) AB
ABC Firm Principal Losing Staff to Client-Initiated Departure
{'firm_type': 'Private engineering firm', 'client_relationship': "Clover City was a major client whose business was tied to Engineer A's presence", 'non_compete_agreement': 'None in place with Engineer A'}
Principal of ABC engineering firm whose staff engineer (Engineer A) was solicited by major client Clover City and eventually departed to establish a competing firm, with no disclosure from Engineer A prior to departure
{'type': 'client', 'target': 'Clover City Municipal Client'}
{'type': 'former_employee', 'target': 'Engineer A Non-Disclosing Client-Solicited Departing Staff Engineer'}
ABC's business with Clover City was related strictly to the presence of Engineer A in the firm
There was no formal written agreement between Engineer A and ABC
there is no disclosure between Engineer A and ABC
Clover City Municipal Engineering Client
{'current_contractor': 'ABC Engineering Company', 'proposed_future_contractor': "Engineer A's new firm", 'contracts_offered': ['city retainer contract', 'elevated storage tank design contract']}
Clover City is the municipal client that retained ABC Engineering Company for the water treatment plant expansion report, paid for the completed report, and then encouraged Engineer A to form his own firm with promises of future contracts — effectively initiating Engineer A's departure from ABC.
{'type': 'client_of', 'target': 'ABC Engineering Company'}
{'type': 'prospective_client_of', 'target': "Engineer A's new firm"}
{'type': 'solicits_departure_of', 'target': 'Engineer A'}
ABC is currently under contract with Clover City for the preparation of a report on an expansion of the city's water treatment plant
The city indicates that it would consider a city retainer contract and also a contract for the design of the elevated storage tank
officials in Clover City suggested that Engineer A open his own engineering company in Clover City
Clover City Officials Informal Pre-Award Tank Contract Promise Non-Reliance Constraint
Clover City officials informally indicated they would award Engineer A's new firm a retainer and the elevated storage tank design contract; Engineer A could not ethically rely on this informal promise as a substitute for competitive procurement.
Verbal Procurement Promise Non-Reliance Constraint
From the time Clover City officials indicated their intent to award contracts to Engineer A's new firm
Engineer A Client-Suggested Independent Firm Founder
{'inducement': 'City retainer contract and elevated storage tank design contract', 'inducing_party': 'Clover City officials', 'current_employer': 'ABC Engineering Company'}
Clover City officials suggested Engineer A open his own engineering company, indicating they would consider a retainer contract and a contract for the elevated storage tank design. Engineer A is in a position of conflict between loyalty to ABC and the opportunity offered by the city.
{'type': 'employed_by', 'target': 'ABC Engineering Company'}
{'type': 'potential_conflict_with', 'target': 'ABC Engineering Company'}
{'type': 'solicited_by', 'target': 'Clover City'}
Client-Suggested Independent Firm Founder Engineer
Engineer A Clover City Relationship Individual-Tied Attribution Mitigation
BER found that Clover City's interest in ABC's services was tied exclusively to Engineer A, not to ABC as a firm, mitigating the ethical concern about Engineer A's post-departure competition
Client-Relationship-to-Individual Attribution Departure Ethical Mitigation Constraint
NSPE BER analysis of tripartite interests
Although Clover City was a major client of ABC, under the facts it appears that ABC's business with Clover City was related strictly to the presence of Engineer A in the firm
Assessment of Engineer A's post-departure solicitation of Clover City
There does not appear to be any indication that Clover City's interest in ABC's services goes beyond the services provided by Engineer A
ABC Engineering Company Employer Losing Engineer to Client Suggestion
{'affected_client': 'Clover City', 'departing_engineer': 'Engineer A', 'no_compete_agreement': False}
ABC Engineering Company is the employer whose key engineer (Engineer A) is being encouraged by a major client (Clover City) to leave and form an independent competing firm, potentially losing both the employee and the client relationship.
{'type': 'at_risk_of_losing_client', 'target': 'Clover City'}
{'type': 'contracted_with', 'target': 'Clover City'}
{'type': 'employs', 'target': 'Engineer A'}
Engineer A currently works for ABC Engineering Company
ABC is currently under contract with Clover City
At-Will Professional Mobility State - Engineer A
From Engineer A's decision to establish his own firm onward
Engineer A's legal and ethical freedom to depart ABC and establish an independent firm in the absence of contractual restrictions
Not terminated; persists as the baseline ethical framework for evaluating post-employment conduct
Engineer A's decision to establish his own engineering company in Clover City
Client Autonomy Invoked for Clover City Service Provider Selection
Clover City's decision to seek Engineer A's independent services after learning he authored the water treatment report
Faithful Agent Obligation Within Ethical Limits
Tripartite Interest Balancing in Engineer Departure Scenarios
Client autonomy is a legitimate interest that must be given meaningful weight in the ethical analysis, but it does not override the incumbent firm's legitimate interests or permit the client to orchestrate departures in ways that are unfair to the firm
Client Autonomy in Engineering Service Provider Selection
The Board gave meaningful weight to Clover City's autonomy interest while requiring that the manner of effecting it be fair and equitable — Engineer A's voluntary waiting period and independent motivation satisfied this requirement
Clover City Engineer Independence Encouragement State
From the moment city officials make the suggestion through Engineer A's decision to establish his own firm
City-Initiated Engineer Independence Encouragement State
Clover City officials' suggestion that Engineer A open an independent firm and their signal of intent to award contracts
Engineer A's decision to establish his own firm six months later, combined with voluntary moratorium on solicitation
Clover City officials suggest Engineer A open his own engineering company and indicate willingness to offer retainer and design contracts
{'client_type': 'Municipal government', 'relationship_basis': "Business relationship with ABC attributable solely to Engineer A's presence", 'formal_agreement_with_engineer_a': 'None at time of solicitation'}
Municipal client of ABC engineering firm that expressed interest in retaining Engineer A independently after learning his work was the basis of the firm's services, approached Engineer A directly, and whose right to retain the engineer of its choice was central to the Board's analysis
{'type': 'current_contractor', 'target': 'ABC Engineering Firm'}
{'type': 'prospective_contractor', 'target': 'Engineer A Non-Disclosing Client-Solicited Departing Staff Engineer'}
No one can deny that a client has a right to retain the engineering firm of its choice
it appears that ABC's business with Clover City was related strictly to the presence of Engineer A in the firm
the client, Clover City, is favorably disposed towards establishing a contractual relationship with Engineer A
Clover City Relationship Tied Exclusively to Engineer A Not ABC Firm
Throughout the period of ABC's engagement with Clover City and evaluated at time of Engineer A's departure
Client Relationship Tied to Individual Engineer Rather Than Firm State
Clover City's professional relationship with ABC, found to be attributable solely to Engineer A's presence rather than to ABC as an institution
Not terminated; historical factual finding
Board's factual finding that Clover City's interest in ABC was exclusively tied to Engineer A
Engineer A Pre-Departure Non-Disclosure of Clover City Interest to ABC
From the point Clover City expressed interest in Engineer A's independent services through Engineer A's departure from ABC
Pre-Departure Client Interest Non-Disclosure State
Engineer A's failure to disclose Clover City's expressed interest in his independent services to ABC before resigning
Engineer A's departure from ABC; Board's determination that non-disclosure was not ethically significant given independent departure motivation
the Board does not consider this to be particularly significant because... Engineer A's decision to depart from ABC and establish his own firm clearly appears to be motivated by factors independent from any relationship that Engineer A might be developing with Clover City
Clover City's expression of interest in Engineer A's independent services while he was still employed at ABC
Engineer A Voluntary One-Year Solicitation Moratorium
From Engineer A's departure from ABC through the approximately one-year waiting period
Engineer A's voluntary decision to wait over one year before competing with ABC for Clover City work
Expiration of the self-imposed waiting period; Engineer A's decision to solicit Clover City
Engineer A's decision to decline Clover City's apparent offer and wait before competing
Engineers X Y Z Client-Solicited Departing Staff Engineers Case 86-5
{'license': 'Professional Engineers', 'disclosure_made': "Yes — disclosed client's interest to employer before resigning", 'case_reference': 'BER Case No. 86-5'}
Three staff engineers at Engineer A's firm in Case 86-5 who developed a proposal for the city, were then approached by the city to work independently, disclosed this to their employer before resigning, and entered into independent negotiations with the city
{'type': 'client', 'target': 'City Client Case 86-5'}
{'type': 'former_employer', 'target': 'Engineer A Firm Principal Case 86-5'}
Client-Solicited Departing Staff Engineer
the Board concluded that a strict interpretation of the Code under the facts of this case led to the conclusion that it would be ethical for Engineers X, Y, and Z to agree to a contract for consulting services independent of Engineer A's firm
{'case_reference': 'BER Case No. 77-11', 'specialized_knowledge_violation': 'Yes — violated Code regarding projects for which specialized knowledge was gained during employment'}
Four engineers who left a firm, founded a new competing firm, and contacted former clients; found not in violation for client contact generally but found in violation for projects involving specialized knowledge gained during employment
{'type': 'former_employer', 'target': 'Prior Firm Case 77-11'}
Departing Engineer Starting Competing Firm
four engineers who left the employ of a firm, founded a new firm, and contacted the clients of the former firm were not in violation of the NSPE Code for doing so
the four engineers did violate the NSPE Code with regard to projects for which they had gained specialized knowledge while in the employ of the firm
Free Competition Framework Active - Engineer A Post-Departure
From Engineer A's departure from ABC onward, particularly once the voluntary moratorium expires
Free and Open Competition Legal Framework Active State
The legal and ethical framework permitting Engineer A to compete for engineering work, including from former employer's clients, in the absence of contractual restrictions
Not terminated; persists as background legal framework
Engineer A establishes independent firm and voluntary moratorium expires, enabling open competition
Free and Open Competition Framework Governing Engineer A's Post-Departure Conduct
The legal and ethical environment governing Engineer A's right to compete for Clover City contracts after departing ABC
Engineer A's establishment of an independent firm and eventual solicitation of Clover City
Informal Pre-Award Commitment for Tank Design State
From city officials' suggestion through any formal procurement process that may follow Engineer A establishing his firm
Informal Pre-Award Selection Commitment State
Clover City's informal signal of intent to award Engineer A's new firm the elevated storage tank design contract and a retainer
Formal competitive procurement process initiated, or Engineer A declines to pursue the work
City officials indicate they would consider awarding retainer and tank design contracts to Engineer A's prospective new firm
No Written Non-Compete Agreement Between Engineer A and ABC
From Engineer A's departure from ABC through the period of competition for Clover City contracts
Engineer A's post-employment competitive conduct relative to ABC Engineering
Not terminated within the case facts; persists as the governing framework
Engineer A's departure from ABC without any written non-compete or restrictive covenant
No Written Non-Compete Agreement State - Engineer A and ABC
Throughout Engineer A's employment at ABC and continuing after departure
Absence of any formal written non-compete or non-solicitation agreement between Engineer A and ABC Engineering Company
Not terminated; persists as a background legal and ethical condition
Engineer A's employment at ABC without execution of a non-compete agreement
Post-Employment Client Solicitation State - Engineer A
From approximately one year after Engineer A establishes his firm, when solicitation of ABC's clients begins
Continuing Post-Termination Loyalty Obligation State
Engineer A's post-departure solicitation of ABC's clients, including Clover City, after the voluntary moratorium period expires
Not yet terminated; active ethical question at time of case analysis
Engineer A begins actively soliciting work from ABC's clients including Clover City after the self-imposed moratorium period
Three-Party Interest Balancing in Engineer A Departure from ABC
From Engineer A's departure through the Board's ethical determination
Three-Party Engineer Departure Interest Balancing State
The ethical evaluation framework applied to Engineer A's departure from ABC and subsequent competition for Clover City
Board's conclusion that Engineer A's conduct was ethical
Engineer A's departure from ABC and establishment of an independent firm
Client Autonomy Invoked for Clover City Suggestion to Engineer A
Clover City's indication of willingness to award retainer and elevated storage tank design contracts
Clover City's suggestion that Engineer A establish independent practice
Clover City's exercise of client autonomy shifts moral responsibility for any disruption to ABC's client relationship substantially toward Clover City; Engineer A's acceptance of the invitation is correspondingly less culpable
officials in Clover City suggested that Engineer A open his own engineering company in Clover City. The city indicates that it would consider a city retainer contract and also a contract for the design of the elevated storage tank.
Comparative Case Precedent Distinguishing Applied Across Cases 77-11 86-5 79-10
BER's ethical analysis of Engineer A's departure and competition conduct
The BER systematically compared the present case with Cases 77-11, 79-10, and 86-5, identifying material factual differences — including the specialized knowledge issue from 77-11, the disclosure difference from 86-5, and the independent motivation distinction — to calibrate the applicable ethical obligations
Ethical reasoning in departure cases requires careful comparison with analogous precedents, identifying which factual differences are material to the ethical outcome and explaining how those differences alter the applicable obligations
Engineer A ABC Employee Water Treatment Report Developer
Comparative Case Precedent Distinguishing Obligation
In Case No. 77-11 , the Board found that four engineers who left the employ of a firm, founded a new firm, and contacted the clients of the former firm were not in violation of the NSPE Code for doing so. However, the Board did determine in Case No. 77-11 that the four engineers did violate the NSPE Code with regard to projects for which they had gained specialized knowledge while in the employ of the firm.
This case does not appear to be dramatically different than Case No. 86-5 in that a client with a relationship with an engineering firm has sought out personnel within that firm to perform services for the benefit of the client. However there appears to be one difference.
unlike Case No. 77-11 , it does not appear that Engineer A has obtained any particular specialized knowledge as an employee of ABC
Engineers X Y Z Case 86-5 Disclosure Before Resignation Compliance
In Case 86-5, three staff engineers who developed a proposal for a city client disclosed the city's interest in their independent services to their employer before resigning and entering into negotiations with the city.
Client Solicitation Departure Non-Disclosure Prudential Weighing Obligation
Engineers X, Y, and Z fulfilled the prudential disclosure obligation by disclosing to their employer (Engineer A's firm) that the city client was interested in their independent services before resigning — demonstrating the preferred practice of disclosure even where not strictly required.
Before resignation from the employer firm
Absence of Specialized Knowledge Bar for Engineer A
Evaluated at time of Engineer A's departure and subsequent competition
Prior Specialized Knowledge Participation Bar State
Engineer A's absence of specialized knowledge gained at ABC that would restrict competition — the inverse/negated form of the bar
Board's finding that no specialized knowledge bar applies
Board's comparison with Case No. 77-11 where specialized knowledge did create a bar
City-Initiated Independence Encouragement from Clover City to Engineer A
From Clover City's initial expression of interest through Engineer A's eventual solicitation after the one-year moratorium
It is clear that the client, Clover City, is favorably disposed towards establishing a contractual relationship with Engineer A
Clover City's expression of interest in Engineer A establishing an independent practice and its preliminary interest in his future services
Engineer A's eventual solicitation of Clover City after the moratorium period
While Clover City may have expressed preliminary interest in Engineer A's future services, there was no formal agreement between Engineer A and the city
Clover City's approach to Engineer A expressing interest in retaining him independently of ABC
Conflict of Interest - Engineer A Dual Loyalty
From the moment Clover City officials suggest Engineer A open his own firm through Engineer A's departure from ABC
Engineer A's competing interests between loyalty to ABC Engineering Company (current employer) and personal interest in establishing an independent firm to serve Clover City
Clover City officials suggest Engineer A open his own firm while Engineer A is still employed by ABC and working on ABC's Clover City contract
Elevated Storage Tank Out-of-Scope Work State
From Engineer A's inclusion of tank elements in the report through Engineer A's departure from ABC and subsequent solicitation of Clover City
Out-of-Scope Work Performed Without Contract State
Engineer A's inclusion of elevated storage tank funding elements in the report without a separate contract
Not formally resolved; persists as ethical background condition when Engineer A later solicits Clover City for the tank design contract
Engineer A develops elevated storage tank funding section as part of the broader report without a contracted scope for that element
Engineer A Active Project Declination While Employed at ABC
Clover City approached Engineer A while he was still employed at ABC and apparently offered him independent work; Engineer A declined and waited over a year before soliciting Clover City's business.
Active Project Declination During Employment Before Independent Departure Obligation
While still employed at ABC, Engineer A was obligated to decline Clover City's apparent offer of independent work; he fulfilled this obligation by declining the offer and not accepting independent work until after formally departing from ABC.
During the period of employment at ABC, upon receipt of Clover City's offer
Engineer A Departing Solicitation Honesty Non-Disparagement of ABC
After one year following departure from ABC, Engineer A began soliciting ABC's clients including Clover City; the honesty obligation required that this solicitation not involve misleading representations about ABC.
Departing Engineer Former Employer Client Solicitation Honesty Obligation
Engineer A was obligated, when soliciting Clover City and other former ABC clients after one year, to conduct that solicitation honestly and without misrepresentation or disparagement of ABC Engineering Company's capabilities, capacity, or prospects.
From the commencement of Engineer A's solicitation of ABC clients after the one-year period
Engineer A Independent Departure Motivation Verification
The BER distinguished Engineer A's case from one where departure would be primarily motivated by a pre-arranged client diversion scheme, finding that Engineer A's departure was independently motivated.
Independent Departure Motivation Verification Obligation
Engineer A was obligated to ensure that his departure from ABC was independently motivated by legitimate professional factors rather than primarily driven by Clover City's solicitation; the BER found that his departure clearly appeared to be independently motivated, supporting the permissibility of his conduct.
Engineer A's decision to depart from ABC and establish his own firm clearly appears to be motivated by factors independent from any relationship that Engineer A might be developing with Clover City
At the time of departure decision and throughout the transition period
Engineer A Non-Principal Employee Status Mitigating Departure Severity
Throughout Engineer A's employment at ABC and evaluated at time of departure
Engineer A was an employee of ABC and not a partner or principal of the firm
Non-Principal Employee Departure Mitigating Status State
Engineer A's status as an employee (not partner or principal) of ABC at the time of departure
Not terminated; status is historical fact evaluated by the Board
Engineer A's departure from ABC to establish an independent firm
Engineer A Post-Employment ABC Report Confidentiality Perpetuation
Engineer A developed the water treatment plant expansion report as an ABC employee; upon departing and establishing an independent firm, he retained knowledge of the report's content and subsequently solicited Clover City for related work.
Former Client Confidentiality Perpetuation Obligation
Engineer A was obligated to continue protecting the confidential content of the ABC water treatment plant expansion report after departing ABC, recognizing that the termination of his employment did not extinguish his duty to protect proprietary information developed during that employment.
From Engineer A's departure from ABC through all subsequent independent practice
Engineer A Speculative Elevated Storage Tank Work Non-Entitlement Acknowledgment
Engineer A performed elevated storage tank work beyond the contracted scope; Clover City indicated it would consider awarding him an independent design contract; the ethical question is whether this out-of-scope work creates any entitlement.
Speculative Contribution Non-Entitlement Acknowledgment Obligation
Engineer A was obligated to recognize and acknowledge that his out-of-scope, speculative work on the elevated storage tank portion of the water treatment report — performed without a separate contract — did not create an entitlement to the subsequent elevated storage tank design contract, and to refrain from representing or treating that contribution as a basis for claiming preferential selection.
When Engineer A solicited or accepted the elevated storage tank design contract from Clover City independently
Engineer A Staff Role Calibrated Departure Constraint Recognition
The BER explicitly noted that Engineer A was an employee of ABC and not a partner or principal, treating this as a factor supporting the permissibility of his conduct.
Staff Engineer Role-Calibrated Departure Constraint Recognition Obligation
The ethical evaluation of Engineer A's departure conduct was obligated to account for his role as a staff employee rather than a partner or principal of ABC, applying less stringent departure constraints appropriate to his employment status.
At the time of ethical evaluation of departure conduct
Free and Open Competition Boundary Condition Applied to Engineer A Post-Departure Solicitation
Engineer A's eventual solicitation of Clover City's business after establishing his independent firm
Specialized Knowledge Constraint on Post-Departure Competition
The BER affirmed that Engineer A's eventual solicitation of Clover City's business after the voluntary waiting period was within the bounds of free and open competition — no contractual or ethical prohibition prevented him from competing for former employer clients absent specialized knowledge constraints
Free and open competition permits engineers to solicit former employer clients after departure, subject to confidentiality and specialized knowledge constraints — where those constraints are absent, competition is ethically permissible
Free and Open Competition as Engineering Ethics Boundary Condition
it does not appear that Engineer A has obtained any particular specialized knowledge as an employee of ABC that would restrict his ability to establish his own firm and eventually compete with ABC
Prudential Disclosure as Relational Self-Protection Noted for Engineer A Non-Disclosure
Engineer A's decision not to disclose Clover City's interest to ABC before departing
Non-Disclosing Client-Solicited Departure Contextual Permissibility Principle
The BER's observation that Engineer A did not disclose Clover City's interest to ABC — while finding this not ethically required — implicitly recognizes that such disclosure would have been prudentially advisable to protect Engineer A's relational standing, as demonstrated by the contrast with Case 86-5 where disclosure was made
While non-disclosure was found ethically permissible, the comparison with Case 86-5 implicitly suggests that voluntary disclosure would have been the more prudent course, protecting Engineer A's professional standing in the event the non-disclosure became consequential
Engineer A Non-Disclosing Client-Solicited Departing Staff Engineer
Prudential Disclosure as Relational Self-Protection
In Case No. 86-5, the three engineers disclosed the fact that the client was interested in their services to their employer before resigning, while in the present case, there is no disclosure between Engineer A and ABC.
The Board found non-disclosure not ethically required but the comparison with Case 86-5 suggests disclosure would have been the more prudent practice
However, weighing all factors, the Board does not consider this to be particularly significant
In Case No. 86-5 , the three engineers disclosed the fact that the client was interested in their services to their employer before resigning, while in the present case, there is no disclosure between Engineer A and ABC.
Engineer A ABC Water Treatment Report Proprietary Content Non-Exploitation
Engineer A developed the water treatment plant expansion report as an ABC employee; the report was paid for by Clover City and delivered to ABC; Engineer A subsequently established an independent firm and solicited Clover City for related work.
Former Employer Proprietary Report Content Non-Exploitation in Independent Practice Obligation
Engineer A was obligated to refrain from exploiting the specific proprietary content, client-specific data, and confidential information contained in the ABC-developed water treatment plant expansion report when soliciting or performing independent work for Clover City, recognizing that while his general professional knowledge is portable, the specific report content belongs to ABC.
From Engineer A's departure from ABC through all subsequent independent practice involving Clover City
{'license': 'Professional Engineer', 'employment_status_at_departure': 'Staff employee, not partner or principal', 'non_compete_agreement': 'None', 'specialized_knowledge_restriction': 'None identified', 'waiting_period': 'Over one year voluntary non-solicitation'}
Staff engineer at ABC who was approached by Clover City expressing interest in his independent services, declined the immediate offer, did not disclose the client's interest to ABC, voluntarily waited over one year before establishing a competing firm and soliciting Clover City's business
{'type': 'competitor', 'target': 'ABC Engineering Firm'}
{'type': 'former_employer', 'target': 'ABC Engineering Firm'}
{'type': 'prospective_client', 'target': 'Clover City'}
Non-Disclosing Client-Solicited Departing Staff Engineer
Engineer A still declined an apparent offer of work by Clover City, decided not to compete directly with his former employer, ABC, and waited for a period of over a year
the Board believes that Engineer A's actions and conduct were ethical
Engineer A Non-Disclosure of Clover City Solicitation to ABC Prudential Assessment
Unlike Engineers X, Y, and Z in Case 86-5 who disclosed the client's interest to their employer before resigning, Engineer A made no such disclosure to ABC before departing.
Engineer A was not strictly required to disclose Clover City's solicitation to ABC before departing, but voluntary disclosure — as demonstrated by Engineers X, Y, and Z in Case 86-5 — would have been prudentially advisable; the BER found that non-disclosure was not particularly significant given that Engineer A's departure was independently motivated.
During the period between Clover City's solicitation and Engineer A's formal departure from ABC
Engineer A Post-Departure Clover City Solicitation Honesty Compliance
After approximately one year following departure from ABC, Engineer A began soliciting work from ABC's clients including Clover City; no no-compete agreement existed between Engineer A and ABC.
Post-Employment Former Employer Client Competitive Solicitation Permissibility Boundary Obligation
Engineer A was obligated, when soliciting Clover City and other ABC clients after one year, to conduct that solicitation honestly, without misrepresentation of ABC's capabilities, without exploitation of confidential information, and without disparagement of ABC — recognizing that the solicitation itself was permissible in the absence of a no-compete agreement but must be conducted within ethical bounds.
From the point Engineer A commenced solicitation of ABC clients after the one-year period
Engineer A Voluntary Six-Month Non-Solicitation Period Compliance
Engineer A voluntarily chose not to solicit ABC clients including Clover City for a period following his departure; the case indicates he honored this commitment and only began soliciting after approximately one year had passed.
Voluntary Non-Solicitation Period Ethical Transition Compliance Obligation
Engineer A was obligated to honor his voluntary commitment to refrain from soliciting ABC's clients, including Clover City, for the period he had set for himself following departure, recognizing that this voluntary undertaking — though not legally required — constituted a binding ethical commitment for its duration.
From Engineer A's departure from ABC through the end of his voluntary non-solicitation period
Four Engineers Case 77-11 Specialized Knowledge Violation
Four engineers left a firm, founded a new firm, and contacted former clients; found not in violation for general client contact but found in violation for projects involving specialized knowledge.
Specialized Knowledge Post-Departure Competition Constraint Obligation
The four engineers who departed their firm in Case 77-11 were obligated to refrain from competing for projects on which they had gained specialized knowledge during employment; they violated this obligation by competing for such projects without the former employer's consent.
Upon departure and during subsequent competition for former employer's clients
Tripartite Interest Balancing Applied to Engineer A Departure
ABC's interest in client relationship continuity
Clover City's interest in retaining Engineer A
Engineer A's departure from ABC and establishment of independent practice
Competitive Employment Freedom With Confidentiality Constraint
The BER explicitly balanced (1) Clover City's interest in retaining Engineer A's services, (2) Engineer A's interest in professional autonomy and independent practice, and (3) ABC Engineering's interest in maintaining business goodwill — concluding that all three interests were adequately respected by Engineer A's conduct
The tripartite balancing framework requires that no single party's interest automatically override the others; Engineer A's voluntary waiting period and independent departure motivation satisfied the balancing requirement
Tripartite Interest Balancing Invoked in Engineer A ABC Clover City Departure
ABC's loss of a major client relationship
Clover City's suggestion that Engineer A open his own firm
The ethical evaluation of Engineer A's departure from ABC to establish an independent firm must balance: (1) Clover City's interest in retaining Engineer A whose work it found exceptional; (2) Engineer A's interest in professional autonomy and independent practice; and (3) ABC's interest in maintaining its client relationship with Clover City and the goodwill generated by Engineer A's work
No single interest automatically prevails; the fact that Clover City initiated the suggestion, that no no-compete agreement exists, and that Engineer A voluntarily refrained from solicitation for a period all bear on the ethical balance
Engineer A currently works for ABC Engineering Company... officials in Clover City suggested that Engineer A open his own engineering company in Clover City... There was no 'no-compete agreement' between Engineer A and ABC Engineering Company.
BER Tripartite Interest Balancing Application Engineer A ABC Clover City
Engineer A departed ABC to establish an independent firm after Clover City suggested he do so; the BER applied tripartite balancing to assess the ethical permissibility of his departure and subsequent solicitation.
Tripartite Interest Balancing Departure Conduct Self-Assessment Obligation
The ethical evaluation of Engineer A's departure conduct required balancing: (1) Clover City's interest in retaining Engineer A's services; (2) Engineer A's interest in professional autonomy and establishing independent practice; and (3) ABC's interest in maintaining business goodwill with Clover City — with the BER finding that this balance supported the permissibility of Engineer A's conduct.
Throughout the departure process and subsequent competitive solicitation
Client-Initiated Departure Moral Responsibility Shift Applied to Clover City Suggestion
Engineer A's acceptance of Clover City's invitation
Because Clover City — not Engineer A — initiated the suggestion that Engineer A open his own firm, the moral responsibility for any disruption to ABC's client relationship shifts substantially toward Clover City, and Engineer A's culpability for accepting the invitation is correspondingly reduced
The client-initiated nature of the departure is a significant mitigating factor in the ethical evaluation of Engineer A's conduct; he did not actively solicit the opportunity but responded to the client's expressed preference
Client-Initiated Departure Moral Responsibility Shift Principle
Engineer A Elevated Storage Tank Work Attribution in Independent Solicitation
Engineer A performed out-of-scope elevated storage tank work as an ABC employee; Clover City indicated it would consider awarding him an independent design contract; Engineer A subsequently solicited Clover City independently.
Elevated Storage Tank Out-of-Scope Work Employer Attribution and Credit Obligation
Engineer A was obligated, when soliciting the elevated storage tank design contract independently, to accurately attribute the elevated storage tank funding work to his role as an ABC employee rather than presenting it as independent work, and to refrain from claiming that his out-of-scope contribution created an exclusive entitlement to the design contract.
When Engineer A solicited Clover City for the elevated storage tank design contract after establishing his independent firm
Staff Engineer Reduced Departure Constraint Applied to Engineer A
Assessment of Engineer A's departure obligations relative to ABC's interests
The Board explicitly noted that Engineer A was an employee of ABC and not a partner or principal of the firm, treating this role distinction as a factor supporting the permissibility of his departure conduct and reducing the stringency of applicable departure obligations
Staff engineers bear less stringent departure obligations than partners or principals because their fiduciary duty to the firm's client relationships and goodwill is correspondingly less deep
Staff Engineer Reduced Departure Constraint Relative to Partner Principle
At-Will Employment Symmetry Invoked for Engineer A Departure Right
ABC's inability to ethically condemn the departure itself
Engineer A's decision to establish his own firm
The ethical scrutiny focuses not on whether Engineer A may depart — he may — but on the manner of departure, including non-disclosure of Clover City's solicitation and subsequent competitive conduct
Engineer A Voluntary Non-Solicitation Period Departing Engineer
At-Will Employment Symmetry and Engineer Mobility Right
Six months later, Engineer A decides to establish his own firm in Clover City
Engineer A Clover City Solicitation Non-Disclosure to ABC During Employment
While employed at ABC and actively working on the Clover City water treatment plant report, Engineer A received a suggestion from Clover City officials to open his own firm; he did not disclose this to ABC before departing six months later.
Engineer A was obligated to weigh whether to disclose Clover City's suggestion that he open an independent firm to his employer ABC Engineering Company, recognizing that voluntary disclosure would have been prudentially advisable to protect the employment relationship and avoid the appearance of concealing a material conflict of interest.
From the moment Clover City officials suggested Engineer A open his own firm until Engineer A's departure from ABC
Engineer A Elevated Storage Tank Out-of-Scope Work Non-Self-Serving Motivation Assessment
Engineer A developed elevated storage tank funding content as part of the water treatment report despite this being outside the contracted scope; Clover City subsequently indicated it would consider awarding Engineer A an independent contract for the elevated storage tank design.
Out-of-Scope Initiative Non-Self-Serving Faithful Agent Obligation
Engineer A was obligated to ensure that his out-of-scope work on the elevated storage tank portion of the water treatment report was genuinely motivated by the interests of ABC and Clover City rather than by his own commercial interest in positioning for an independent contract, and to refrain from treating that contribution as creating an entitlement to the subsequent elevated storage tank design contract.
During preparation of the water treatment report and subsequently when soliciting the elevated storage tank design contract independently
Engineer A Out-of-Scope Elevated Storage Tank Work Non-Entitlement Recognition
Engineer A performed out-of-scope work on the elevated storage tank as part of the water treatment plant expansion report for Clover City while employed at ABC; this work was not separately contracted.
Engineer A was obligated to recognize that his out-of-scope work on the elevated storage tank portion of the water treatment report — performed without a separate contract — did not create an entitlement to subsequent contract awards from Clover City, and to refrain from treating or representing this speculative contribution as a basis for claiming preferential selection.
At the time of soliciting Clover City's business after departure from ABC
Engineer A Specialized Knowledge Absence Competition Permissibility Assessment
Engineer A developed a water treatment plant expansion report for Clover City while employed at ABC; the BER distinguished this from Case 77-11 where specialized knowledge created a competition constraint.
Engineer A was obligated to assess whether he had acquired specialized knowledge during his employment at ABC Engineering that would constrain his ability to compete for Clover City's work after departure; the BER found that no such specialized knowledge was acquired, rendering competition permissible.
At the time of departure from ABC and before soliciting Clover City's business
Free Enterprise Departure Right Invoked for Engineer A
Engineer A's decision to establish an independent engineering firm after departing ABC
In this context, the free enterprise principle means that the mere act of departing and establishing a competing firm is not ethically problematic — the ethical analysis focuses on the manner of departure, not the departure itself
As a general matter, this practice raises no ethical issues for the BER's consideration.
Voluntary Non-Solicitation Period Demonstrated by Engineer A
Engineer A's post-departure conduct regarding ABC's client relationships
Engineer A voluntarily refrained from soliciting ABC's clients, including Clover City, for approximately six months to over a year after establishing his own firm — a voluntary restraint not required by any contractual obligation but reflecting professional integrity in the transition
The voluntary waiting period demonstrated professional good faith and was a significant factor in the Board's finding that Engineer A's conduct was ethical and reasonable
Voluntary Non-Solicitation Period as Ethical Transition Practice
We believe Engineer A's conduct is appropriate and within the bounds of what would be considered reasonable
Engineer A Free Enterprise Departure Right Non-Proscription Recognition
The BER affirmed the fundamental free enterprise right of engineers to depart employers and establish competing firms, finding no general ethical proscription against Engineer A's departure.
Free Enterprise Departure Right Non-Ethical-Proscription Recognition Obligation
The BER was obligated to recognize that Engineer A's decision to depart ABC and establish an independent firm raised no general ethical proscription, and that any ethical constraints must be grounded in specific NSPE Code provisions rather than a general presumption against competitive departure.
It is not unusual for engineers, employed by others, at some point, to break off from their employer and go into business for themselves. This is a fundamental principle of this nation's free enterprise system and generally should not be discouraged. As a general matter, this practice raises no ethical issues for the BER's consideration
At the time of ethical evaluation of Engineer A's departure decision
Engineer A Voluntary Non-Solicitation Period One Year Compliance
After departing ABC and establishing his own firm, Engineer A waited over a year before soliciting Clover City's business, demonstrating voluntary restraint beyond what was legally required.
Engineer A voluntarily refrained from soliciting ABC's clients, including Clover City, for approximately six months to over a year after establishing his independent firm, fulfilling the voluntary non-solicitation commitment he had undertaken as an ethical transition practice.
From departure from ABC through the voluntary non-solicitation period of approximately six months to over one year
Faithful Agent Obligation Applied to Engineer A Declining Immediate Clover City Offer
Engineer A's conduct during the period between Clover City's initial expression of interest and his eventual departure from ABC
Engineer A's initial declination of Clover City's apparent offer of work while still employed at ABC reflects the faithful agent obligation — he did not exploit his client relationship to arrange post-departure business while still serving ABC as a faithful agent
The faithful agent obligation required Engineer A to refrain from arranging post-departure client commitments while still employed, and his declination of the immediate offer demonstrated compliance with this obligation
Non-Disclosing Client-Solicited Departure Permissibility Applied to Engineer A
Engineer A's failure to disclose Clover City's interest to ABC before departing
Unlike Case 86-5 where Engineers X, Y, Z disclosed client interest to their employer before departing, Engineer A made no such disclosure to ABC — yet the Board found this non-disclosure not ethically significant because Engineer A's departure was independently motivated and no formal pre-departure agreement with Clover City existed
Non-disclosure of client interest is not automatically an ethical violation when the departure is independently motivated and no formal pre-departure client agreement exists — the holistic assessment of motivations and conduct governs
in the present case, there is no disclosure between Engineer A and ABC.
Post-Employment Confidential Information Non-Use Invoked in Engineer A Analysis
Engineer A's use of water treatment engineering expertise developed while at ABC
The BER's reference to NSPE Code Sections III.4., III.4.a., III.4.b. and the specialized knowledge analysis implicitly invoked the prohibition on using confidential information from a former employer — finding this prohibition inapplicable because Engineer A had not obtained firm-specific confidential or proprietary knowledge
The confidentiality obligation survives departure but applies only to genuinely confidential and proprietary information, not to general professional competence developed in the course of employment
Post-Employment Confidential Information Non-Use Prohibition
The Code addresses the use of confidential information concerning the technical affairs or processes of the former employer, promotional activities and negotiations for employment or business, and the involvement of the engineer in adversarial situations relating to the former employer.
Non-Self-Serving Advisory Obligation Applied to Engineer A Elevated Storage Tank Initiative
Engineer A's out-of-scope elevated storage tank work in the water treatment report
Speculative Work Non-Entitlement to Subsequent Contract Award
Engineer A's out-of-scope work on the elevated storage tank must be evaluated for whether it was genuinely in ABC's and Clover City's interest or whether it was structured to create a dependency that would advantage his subsequent independent practice
While the out-of-scope work may have been genuinely meritorious and in Clover City's interest, the subsequent discussion of an elevated storage tank design contract for Engineer A's independent firm raises the question of whether the initiative was partly self-promotional
Clover City is impressed by Engineer A's initiative on this project... The city indicates that it would consider a city retainer contract and also a contract for the design of the elevated storage tank.
Post-Employment Confidential Information Non-Use Applied to ABC Water Treatment Report
ABC's water treatment plant expansion report
Engineer A's knowledge of Clover City's project needs developed during ABC employment
Engineer A may not exploit ABC's proprietary water treatment plant expansion report content, client-specific data, or confidential project information developed during his employment at ABC to gain competitive advantage in soliciting Clover City or other former ABC clients
The confidentiality obligation survives Engineer A's departure; his general engineering expertise is not restricted, but ABC's proprietary report content and client-specific data remain confidential
Engineer A developed the report by which the city will get funding for the water treatment plant expansion.
Speculative Work Non-Entitlement Applied to Elevated Storage Tank Out-of-Scope Work
Clover City's indication it would consider a contract for elevated storage tank design
Elevated storage tank out-of-scope report work
Engineer A's out-of-scope work on the elevated storage tank portion of the water treatment report — performed without a separate contract — does not create an ethical entitlement to the subsequent elevated storage tank design contract; Clover City must still follow proper procurement procedures
The out-of-scope work may have demonstrated Engineer A's capability and initiative, but it does not create a quid pro quo entitlement to the design contract; any such arrangement must go through proper competitive channels
no contract exists between the city and ABC for the design of the elevated storage tank
Voluntary Non-Solicitation Period Applied to Engineer A Six-Month Restraint
Engineer A's six-month voluntary non-solicitation period
Engineer A's subsequent solicitation of ABC clients after one year
Engineer A's voluntary decision to refrain from soliciting ABC's clients, including Clover City, for approximately six months following his departure demonstrates professional integrity and good faith toward ABC, reflecting a higher standard of professional conduct than the ethical minimum
The voluntary non-solicitation period reflects ethical best practice; the subsequent solicitation after one year is permissible and the voluntary restraint period itself is ethically commendable as a good faith gesture
Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients, including Clover City for a period of time. However, after a year has passed, Engineer A begins soliciting work from ABC's clients, including Clover City.
Competitive Employment Freedom Invoked for Engineer A Post-Departure Solicitation
Engineer A's general solicitation of ABC's former clients
Engineer A's solicitation of Clover City after one year
Engineer A's solicitation of ABC's clients, including Clover City, after one year is permissible under the principle of competitive employment freedom, provided he does not exploit confidential or proprietary information developed during his employment at ABC
The absence of a no-compete agreement and the passage of a reasonable transition period make the solicitation permissible; the constraint is that ABC's proprietary report content and client-specific data may not be exploited
after a year has passed, Engineer A begins soliciting work from ABC's clients, including Clover City. There was no 'no-compete agreement' between Engineer A and ABC Engineering Company.
Engineer A Client-Suggested Departure Faithful Agent Non-Concealment from ABC
While employed at ABC and serving as the primary engineer on the Clover City water treatment project, Engineer A received a direct suggestion from Clover City to open an independent firm; he did not disclose this to ABC and departed six months later.
Client-Suggested Departure Faithful Agent Non-Concealment Obligation
Engineer A was obligated, upon receiving Clover City's suggestion that he open an independent firm, to refrain from concealing this material conflict of interest from ABC while continuing to serve as ABC's faithful agent on the Clover City water treatment project, recognizing that the faithful agent duty required transparency about developments that materially affected his loyalty to his employer.
From the moment Clover City officials suggested Engineer A open his own firm until his departure from ABC
Faithful Agent Obligation Applied to Engineer A During ABC Employment
Engineer A's non-disclosure of Clover City's solicitation to ABC
Engineer A's out-of-scope elevated storage tank work
While employed at ABC, Engineer A owed faithful service to ABC as his employer; the question of whether his non-disclosure of Clover City's solicitation and his out-of-scope elevated storage tank work constituted a breach of this obligation is central to the ethical analysis
The faithful agent obligation requires disclosure of material information affecting the employer's client relationships; Engineer A's non-disclosure of Clover City's solicitation may have fallen short of this standard, though the client-initiated nature of the solicitation mitigates culpability
Engineer A currently works for ABC Engineering Company... As an employee of ABC, Engineer A developed the report by which the city will get funding for the water treatment plant expansion.
Free and Open Competition Applied to Engineer A Post-Departure Solicitation Permissibility
Engineer A's solicitation of ABC's clients after one year
The general permissibility of competing for former employer's clients
Engineer A's solicitation of Clover City and other former ABC clients after one year is presumptively permissible under the principle of free and open competition, given the absence of a no-compete agreement and the passage of a reasonable transition period
Free and open competition principles support the permissibility of Engineer A's post-departure solicitation; the ethical constraints are on the manner of competition (no use of confidential information, no misrepresentation) rather than on competition itself
Prudential Disclosure Applied to Engineer A Non-Disclosure of Clover City Solicitation
Engineer A's non-disclosure of Clover City's suggestion that he open his own firm
Personal Privacy Right in Professional Self-Disclosure
Engineer A's failure to disclose Clover City's solicitation to ABC was not necessarily an ethical violation, but voluntary disclosure would have been prudentially advisable to preserve his professional relationship with ABC and avoid the appearance of disloyalty
Prudential disclosure would have allowed ABC to address the situation proactively and would have protected Engineer A from the appearance of having acted in bad faith toward his employer
Recently, officials in Clover City suggested that Engineer A open his own engineering company in Clover City... Six months later, Engineer A decides to establish his own firm in Clover City without soliciting work from ABC's clients.
Disclosure was not mandatory but was prudentially advisable; Engineer A's choice not to disclose was permissible but suboptimal from a relational integrity standpoint
Specialized Knowledge Constraint Absence Permitting Engineer A Competition
Engineer A's ability to compete with ABC for Clover City's water treatment work after departure
The BER found that unlike Case 77-11, Engineer A did not obtain particular specialized knowledge as an employee of ABC that would restrict his ability to establish his own firm and compete — the absence of this constraint was a key factor supporting the permissibility of his conduct
The specialized knowledge constraint is project-specific and knowledge-specific; where an engineer's work product reflects general professional competence rather than firm-specific proprietary knowledge, the constraint does not apply
unlike Case No. 77-11, it does not appear that Engineer A has obtained any particular specialized knowledge as an employee of ABC that would restrict his ability to establish his own firm and eventually compete with ABC.
In Case No. 77-11 , the Board did determine in Case No. 77-11 that the four engineers did violate the NSPE Code with regard to projects for which they had gained specialized knowledge while in the employ of the firm.
unlike Case No. 77-11 , it does not appear that Engineer A has obtained any particular specialized knowledge as an employee of ABC that would restrict his ability to establish his own firm and eventually compete with ABC.
Engineer A Faithful Agent Duty to ABC During Active Clover City Project
Engineer A was employed by ABC and actively developing the Clover City water treatment plant expansion report when Clover City officials suggested he open an independent firm; the faithful agent duty required him to continue serving ABC's interests fully during this period.
Engineer A was obligated to act as a faithful agent of ABC Engineering Company throughout his employment, including during the period when Clover City officials suggested he open an independent firm, refraining from allowing that solicitation to compromise the quality, completeness, or integrity of his work on the water treatment plant report.
Throughout Engineer A's employment at ABC, particularly from the time of Clover City's solicitation until his departure
Engineer A Post-Employment Confidential Information Non-Use ABC Water Treatment Report
Engineer A developed the water treatment plant expansion report for Clover City while employed at ABC; the BER referenced NSPE Code Sections III.4, III.4.a, III.4.b as governing the use of confidential information post-departure.
After departure from ABC and throughout subsequent independent practice
Engineer A Post-Employment Solicitation Permissibility After Voluntary Period
After waiting over a year, Engineer A solicited Clover City's business; the BER found this permissible under the principles of free and open competition and client autonomy.
After the voluntary non-solicitation period elapsed, Engineer A was ethically permitted to solicit Clover City's business, provided he did so honestly, without exploiting confidential information from ABC, and without disparaging ABC's capabilities — the BER affirmed this solicitation as within the bounds of free and open competition.
After the voluntary non-solicitation period of over one year following departure from ABC
{'voluntary_restraint_period': 'approximately 6 months to 1 year', 'formal_non_compete': False, 'clients_solicited_after_period': ['Clover City', 'other ABC clients']}
Engineer A established his own firm and voluntarily refrained from soliciting ABC's clients (including Clover City) for approximately six months to one year, then began soliciting them after the self-imposed period elapsed, with no formal non-compete agreement in place.
{'type': 'competes_with', 'target': 'ABC Engineering Company'}
{'type': 'former_employer', 'target': 'ABC Engineering Company'}
{'type': 'solicits_client', 'target': 'Clover City'}
Voluntary Non-Solicitation Period Engineer
Engineer A Faithful Agent Conduct During ABC Employment
Engineer A's conduct during employment at ABC — including declining Clover City's offer and not immediately competing — was evaluated against the faithful agent standard.
While employed at ABC, Engineer A was obligated to act as a faithful agent of ABC, serving its interests loyally — including by declining Clover City's offer of independent work while still employed and not actively diverting ABC's client relationships for personal benefit.
Engineer A still declined an apparent offer of work by Clover City
Throughout the period of employment at ABC Engineering Company
{'employer': 'ABC Engineering Company', 'client': 'Clover City', 'scope_note': 'Elevated storage tank portion was outside original contracted scope'}
As an employee of ABC Engineering Company, Engineer A developed the water treatment plant expansion report for Clover City, including out-of-scope work on the elevated storage tank funding section, demonstrating initiative that attracted the city's attention.
{'type': 'serves_client', 'target': 'Clover City'}
Water Treatment Facility Design Engineer
The report included a part dealing with funding for an elevated storage tank
Those aspects of the report that dealt with the elevated storage tank were not part of the scope of work originally negotiated