ABC Manufacturing Repeat Litigation Client
{'entity_type': 'Corporate manufacturing company', 'litigation_types': ['Patent litigation (two matters)', 'Product liability (adverse party)'], 'retention_count': 2}
ABC Manufacturing retained Engineer A twice for patent litigation review and was the adverse party in the product liability matter in which Engineer A was retained by the plaintiff's attorney. The repeat-client relationship became the subject of opposing counsel's cross-examination, raising questions about Engineer A's independence.
{'type': 'adverse_party_to', 'target': 'Attorney X Plaintiff-Side Client'}
{'type': 'client_of', 'target': 'Engineer A Multi-Party Litigation Expert'}
Repeat Litigation Client Manufacturing Company
Engineer A was retained by ABC Manufacturing for the purpose of reviewing documents to form an opinion in a patent litigation matter
Engineer A was again retained by ABC Manufacturing in a different patent litigation matter not related to either of the proceeding events
Absolute Conflict Avoidance Standard Non-Application Engineer A Sequential Engagements
Engineer A served as expert witness for ABC Manufacturing in two patent matters and for opposing plaintiff in an unrelated product liability matter; the Board evaluated whether this sequential service violated the Code under the current disclosure-based standard rather than the obsolete absolute-avoidance standard.
NSPE Board of Ethical Review evaluating Engineer A
Conflict of Interest Disclosure Supersession of Absolute Avoidance Constraint
The Board was constrained from applying the obsolete absolute-avoidance conflict standard to Engineer A's sequential engagements; the operative standard required only disclosure of known or potential conflicts, not avoidance of all situations that could place the engineer adverse to a former client.
NSPE Code of Ethics for Engineers (evolved disclosure-based standard); BER Case No. 98-4
At one point in the past, engineering codes of ethics, including the NSPE Code of Ethics for Engineers, specifically implored engineers to avoid all conflicts of interest.
At time of BER review of Engineer A's conduct
After careful review and analysis of the facts and circumstances in the case, we believe the facts do not rise to the level of a conflict of interest prohibited by the Code of Ethics.
codes were changed, and engineers were implored to disclose all known or potential conflicts of interest to their employers or clients
Creating a record of having worked both for and against ABC Manufacturing, which could later be used to imply impropriety
Potential perception of disloyalty or conflict of interest by ABC Manufacturing or future observers
Taking a position adverse to the interests of a former client (ABC Manufacturing)
Competence: accepted work within her area of professional expertise
Professional autonomy and independence: exercised independent judgment to accept a legitimate engagement
Disclosure of known or potential conflicts rather than absolute avoidance
Faithful agency limited to active engagements, not perpetual loyalty to former clients
Objectivity in forensic engineering (engineers are not advocates)
Provide competent expert services in the product liability matter on behalf of the plaintiff, fulfilling the new professional engagement
Disclosure obligation: presumed to have assessed and managed any potential conflict of interest through disclosure (modern NSPE standard)
Potential tension with duty of loyalty to former client ABC Manufacturing, though Board concluded this did not rise to a prohibited conflict given the unrelated subject matter
Ability to maintain objectivity when working within the legal adversarial system
Conflict of interest assessment and disclosure judgment
Expert technical knowledge applicable to the product liability matter
Forensic engineering analysis and opinion formation
Several years after the initial ABC Manufacturing engagement
Several years after working for ABC Manufacturing, Engineer A chose to accept retention by Attorney X, who represented a plaintiff in a product liability case against ABC Manufacturing, a matter unrelated to the earlier patent litigation. This decision placed Engineer A in a position adverse to her former client.
Accept Adverse Plaintiff Retention → Impropriety Implied by Counsel
During cross-examination in the third engagement, opposing counsel publicly implied that Engineer A had acted improperly, a line of attack made possible only because Engineer A had chosen to accept retention adverse to a former client.
Had Engineer A declined the adverse retention, opposing counsel would have had no factual basis to imply switching-sides impropriety during cross-examination
A litigation context enabling cross-examination
Engineer A's decision to accept an adverse role against ABC Manufacturing
Existence of a prior professional relationship with ABC Manufacturing
Opposing counsel's awareness of the sequential relationship history
Engineer A (primary); Opposing Counsel (proximate actor)
Prior relationship + adverse acceptance + litigation forum = sufficient basis for opposing counsel to raise impropriety publicly
Establishment of a prior professional relationship with ABC Manufacturing that could complicate future engagements
Potential future perception of loyalty or partiality toward ABC Manufacturing
Competence: accepted work within her area of expertise (NSPE Code II.2)
Faithful agent and trustee: performed services diligently for client ABC Manufacturing (NSPE Code II.4)
Public safety and professional service: provided honest expert opinion in litigation context
Professional independence and objectivity in forensic engineering
Provide competent expert review services in patent litigation within her area of expertise and fulfill the professional engagement
Expert knowledge in the relevant technical domain of patent litigation
Formation and articulation of expert opinion
Understanding of forensic engineering standards and obligations
Earliest event in timeline; exact date unspecified
Engineer A chose to accept retention by ABC Manufacturing to review documents and form an expert opinion in a patent litigation matter within her area of expertise. She performed the requested services and received payment.
Accept Initial ABC Retention → Prior Relationship Exists at Adverse Retention
At the moment Engineer A accepted retention by Attorney X against ABC Manufacturing, a prior professional relationship existed, one that was created by Engineer A's original decision to accept retention by ABC Manufacturing.
Had Engineer A declined the initial ABC retention, no prior professional relationship would have existed at the time of the adverse retention, and the conflict-of-interest question would not have arisen
Prior Relationship Exists at Adverse Retention
Completion of paid professional services creating a professional relationship
Engineer A's volitional acceptance of the initial ABC engagement
Temporal persistence of that relationship into future engagements
Acceptance of retention + completion of work + receipt of payment = established prior professional relationship
Creating a three-engagement record of alternating loyalty (for ABC, against ABC, for ABC) that could be characterized as opportunistic or improper
Exposure to cross-examination challenges implying impropriety based on the pattern of engagements
Potential perception that Engineer A's opinions were for sale to whoever retained her
Competence: accepted work within her area of expertise
Faithful agent and trustee: performed services for ABC Manufacturing in the new engagement (NSPE Code II.4)
Disclosure of conflicts rather than absolute avoidance
Individual engineer judgment and discretion in accepting engagements
Objectivity and non-advocacy in forensic engineering
Provide competent expert services to ABC Manufacturing in the new patent litigation matter, fulfilling the professional engagement
Disclosure obligation: presumed to have assessed and disclosed any potential conflicts
Potential tension with residual professional relationship with Attorney X or the plaintiff from the prior adverse engagement, though no explicit violation identified by the Board
Ability to maintain objectivity despite complex prior relationship history with client
Conflict of interest assessment across multiple prior engagements
Credibility maintenance under cross-examination scrutiny
Expert technical knowledge in the relevant patent litigation domain
Forensic engineering analysis and expert opinion formation
Several years after the plaintiff-side product liability engagement
Several years after working against ABC Manufacturing in the product liability case, Engineer A chose to accept re-retention by ABC Manufacturing for a new, unrelated patent litigation matter. This decision re-established a professional relationship with a party she had previously worked against.
Accept Re-Retention by ABC → Impropriety Implied by Counsel
The completed three-engagement sequential pattern, working for ABC, then against ABC, then for ABC again, provided opposing counsel the factual predicate to imply during cross-examination that Engineer A's loyalty and objectivity were for sale.
Had Engineer A declined re-retention by ABC, the switching pattern would have been incomplete and the cross-examination attack on credibility would have been substantially weaker or unavailable
A litigation forum in which the pattern could be exposed
Completion of all three sequential engagements creating a visible pattern
Engineer A's volitional acceptance of re-retention by ABC after adverse work
Three-phase switching pattern + litigation context = sufficient for credible public impropriety allegation by opposing counsel
NSPE Board of Ethical Review (derived from professional ethics precedent)
Adversarial Proceeding Conflict of Interest Standard
opposing counsel questions Engineer A's previous relationship both in defense of and in litigation with ABC Manufacturing
Engineer A; opposing counsel; NSPE Board of Ethical Review
Governs Engineer A's obligations regarding disclosure and management of prior relationships with ABC Manufacturing when retained by opposing counsel, and the limits of loyalty to former clients in subsequent adversarial proceedings
Appearance of Conflict Non-Equivalence Actual Conflict Engineer A Multi-Party Litigation
Opposing counsel implied impropriety based on Engineer A's sequential service pattern; the Board concluded that while reasonable persons might differ on whether an appearance of conflict existed, no actual conflict was demonstrated.
NSPE Board of Ethical Review; Opposing Counsel
Appearance of Conflict Non-Equivalence to Actual Conflict Ethical Violation Constraint
The Board was constrained from finding a prohibited conflict of interest based solely on the appearance of impropriety created by Engineer A's sequential service on opposing sides of ABC Manufacturing litigation; the appearance of a conflict, without demonstration of an actual conflict, was insufficient to establish a Code violation.
NSPE Code of Ethics for Engineers Section II.4; BER Case No. 98-4
While reasonable persons might differ as to whether Engineer A's actions under the facts would raise either a conflict or an appearance of a conflict, the Board concludes that a conflict does not exist.
Throughout BER review and cross-examination of Engineer A
Among the concerns expressed by supporters of this position was that engineers who were involved in conflict of interest situations created a poor image for the engineering profession because the issue raised the appearance of impropriety.
Attorney X Plaintiff-Side Retaining Attorney
{'entity_type': 'Legal professional / Attorney', 'litigation_type': 'Product liability (plaintiff representation)', 'adverse_party': 'ABC Manufacturing'}
Attorney X retained Engineer A as an expert in a product liability matter against ABC Manufacturing — the same company that had previously retained Engineer A. This created the multi-party relationship pattern that opposing counsel later challenged at trial.
{'type': 'adverse_to', 'target': 'ABC Manufacturing Repeat Litigation Client'}
{'type': 'retains', 'target': 'Engineer A Multi-Party Litigation Expert'}
Plaintiff-Side Litigation Retaining Attorney
Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing in a matter not involving any aspect of the earlier patent litigation
NSPE Board of Ethical Review Case Precedent on Expert Witness Dual/Sequential Roles
opposing counsel questions Engineer A's previous relationship both in defense of and in litigation with ABC Manufacturing, implying that by providing those services, Engineer A was acting improperly
Prior BER decisions on expert witness conduct, objectivity, and conflict of interest in litigation contexts provide analogical reasoning patterns for evaluating whether Engineer A's sequential service for and against ABC Manufacturing is ethically permissible
The Board of Ethical Review has also considered several cases involving the question of engineers providing and performing forensic engineering services and the ethical issues that arise in that context (See BER Cases 92-5, 82-6, 76-3)
NSPE Board of Ethical Review to establish analogical reasoning foundation for the current case
Referenced as prior BER precedent addressing ethical issues arising in forensic engineering services contexts
Referenced as prior BER precedent addressing ethical issues arising in forensic engineering services contexts, including contingency fees, licensure, and expert witness qualifications
Clarification that may not fully resolve the appearance of impropriety concern acknowledged in the discussion
Potential concern that the ruling could be used to justify acceptance of engagements that create more genuine conflicts
Risk that the ruling could be misread as endorsing a 'hired gun' approach to forensic engineering
Correctly applying the modern NSPE Code standard (disclosure rather than absolute avoidance)
Distinguishing engineering professional obligations from legal advocacy obligations
Protecting engineer professional autonomy and independence from unwarranted restrictions
Providing authoritative ethical guidance to the engineering profession
Disclosure-based conflict of interest standard (modern NSPE Code)
Engineers as objective experts, not advocates
Faithful agency limited to active client relationships, not perpetual loyalty
Professional autonomy and independence of engineers
Provide authoritative ethical guidance clarifying that engineers do not owe perpetual absolute loyalty to former clients and that accepting unrelated engagements adverse to former clients does not violate the NSPE Code of Ethics
Analysis of conflict of interest principles in forensic engineering contexts
Application of prior BER precedents to new fact patterns
Authoritative interpretation of the NSPE Code of Ethics
Distinguishing engineering professional obligations from legal professional obligations
After the events described in the case; adjudicative decision
The NSPE Board of Ethical Review deliberated on the facts and decided that Engineer A's sequential and opposing engagements with ABC Manufacturing did not constitute a prohibited conflict of interest under the NSPE Code of Ethics, affirming her professional autonomy to accept unrelated engagements regardless of prior adversarial history.
Board Rules No Prohibited Conflict → No Violation Finding Issued
The NSPE Board of Ethical Review deliberated on the facts and decided that Engineer A's sequential adverse engagements did not constitute a prohibited conflict of interest under the applicable ethics code, directly producing the formal no-violation conclusion.
Had the Board ruled that a prohibited conflict existed, either by applying a stricter standard or finding disclosure requirements were not met, no no-violation finding would have been issued, and Engineer A's professional standing would have been formally damaged
NSPE Board's jurisdiction and authority to issue ethical findings
The Board's deliberative decision to apply the disclosure-based standard rather than a stricter one
The factual record of Engineer A's engagements being presented to the Board
The revised ethics code providing a permissive framework for the conduct at issue
Board authority + revised permissive standard + Engineer A's conduct not violating disclosure requirements = sufficient for formal no-violation finding
CausalLink_Accept Adverse Plaintiff Reten
CausalLink_Board Rules No Prohibited Conf
CausalLink_Engineering Profession Shifts
It was ethical for Engineer A to provide services to the parties in the manner described under the facts.
Beyond the Board's finding that Engineer A's sequential engagements were ethical, the analysis reveals a critical but underexplored procedural precondition: the permissibility of each successive engagement depended not merely on the factual unrelatedness of the matters, but on Engineer A's proactive disclosure of her prior relationship history to each new retaining party before accepting the engagement. The Board's conclusion implicitly assumes such disclosures occurred, but the case facts do not expressly confirm them. If Engineer A failed to disclose to Attorney X that she had previously served ABC Manufacturing in patent litigation before accepting the adverse product liability retention, or failed to disclose to ABC Manufacturing that she had served against them in the product liability matter before accepting the second patent retention, those omissions would have independently violated the faithful agent standard under Section II.4, regardless of whether the underlying matters were factually unrelated. The ethical permissibility of multi-party sequential engagement is therefore not self-executing upon a finding of factual unrelatedness; it is contingent on timely, complete, and voluntary disclosure to each client of all prior relationships with adverse parties. The Board's analysis would be strengthened by explicitly conditioning its compliance finding on the assumption that such disclosures were made.
The Board's finding correctly distinguishes between an appearance of impropriety and an actual conflict of interest, but this distinction carries an underappreciated institutional cost that the Board does not fully address. When opposing counsel successfully raised Engineer A's multi-party engagement history during cross-examination to imply impropriety, the adversarial proceeding itself became a forum for litigating engineering ethics norms before a lay trier of fact. Even if Engineer A committed no actual ethical violation, the cross-examination episode demonstrates that the absence of a prophylactic disclosure or recusal standard creates a structural vulnerability: ethically permissible conduct can be weaponized to undermine the credibility of expert testimony and, by extension, the perceived integrity of forensic engineering as a profession. The Board's analysis would benefit from acknowledging that while no ethical violation occurred, the profession's long-term interest in the reliability and public trustworthiness of expert witness services may warrant a best-practice recommendation — short of a mandatory ethical rule — that engineers in multi-party sequential engagements involving the same corporate entity proactively address their engagement history in their expert reports or preliminary disclosures, thereby neutralizing the cross-examination vulnerability before it arises. Such a recommendation would preserve individual engineering judgment autonomy while reducing the reputational externalities that ethically permissible but appearance-generating conduct can impose on the broader profession.
The Board's reliance on the categorical distinction between an engineer's role as an objective expert and an attorney's role as an advocate — to reject the importation of legal profession side-loyalty norms — is analytically sound but requires a more precise boundary condition to remain robust. The distinction holds clearly when the subject matter of successive engagements is genuinely unrelated, as in this case. However, the Board does not adequately address the scenario in which factual unrelatedness is present but confidential technical or strategic information acquired during a prior engagement could nonetheless be materially relevant to a subsequent adverse engagement involving the same corporate party. In such a scenario, the engineer's non-advocate status would not insulate her from an actual conflict, because the conflict would arise not from side-loyalty norms but from the faithful agent obligation under Section II.4 — specifically, the duty not to deploy, even inadvertently, confidential information acquired in a prior engagement to the detriment of a former client. The Board's analysis implicitly assumes that the three engagements were sufficiently compartmentalized that no such information transfer risk existed, but this assumption is not examined. A complete analytical framework would require Engineer A to affirmatively assess, before accepting each successive engagement, whether any technical knowledge, litigation strategy, or proprietary process information acquired in a prior engagement could provide an unfair advantage or cause harm to the former client in the new matter — and to decline or disclose accordingly. The ethical permissibility of sequential adverse engagements is therefore bounded not only by factual unrelatedness of the legal matters, but by the absence of transferable confidential information that could compromise the former client's interests.
In response to Q101, Engineer A's obligation to proactively disclose her prior relationship with ABC Manufacturing to Attorney X arose at the moment of initial retention inquiry — before accepting the adverse plaintiff engagement — not after. The faithful agent standard under NSPE Code Section II.4 requires that each client receive Engineer A's undivided professional loyalty within the scope of the engagement. To satisfy that standard, the disclosure to Attorney X would have needed to include: (1) the existence of a prior professional relationship with ABC Manufacturing; (2) the general nature of the services rendered (patent litigation expert review); (3) the approximate timeframe of that prior engagement; and (4) an affirmative representation that no confidential or proprietary information acquired during that prior engagement would be deployed in the adverse matter. A disclosure limited to acknowledging the prior relationship without addressing the knowledge-contamination risk would have been formally compliant but substantively incomplete. The Board's finding of ethical compliance implicitly presupposes that such disclosure occurred and was adequate, though the Board does not make this predicate finding explicit, which is an analytical gap in the opinion.
In response to Q102, Engineer A did have a disclosure obligation to ABC Manufacturing before accepting the second patent litigation retention, and ABC Manufacturing's silence cannot be treated as implied consent without an affirmative disclosure having first been made. The faithful agent standard requires that a client be positioned to make an informed decision about retaining an expert who has previously served against it. Implied consent is legally and ethically meaningful only when the party alleged to have consented possessed the material facts necessary to exercise genuine choice. If Engineer A disclosed her prior adverse service in the product liability matter to ABC Manufacturing before accepting the second retention, and ABC Manufacturing proceeded with the retention without objection, that conduct would constitute informed acquiescence sufficient to satisfy the NSPE Code's disclosure norms. However, if no such disclosure was made, ABC Manufacturing's silence would be legally meaningless as consent and would expose Engineer A to a retroactive conflict challenge of the kind opposing counsel actually raised at trial. The Board's opinion does not resolve whether this disclosure was in fact made, which is a significant omission given that the entire ethical permissibility of the second retention depends on it.
In response to Q103, the fact that opposing counsel was able to mount a plausible appearance-of-impropriety challenge during cross-examination does suggest that Engineer A had a prudential, if not strictly ethical, obligation to preemptively address her multi-party engagement history in her expert report or testimony. The NSPE Code distinguishes between an actual conflict of interest and a mere appearance of one, and the Board correctly finds that appearance alone does not constitute a violation. However, the adversarial context of expert witness testimony creates a practical imperative that goes beyond minimum ethical compliance: an expert whose prior relationships are discoverable through ordinary litigation investigation and who fails to address them proactively in her report invites precisely the kind of cross-examination ambush that occurred here. While no NSPE Code provision expressly requires preemptive disclosure in expert reports, the objectivity principle and the faithful agent standard together support the conclusion that Engineer A's professional judgment should have led her to surface the prior relationship history affirmatively, both to protect her own credibility and to preserve the integrity of the engineering expert witness function. The Board's silence on this point leaves a gap that future practitioners should fill with a prophylactic disclosure practice even where no actual conflict exists.
In response to Q104, the Board's analysis does not adequately account for the risk that confidential or proprietary information acquired during the first patent litigation retention could have been inadvertently deployed during the adverse product liability engagement. During the first patent litigation, Engineer A would plausibly have been exposed to ABC Manufacturing's technical processes, manufacturing tolerances, internal quality control procedures, litigation strategy, and expert witness vulnerabilities — all of which could have been material to a product liability claim against the same company. The Board's permissibility finding rests on the factual premise that the matters were unrelated, but factual unrelatedness of legal claims does not guarantee informational unrelatedness of the technical knowledge base. A more rigorous analysis would have required the Board to examine whether the product liability matter implicated any technical domain in which Engineer A had acquired non-public ABC Manufacturing information during the patent litigation. The absence of this inquiry means the Board's conclusion is conditionally valid at best: it holds only if the technical subject matter of the product liability matter was genuinely orthogonal to the knowledge Engineer A acquired in the patent context. This is an empirical question the Board treats as resolved by the bare assertion of factual unrelatedness, which is analytically insufficient.
In response to Q201, the tension between bounded former-client loyalty and the faithful agent standard is real but resolvable without contradiction. The faithful agent standard under NSPE Code Section II.4 is engagement-scoped: it imposes a duty of undivided loyalty and trust to the current client within the boundaries of the active engagement, not a perpetual duty of devotion to all prior clients across all future matters. Once an engagement concludes, the residual obligations are informational — specifically, the duty not to deploy confidential information acquired during the prior engagement against the former client — rather than relational, meaning there is no duty to refuse all future adverse engagements. This reading preserves the faithful agent standard's integrity while rejecting the absolutist interpretation that would effectively prohibit engineers from serving in any matter involving a former client on the opposing side. The principle tension dissolves when the faithful agent duty is understood as temporally bounded and informationally defined rather than as a perpetual relational loyalty. The Board's conclusion implicitly adopts this reading, though it does not articulate the theoretical basis with sufficient precision.
In response to Q202, the tension between objectivity-based multi-party engagement permissibility and the disclosure obligations that such engagement triggers is genuine and not fully resolved by the Board's analysis. Robust disclosure of prior adverse relationships serves the transparency function of the NSPE Code but simultaneously creates a record that opposing counsel can weaponize to challenge the expert's independence — as occurred here. This creates a structural paradox: the more faithfully Engineer A complies with disclosure obligations, the more material she provides for an appearance-of-impropriety attack; the less she discloses, the more she risks an actual conflict violation. The resolution lies in recognizing that the appearance of impropriety generated by disclosed prior relationships is categorically different from an actual conflict: it is a litigation tactic, not an ethical failure. The NSPE Code's distinction between appearance and actuality of conflict is therefore not merely a technicality but a principled response to this structural paradox. Engineer A's objectivity is not undermined by the disclosure of prior relationships; it is demonstrated by the transparency of that disclosure and the factual separateness of the matters. The Board reaches the right conclusion but does not articulate this paradox-resolution logic explicitly.
In response to Q301, from a deontological perspective, Engineer A's duty as a faithful agent and trustee to each successive client required proactive disclosure of prior relationships before accepting each new engagement, regardless of factual unrelatedness. The Kantian structure of the faithful agent duty is categorical: it does not permit the agent to withhold material information from a principal on the grounds that the agent has independently assessed the information as non-prejudicial. The client, not the engineer, is the appropriate decision-maker about whether a prior adverse relationship is acceptable. This means that even if Engineer A correctly determined that the matters were unrelated and that no confidential information would be deployed, she was still obligated to disclose the prior relationship to each successive client and allow that client to make an informed retention decision. The Board's finding of ethical compliance is consistent with this deontological analysis only if the required disclosures were in fact made — a predicate the Board assumes but does not verify. If the disclosures were not made, the deontological analysis would yield a violation finding even if the consequentialist analysis (no actual harm, no information leakage) would not.
In response to Q302, from a consequentialist perspective, the cumulative outcome of Engineer A's sequential engagements is net positive for the integrity of the engineering expert witness system, but only conditionally. The positive case rests on three premises: (1) engineers who are genuinely objective can serve opposing parties in unrelated matters without information contamination; (2) permitting such service expands the pool of qualified experts available to all parties; and (3) the adversarial system benefits from experts whose opinions are formed independently of client loyalty. However, the cross-examination episode introduces a countervailing consequentialist consideration: if opposing counsel can routinely exploit prior adverse relationships to undermine expert credibility before lay triers of fact, the net effect may be to deter qualified engineers from accepting multi-party engagements, thereby shrinking the expert pool and disadvantaging parties who cannot retain experts without prior adverse history. The consequentialist calculus therefore favors the Board's permissibility finding but also supports a prophylactic disclosure norm — not as an ethical requirement but as a systemic practice that would reduce the frequency of appearance-of-impropriety attacks and thereby preserve the expert pool benefits that the permissibility rule is designed to generate.
In response to Q303, from a virtue ethics perspective, Engineer A's conduct presents a mixed picture that the Board's binary compliance finding does not fully capture. The virtues most relevant to forensic expert practice are integrity (consistency between private judgment and public testimony), impartiality (freedom from client-loyalty bias in forming opinions), and practical wisdom (phronesis — the capacity to navigate complex professional situations with sound judgment). Engineer A's willingness to serve opposing parties in unrelated matters is consistent with impartiality, since it demonstrates that her expert opinions are not permanently aligned with any single client's interests. However, the pattern of sequential engagements across opposing sides involving the same corporate entity raises a virtue ethics question that the Board does not address: does a virtuous forensic expert proactively manage the appearance of her independence, or does she simply rely on the factual correctness of her position? Practical wisdom would counsel the former — a truly prudent expert would have anticipated the cross-examination vulnerability and addressed it preemptively. The absence of such preemptive management does not constitute a vice, but it reflects a gap in practical wisdom that the virtue ethics framework identifies even where the deontological and consequentialist frameworks find no violation.
In response to Q304, from a deontological perspective, the categorical distinction between an engineer's role as an objective expert and an attorney's role as an advocate does provide a principled duty-based reason to reject the importation of legal profession side-loyalty norms into engineering ethics, but this rejection is not absolute. The attorney's duty of loyalty to a client is constitutive of the adversarial system's design: the attorney is expected to be a partisan advocate, and side-switching would corrupt the very function the attorney is meant to perform. The engineer expert witness, by contrast, is expected to be an objective truth-teller whose opinions are formed independently of client preference. The duty structure is therefore fundamentally different: the attorney's loyalty duty is role-constitutive, while the engineer's objectivity duty is role-constitutive in the opposite direction. Importing attorney side-loyalty norms into engineering ethics would therefore not merely add an obligation — it would contradict the foundational duty that defines the engineer expert's role. However, this categorical rejection does not eliminate all loyalty-adjacent duties for engineers: the faithful agent standard, the confidentiality obligation, and the non-deployment of insider knowledge all impose duties that are analogous in structure, if not in scope, to attorney loyalty duties. The Board correctly rejects the wholesale importation of attorney norms while implicitly preserving these engineering-specific analogues.
In response to Q401, if Engineer A had failed to proactively disclose her prior relationship with ABC Manufacturing when retained by Attorney X, that omission would not automatically convert the engagement into an actual conflict of interest under the NSPE Code, but it would have constituted a separate and independent violation of the faithful agent standard's disclosure component. The distinction is important: an actual conflict of interest arises when an engineer's ability to serve a client with undivided loyalty is materially compromised by a competing obligation or interest. The failure to disclose a prior relationship does not itself create such a compromise — the compromise either exists or does not exist based on the underlying facts of informational overlap and loyalty division. However, the failure to disclose would violate the transparency dimension of the faithful agent duty, which requires that clients be positioned to make informed retention decisions. The ethical violation in that scenario would be the non-disclosure itself, not the acceptance of the adverse engagement. This means the Board's permissibility finding is conditional on adequate disclosure having occurred, and the absence of disclosure would yield a violation finding on a different ground than conflict of interest — specifically, a breach of the faithful agent's transparency obligation.
In response to Q402, if the product liability matter had involved technical subject matter substantially overlapping with the earlier patent litigation in which Engineer A served ABC Manufacturing, the unrelated-matter permissibility principle would not have shielded Engineer A from an ethical violation. The entire analytical foundation of the Board's permissibility finding rests on the factual premise that the three engagements were genuinely unrelated — not merely that they bore different legal labels. If the product liability matter implicated the same technical processes, manufacturing methods, or engineering design questions that Engineer A had analyzed during the patent litigation, then the informational boundary between the matters would have collapsed, and Engineer A would have been in possession of confidential ABC Manufacturing technical knowledge directly relevant to the adverse engagement. In that scenario, the faithful agent standard's confidentiality component would have been violated regardless of whether Engineer A consciously deployed the insider knowledge, because the structural risk of inadvertent deployment would have been non-trivial and foreseeable. This counterfactual reveals that the Board's 'unrelated matter' criterion is doing substantial analytical work that the opinion does not fully unpack: the criterion must be understood as requiring not merely legal claim unrelatedness but technical subject matter unrelatedness sufficient to ensure genuine informational separation.
In response to Q403, if Engineer A had declined the second ABC Manufacturing retention after having served against ABC Manufacturing in the product liability matter, such a refusal would have been ethically unnecessary but potentially prudent as a matter of professional judgment. The Board's finding that no absolute loyalty obligation persists to former clients in unrelated matters applies symmetrically to both directions of the sequential engagement: just as Engineer A was permitted to serve against ABC Manufacturing after having previously served for it, she was equally permitted to serve for ABC Manufacturing again after having served against it. A refusal would therefore have been an exercise of individual professional judgment — perhaps motivated by a desire to avoid further cross-examination vulnerability — but not an ethical requirement. The Board's analysis implicitly supports this conclusion by rejecting categorical prohibitions on multi-party forensic engagement. However, the virtue ethics framework suggests that a prudent expert might have weighed the cumulative reputational risk of the three-engagement pattern and concluded that declining the second ABC Manufacturing retention was the wiser course, even if not the ethically mandated one. The distinction between ethical obligation and professional prudence is one the Board's binary compliance framework does not fully illuminate.
In response to Q404, if opposing counsel's cross-examination had succeeded in persuading the trier of fact that Engineer A's sequential engagements demonstrated bias rather than independence, the resulting reputational and evidentiary harm would have created a strong systemic argument for a prophylactic disclosure standard, but such a standard would need to be carefully designed to avoid subordinating individual engineering judgment to a categorical rule. The NSPE Board would have been justified in recommending — though not necessarily mandating — that engineers with multi-party engagement histories involving the same corporate entity affirmatively disclose that history in their expert reports, thereby reducing the cross-examination ambush risk and preserving the credibility of the engineering expert witness function. However, a mandatory recusal standard in the absence of an actual conflict would be inconsistent with the Board's core finding that appearance of impropriety is not equivalent to actual conflict, and would effectively import the attorney side-loyalty norm that the Board correctly rejects. The appropriate institutional response to the systemic risk identified in this counterfactual is therefore a best-practice disclosure guideline rather than a mandatory recusal rule — a distinction that preserves individual engineering judgment autonomy while addressing the legitimate public trust concern that the cross-examination episode illustrates.
The Board resolved the tension between the faithful agent standard and the non-absolute loyalty principle by treating them as operating on different temporal and relational planes rather than as genuinely competing obligations. The faithful agent duty under Section II.4 was interpreted as fully dischargeable within the scope of each discrete engagement: once Engineer A completed her work for ABC Manufacturing in the first patent litigation and was paid, her faithful agent obligation was satisfied and extinguished with respect to that matter. The non-absolute loyalty principle then governed what obligations, if any, persisted afterward. By treating the faithful agent standard as engagement-scoped rather than relationship-scoped, the Board avoided a direct collision between the two principles. The practical teaching of this resolution is that the NSPE Code does not treat prior client relationships as generating perpetual trust obligations that survive into unrelated future matters — the faithful agent duty is a transactional rather than a relational commitment. This interpretation preserves engineer professional autonomy but leaves open the harder question of whether the faithful agent standard, read more expansively, might impose at minimum a proactive disclosure obligation before accepting adverse engagements involving former clients, even in unrelated matters.
The Board implicitly resolved the tension between engineer non-advocate objectivity and multi-party forensic engagement disclosure obligations by treating disclosure as the mechanism that reconciles rather than undermines objectivity. The case establishes that Engineer A's objectivity was not compromised by her sequential engagements because she disclosed her prior relationships proactively to each successive retaining party. This synthesis reveals a hierarchical principle structure: objectivity is the foundational value, disclosure is the procedural instrument that preserves it, and the appearance of impropriety raised during cross-examination is treated as an adversarial artifact rather than evidence of actual compromise. Critically, the Board's analysis implies that robust disclosure to retaining parties satisfies the engineer's ethical obligations even when that same disclosure history later becomes a weapon in opposing counsel's hands at trial. The tension identified in Q202 — that disclosure of prior adverse relationships could itself undermine the appearance of objectivity — is resolved in favor of transparency: the engineer's duty runs to the retaining parties and to the integrity of the engineering process, not to the management of jury perception. This prioritization teaches that appearance-based concerns generated by adversarial cross-examination do not elevate into independent ethical obligations requiring prophylactic recusal or preemptive report disclosures.
The Board's rejection of the legal profession advocacy analogy as applied to Engineer A reflects a principled but underexamined resolution of the tension between the inapplicability of attorney side-loyalty norms and the reality that conflict of interest disclosure standards have evolved over time, potentially in dialogue with legal ethics developments. By categorically distinguishing the engineer's role as an objective expert from the attorney's role as an advocate, the Board insulates engineering ethics from the stricter side-loyalty prohibitions that govern lawyers. However, this categorical distinction carries an internal tension: the very adversarial context in which forensic engineers operate — retained by parties, cross-examined by opposing counsel, evaluated by triers of fact — is structurally identical to the context that generates attorney loyalty obligations. The Board's resolution prioritizes the functional character of the engineer's role (objective analysis) over the structural character of the context (adversarial proceeding), concluding that function determines ethical obligation rather than context. This principle prioritization teaches that engineering ethics resists contextual contamination from adjacent professional norms, but it also means that the NSPE framework may be slower to develop prophylactic conflict standards than legal ethics, leaving forensic engineers exposed to appearance-of-impropriety challenges that the legal profession would resolve through categorical recusal rules. The long-term coherence of this position depends on whether the engineering profession's disclosure norms continue to evolve independently or whether adversarial context eventually forces convergence with legal ethics standards.
Conflict of Interest Disclosure Obligation Engineer A Prior Relationship Disclosure to Attorney X and ABC Manufacturing
The evolved code standard required Engineer A to disclose known or potential conflicts rather than avoid all conflict situations; this disclosure obligation governed her conduct across all three sequential engagements.
Engineer A was constrained by the evolved disclosure-based conflict standard to promptly disclose her prior professional relationships — including her prior service to ABC Manufacturing in patent litigation — to each new retaining party (Attorney X and subsequently ABC Manufacturing again) at or before accepting each new engagement, rather than being required to avoid the engagements altogether.
NSPE Code of Ethics evolved conflict disclosure provisions; BER Case No. 98-4
codes were changed, and engineers were implored to disclose all known or potential conflicts of interest to their employers or clients, by promptly informing them of any business association, interest, or other circumstance that could influence or appear to influence their judgment or the quality of their services.
At or before acceptance of each new forensic engagement
the Board has noted on at least one previous occasion, one of the most common ethical issues that face engineers in their professional lives is the issue of conflicts of interest.
Cross-examination by opposing counsel during Engagement 3 trial proceedings
during cross-examination at trial, opposing counsel questions Engineer A's previous relationship both in defense of and in litigation with ABC Manufacturing
Entity1 occurs entirely within the duration of Entity2
Should Engineer A accept the adverse plaintiff retention against former client ABC Manufacturing in the unrelated product liability matter, and on what ethical basis?
After having served ABC Manufacturing as an expert witness in patent litigation, Engineer A is approached by Attorney X to serve as an expert witness against ABC Manufacturing in an entirely unrelated product liability matter. Engineer A must decide whether accepting this adverse engagement is ethically permissible and, if so, how to proceed.
Accept Attorney X's retention in the product liability matter, proactively disclosing to Attorney X — before or at the moment of acceptance — that Engineer A previously served ABC Manufacturing in patent litigation, asserting that the matters are entirely unrelated and no confidential information from the prior engagement is implicated, thereby satisfying the evolved disclosure-based conflict standard.
Decline Attorney X's retention on the basis that serving against a former client in any matter — regardless of relatedness — creates an impermissible conflict of interest or violates a perpetual duty of loyalty owed to ABC Manufacturing as a former client, applying the older categorical avoidance standard rather than the evolved disclosure-based standard.
Accept Attorney X's retention without proactively disclosing the prior ABC Manufacturing relationship, proceeding on the assumption that the unrelated nature of the matters renders disclosure unnecessary, thereby risking a violation of the evolved conflict-of-interest disclosure obligation and exposing Engineer A to the appearance-of-impropriety challenge raised during cross-examination.
Is Engineer A obligated to proactively disclose her intervening adverse engagement against ABC Manufacturing to ABC Manufacturing before accepting re-retention, and what does adequate disclosure require?
Before accepting the second patent litigation engagement from ABC Manufacturing — which follows Engineer A's intervening service as an adverse expert for Attorney X against ABC Manufacturing — Engineer A must decide whether and how to disclose her complete prior service history, including the adverse product liability engagement, to ABC Manufacturing so that ABC can make a fully informed retention decision.
Before accepting the second patent litigation retention, affirmatively inform ABC Manufacturing that Engineer A served as an expert witness against ABC Manufacturing in the intervening product liability matter retained by Attorney X, providing sufficient detail for ABC Manufacturing to make an informed retention decision with full awareness of the complete service history.
Accept the second retention without volunteering information about the adverse intervening engagement, on the assumption that ABC Manufacturing is aware of the product liability litigation and has implicitly consented to re-retention by extending the offer, thereby treating ABC Manufacturing's silence as informed acquiescence rather than a gap in disclosure.
Disclose the adverse intervening engagement to ABC Manufacturing in writing and require explicit written acknowledgment and consent before proceeding with the second retention, going beyond the minimum disclosure obligation to create a documented record that ABC Manufacturing accepted re-retention with full knowledge of Engineer A's prior adverse service.
How should Engineer A respond to opposing counsel's cross-examination challenge that frames her multi-party engagement history as improper side-switching analogous to attorney advocacy norms?
During cross-examination in the product liability matter, opposing counsel challenges Engineer A's credibility and professional integrity by implying that her sequential service to ABC Manufacturing and then against ABC Manufacturing constitutes improper side-switching analogous to an attorney changing sides — importing legal profession advocacy norms into the engineering ethics context. Engineer A must decide how to respond to this challenge while maintaining professional independence and objectivity.
Affirmatively and clearly assert that engineers serving as expert witnesses are not advocates, that no engineering equivalent of the plaintiff's bar or defense bar exists or should constrain professional independence, that each engagement was in an entirely unrelated matter, and that the switching-sides prohibition applicable to attorneys does not govern engineers rendering objective technical opinions — directly rebutting the legal profession analogy without capitulating to the implication of impropriety.
Acknowledge that the sequential engagement history creates an appearance of impropriety, concede that reasonable persons might perceive a conflict, and defer to the court's judgment about the weight to be given her testimony — effectively validating opposing counsel's framing and undermining the ethical permissibility of her engagements by treating appearance of conflict as equivalent to actual conflict.
Prior to cross-examination, proactively prepare and submit a written disclosure statement to the court and all parties documenting the complete multi-party engagement history, the unrelated nature of each matter, and the absence of shared confidential information — addressing the appearance-of-impropriety risk before opposing counsel can exploit it, rather than waiting to respond reactively under cross-examination.
Engineer A — Forensic Expert Witness Under Cross-Examination
Before accepting the adverse product liability engagement, must Engineer A conduct and document a substantive assessment of whether confidential information from the prior ABC Manufacturing patent litigation engagement could be deployed against ABC Manufacturing's interests, and what must she do if such information is potentially implicated?
Engineer A must assess whether the confidential or proprietary information she acquired about ABC Manufacturing's technical processes and litigation strategy during the first patent litigation engagement could be implicated in — or provide an unfair advantage in — the subsequent adverse product liability engagement, and must determine what safeguards, if any, are required before proceeding.
Before accepting Attorney X's retention, systematically identify and document all technical, strategic, and proprietary information acquired during the ABC Manufacturing patent litigation engagement, assess whether any such information is relevant to or could provide an advantage in the product liability matter, and condition acceptance on a determination that no such information is implicated — disclosing the audit process and conclusions to Attorney X as part of the proactive disclosure obligation.
Accept the retention on the basis that the patent litigation and product liability matters are facially unrelated in subject matter, without conducting a formal audit of potentially overlapping confidential information, relying on the general principle that unrelated matters do not trigger the former-client consent prerequisite — accepting the risk that unanticipated informational overlap may later be identified and challenged.
Contact ABC Manufacturing prior to accepting Attorney X's retention, disclose the nature of the proposed adverse engagement, and seek ABC Manufacturing's explicit informed consent — treating the former-client relationship as sufficient to trigger the consent prerequisite regardless of the unrelatedness of the matters, thereby applying a more conservative standard than the NSPE Code strictly requires but eliminating the risk of confidential information challenge.
Should the NSPE Board apply the categorical conflict-avoidance standard or the evolved disclosure-based standard when evaluating Engineer A's sequential adverse engagements, and does the appearance of impropriety alone constitute a code violation?
The NSPE Board of Ethical Review must determine the appropriate institutional standard to apply when evaluating Engineer A's sequential multi-party engagement history — specifically, whether to apply the older categorical conflict-avoidance standard that would prohibit adverse engagements against former clients, or the evolved disclosure-based standard that permits such engagements in unrelated matters provided proactive disclosure is made, and whether the appearance of impropriety alone is sufficient to constitute a code violation.
Apply the profession's evolved disclosure-based conflict-of-interest standard, find that Engineer A's sequential engagements in unrelated matters with proactive disclosure did not constitute an actual conflict under the NSPE Code, and explicitly hold that the appearance of impropriety — while a prudential concern — does not by itself constitute a code violation, thereby preserving individual engineering judgment autonomy and rejecting categorical prohibitions on adverse former-client engagements in unrelated matters.
Apply the older categorical conflict-avoidance standard, find that any adverse engagement against a former client — regardless of subject matter unrelatedness — constitutes a prohibited conflict of interest requiring the former client's consent or outright declination, and hold that Engineer A's acceptance of the Attorney X retention without ABC Manufacturing's consent violated the NSPE Code.
Apply the evolved disclosure-based standard and find no actual code violation, but additionally hold that the appearance of impropriety created by sequential adverse engagements imposes an independent prudential obligation on engineers to proactively address and document the unrelatedness of matters and absence of confidential information overlap before accepting adverse former-client retentions — creating a heightened procedural standard that goes beyond mere disclosure to require affirmative preemptive documentation.
Earlier era of 'avoid all conflicts' ethics codes before Later era of 'disclose conflicts' ethics codes
At one point in the past, engineering codes of ethics... specifically implored engineers to avoid all conflicts of interest... However, over time, the engineering profession came to the general conclusion... codes were changed, and engineers were implored to disclose all known or potential conflicts of interest
Earlier era of 'avoid all conflicts' ethics codes
Later era of 'disclose conflicts' ethics codes
Engagement 1 (Engineer A retained by ABC Manufacturing, patent litigation review) before Engagement 2 (Engineer A retained by Attorney X, product liability against ABC Manufacturing)
Engineer A was retained by ABC Manufacturing... Several years later, Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing
Engagement 1 (Engineer A retained by ABC Manufacturing, patent litigation review)
Engagement 2 (Engineer A retained by Attorney X, product liability against ABC Manufacturing)
Engagement 1 (Engineer A retained by ABC Manufacturing, patent litigation review) before Engagement 3 (Engineer A retained by ABC Manufacturing, second patent litigation matter)
Engineer A was retained by ABC Manufacturing... Several years later [x2]... Engineer A was again retained by ABC Manufacturing in a different patent litigation matter not related to either of the preceding events
Engagement 3 (Engineer A retained by ABC Manufacturing, second patent litigation matter)
Engagement 1 work (patent litigation review) before Engagement 2 work (product liability matter)
the matters at issue are not in any way related to any previous work Engineer A performed for either of her former clients
Engagement 1 work (patent litigation review)
Engagement 2 work (product liability matter)
Engagement 2 (Engineer A retained by Attorney X, product liability against ABC Manufacturing) before Engagement 3 (Engineer A retained by ABC Manufacturing, second patent litigation matter)
Several years later, Engineer A was retained by Attorney X... Several years later, Engineer A was again retained by ABC Manufacturing in a different patent litigation matter
Engineer A Attorney Advocacy Norm Imputation Resistance Cross-Examination
Opposing counsel's cross-examination implied impropriety based on Engineer A's sequential service on opposing sides — Engineer A was constrained to affirmatively assert and maintain her professional independence rather than acquiescing to the false attorney-engineer parallel.
Attorney Advocacy Norm Parallel Imputation Resistance Constraint
During cross-examination, Engineer A was required to affirmatively resist and correct opposing counsel's implication that her sequential service on opposing sides of ABC Manufacturing litigation was improper — asserting that engineers, unlike attorneys, are not bound by side-loyalty professional conduct rules, and that her duty in each engagement was to provide objective technical expertise to the trier of fact rather than advocacy for the retaining party.
NSPE Code professional independence provisions; BER Case No. 98-4
During cross-examination at trial in the second ABC Manufacturing patent litigation
Engineer A Conflict of Interest Appearance vs Actual Conflict Discrimination in Multi-Party Litigation
Conflict of Interest Appearance vs. Actual Conflict Discrimination Capability
Engineer A possessed the capability to recognize that her multi-party litigation service history created an appearance of conflict that did not rise to the level of an actual prohibited conflict of interest under the NSPE Code of Ethics
Engineer A served ABC Manufacturing twice in patent litigation and then accepted retention by Attorney X in an unrelated product liability matter against ABC Manufacturing; opposing counsel implied impropriety
Accepting the Attorney X retention against ABC Manufacturing in an unrelated product liability matter despite prior service to ABC Manufacturing, correctly assessing that appearance of conflict does not equal actual conflict
Engineer A Conflict of Interest Code Evolution Historical Awareness in Multi-Party Litigation Context
Conflict of Interest Evolution Standard Compliance Capability
Engineer A demonstrated awareness of the evolved conflict-of-interest standard — from absolute avoidance to disclosure-based management — and applied the current standard by disclosing her prior relationships to retaining parties rather than categorically declining the engagement
Engineer A's management of her multi-party litigation service history under the evolved conflict-of-interest disclosure standard
Proactively disclosing prior relationships to Attorney X and ABC Manufacturing rather than applying the superseded absolute avoidance standard
As a result, codes were changed, and engineers were implored to disclose all known or potential conflicts of interest to their employers or clients, by promptly informing them of any business association, interest, or other circumstance that could influence or appear to influence their judgment or the quality of their services.
Engineer A Expert Independence in Adversarial Context
Throughout Engineer A's forensic expert engagements in adversarial proceedings
unlike attorneys, they are not 'advocates' in rendering their professional services
Engineer Non-Advocate Expert Independence State
Engineer A's role as expert in adversarial legal proceedings while maintaining engineering objectivity
engineers must analyze technical matters, weighing all appropriate considerations
they should not be expected to compromise their professional independence and autonomy
Engineer A's engagement as expert witness/consultant in adversarial legal matters involving former clients' opponents
Engineer A Expert Non-Advocate Independence Maintenance Across Three Engagements
Engineer A's sequential service on opposing sides of ABC Manufacturing litigation raised the question of whether her independence had been compromised — the non-advocate constraint required that each engagement be conducted with full objectivity regardless of which side retained her.
Engineer Expert Non-Advocate Independence Constraint
Engineer A was required to maintain full objectivity and non-advocate status in each of her three separate engagements — twice for ABC Manufacturing and once for the plaintiff against ABC Manufacturing — prohibiting her from allowing the retaining party's adversarial interests to shape her technical opinions, and requiring that her expert services in each matter be grounded in independent professional judgment rather than advocacy for the retaining party.
Throughout all three sequential engagements
Engineer A First ABC Manufacturing Patent Litigation Retention
From initial retention by ABC Manufacturing through completion of first patent litigation services
Engineer A was retained by ABC Manufacturing for the purpose of reviewing documents to form an opinion in a patent litigation matter in an area of Engineer A's expertise
Engineer A's professional relationship with ABC Manufacturing in first patent litigation matter
Completion of services and payment for first patent litigation matter
Engineer A performed the requested services and was paid for her work by ABC Manufacturing
ABC Manufacturing retaining Engineer A to review documents and form an opinion in patent litigation
Engineer A Forensic Expert Side-Switching Non-Application Assessment Unrelated Product Liability
Forensic Expert Side-Switching Conflict Assessment Capability
Engineer A possessed the capability to correctly assess that the side-switching prohibition did NOT apply to her acceptance of the product liability engagement because the matter was wholly unrelated to the prior patent litigation in which she served ABC Manufacturing — no same-matter side-switching occurred.
Engineer A evaluated whether her prior patent litigation service for ABC Manufacturing triggered the side-switching prohibition when she was retained adverse to ABC Manufacturing in an unrelated product liability matter
Correct determination that accepting Attorney X's retention in an unrelated product liability matter did not constitute impermissible side-switching against former client ABC Manufacturing
Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing in a matter not involving any aspect of the earlier patent litigation.
Engineer A Forensic Expert Witness Objectivity Maintained Across ABC Manufacturing and Attorney X Engagements
Forensic Expert Witness Objectivity Maintenance Capability
Engineer A was required to maintain full objectivity and non-advocate status in each of her three separate forensic engagements — twice for ABC Manufacturing and once for Attorney X — rendering opinions based solely on technical evidence and professional judgment independent of each retaining party's litigation interests.
Engineer A served as forensic expert across three sequential engagements involving two parties who were adverse to each other, requiring sustained objectivity independent of each retaining party's interests
Performance of requested services across three separate engagements for two different retaining parties with overlapping adverse relationships
Engineer A performed the requested services and was paid for her work by ABC Manufacturing.
Engineer A again performed the requested services and was paid for her work.
Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing
Engineer A Forensic Expert Witness Objectivity Maintenance Across ABC Manufacturing and Attorney X Engagements
Engineer A maintained forensic expert witness objectivity across all three engagements — twice for ABC Manufacturing in patent litigation and once for Attorney X in product liability — rendering technically grounded opinions independent of each retaining party's litigation interests
Engineer A's three separate forensic expert engagements across two clients in unrelated litigation matters
Serving as an objective expert for both ABC Manufacturing and Attorney X in separate, unrelated matters without compromising technical independence in favor of either retaining party
unlike attorneys, they are not 'advocates' in rendering their professional services, they should not be expected to compromise their professional independence and autonomy.
While all engineers must make professional decisions based upon a variety of considerations and factors, engineers must analyze technical matters, weighing all appropriate considerations.
Engineer A Individual Engineering Judgment Autonomy Preservation in ABC Manufacturing Adverse Engagement Decision
Individual Engineering Judgment Autonomy Preservation Against Categorical Prohibition Capability
Engineer A possessed the capability to exercise individualized professional judgment in deciding to accept the Attorney X engagement, recognizing that categorical prohibitions on adverse engagement against former clients in unrelated matters would improperly constrain professional autonomy
Engineer A's decision-making process in accepting the product liability engagement adverse to ABC Manufacturing, her former client
Making an individualized, multi-factor assessment of the permissibility of the Attorney X engagement rather than applying a categorical rule against adverse engagement with former clients
To do so would undermine the individual judgment, independence, and discretion that each engineer must exercise.
For a variety of reasons, some engineers might choose to decline an engagement that could place the engineer in a position adverse to the interests of a former client, even though the engagement is not in any way related to the engineer's earlier services to the client.
Engineer A Insider Knowledge Non-Deployment ABC Manufacturing Product Liability
Engineer A's prior access to ABC Manufacturing's confidential information in the patent litigation created a residual constraint on how she could deploy that knowledge when subsequently retained by opposing counsel, even in an unrelated matter.
Insider Knowledge Non-Deployment Against Former Client Constraint
When serving as expert for Attorney X in the product liability matter against ABC Manufacturing, Engineer A was prohibited from deploying any specialized insider knowledge — including confidential technical information, analytical assumptions, data gaps, or strategic vulnerabilities — gained during her prior patent litigation service to ABC Manufacturing, even though the product liability matter was substantively unrelated to the patent matter.
NSPE Code conflict of interest and faithful agent provisions; BER Case No. 98-4
Throughout the product liability engagement for Attorney X
Engineer A Legal Profession Advocacy Bar Analogy Rejection in Cross-Examination
Legal Profession Advocacy Bar Analogy Rejection Capability
Engineer A possessed the capability to recognize and resist opposing counsel's attempt to analogize her forensic expert role to the institutionalized plaintiff's bar/defense bar structure of the legal profession, asserting that engineers are not advocates and should not be expected to align permanently with one side of adversarial proceedings
Cross-examination by opposing counsel in the product liability matter against ABC Manufacturing, where counsel implied Engineer A acted improperly by serving both sides
Maintaining professional independence during cross-examination when opposing counsel implied impropriety by drawing a parallel between engineering and legal advocacy roles
It appears that the attorney was attempting to draw a parallel between the legal profession, where there is an institutionalized 'plaintiff's bar' and 'defense bar,' and the engineering profession.
However, while engineers may find themselves at times working within the confines of the legal adversarial profession, unlike attorneys, they are not 'advocates' in rendering their professional services, they should not be expected to compromise their professional independence and autonomy.
Engineer A Multi-Party Prior Relationship Proactive Disclosure to ABC Manufacturing Second Retention
Multi-Party Forensic Prior Relationship Proactive Disclosure Capability
Engineer A was required to possess the capability to proactively disclose to ABC Manufacturing, prior to or at the time of accepting the second patent litigation engagement, that she had previously served as an expert adverse to ABC Manufacturing in the product liability matter retained by Attorney X.
Engineer A was re-retained by ABC Manufacturing for a second patent litigation matter after having served adverse to ABC Manufacturing in the intervening product liability matter
Obligation to disclose prior adverse product liability service to ABC Manufacturing before accepting re-retention in the second patent litigation matter
Engineer A was again retained by ABC Manufacturing in a different patent litigation matter not related to either of the proceeding events.
Engineer A Multi-Party Prior Relationship Proactive Disclosure to Attorney X
Engineer A was required to possess the capability to proactively disclose to Attorney X, prior to or at the time of accepting the product liability engagement, that she had previously rendered professional services to ABC Manufacturing in patent litigation.
Engineer A accepted retention by Attorney X in a matter adverse to her former client ABC Manufacturing and was obligated to disclose the prior relationship proactively
Obligation to disclose prior ABC Manufacturing patent litigation service to Attorney X before accepting the adverse product liability engagement
Engineer A Non-Absolute Former Client Loyalty ABC Manufacturing Product Liability
Engineer A's sequential service on opposing sides of ABC Manufacturing litigation across unrelated matters required assessment of whether former client loyalty obligations created a perpetual bar to adverse engagement.
Non-Absolute Former Client Loyalty Perpetuity Prohibition Constraint
Engineer A's prior service to ABC Manufacturing in patent litigation did not create a perpetual duty of loyalty prohibiting her from accepting retention by opposing counsel in the unrelated product liability matter — the non-absolute loyalty constraint established that the faithful agent duty does not extend to barring all future adverse engagements, only those involving the same or related subject matter where confidential knowledge could be deployed.
NSPE Code Section II.4; BER Case No. 98-4
Engineer A was retained by ABC Manufacturing for the purpose of reviewing documents to form an opinion in a patent litigation matter.
Throughout the period following completion of the first ABC Manufacturing patent litigation engagement
Several years later, Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing in a matter not involving any aspect of the earlier patent litigation.
Engineer A Perpetual Loyal Devotion Non-Extension to ABC Manufacturing Recognition
Perpetual Loyal Devotion Non-Extension to Former Client Recognition Capability
Engineer A possessed the capability to recognize that her faithful agent and trustee obligations to ABC Manufacturing during the two prior patent litigation engagements did not create a perpetual absolute loyalty bar preventing her from accepting an adverse engagement in an unrelated product liability matter
Engineer A's decision to accept retention by Attorney X in a product liability matter adverse to ABC Manufacturing, her former client in two unrelated patent litigation matters
Accepting the Attorney X retention against ABC Manufacturing in the product liability matter, correctly assessing that prior faithful agent status does not create perpetual absolute loyalty
Being a 'faithful agent and trustee' to a client does not obligate an engineer to a duty of absolute devotion in perpetuity (See Code Section II.4.).
engineers do not have a duty of absolute loyalty under which the engineer can never take a position adverse to the interests of a former client.
Engineer A Post-Employment Duty of Trust Duration Assessment ABC Manufacturing
The 'several years' temporal gap between Engineer A's first ABC Manufacturing engagement and her subsequent adverse engagement raised the question of whether the duty of trust had sufficiently attenuated — the indeterminacy constraint required fact-specific assessment rather than automatic discharge.
Post-Employment Duty of Trust and Loyalty Duration Indeterminacy Constraint
Engineer A's duty of trust and loyalty to ABC Manufacturing following the first patent litigation engagement persisted for an indeterminate period — the mere passage of 'several years' between the first patent engagement and the product liability engagement did not automatically discharge the residual duty, requiring Engineer A to assess the continuing vitality of that duty in light of the specific facts, including the unrelated subject matter of the new engagement.
NSPE Code faithful agent provisions; BER Case No. 98-4
From completion of first ABC Manufacturing patent engagement through subsequent engagements
Engineer A Second ABC Manufacturing Retention Unrelated Matter Permissibility
After serving as expert against ABC Manufacturing in product liability litigation, Engineer A was again retained by ABC Manufacturing in a new patent matter, raising the question of whether prior service against ABC Manufacturing barred re-engagement.
Unrelated Matter Adverse Forensic Engagement Permissibility Constraint
Engineer A's acceptance of the second retention by ABC Manufacturing in a different patent litigation matter was ethically permissible only because that matter was unrelated to both the prior patent litigation and the product liability matter — the permissibility boundary required that no confidential information from the product liability engagement (in which Engineer A had served the opposing side) was relevant to or deployable in the new patent matter.
Several years later, Engineer A was again retained by ABC Manufacturing in a different patent litigation matter not related to either of the proceeding events.
At the time of accepting the second retention by ABC Manufacturing
Engineer A Unrelated Matter Adverse Engagement Permissibility Assessment ABC Manufacturing Product Liability
Unrelated Matter Adverse Forensic Engagement Permissibility Assessment Capability
Engineer A possessed the capability to correctly assess that her acceptance of retention by Attorney X in the product liability matter against ABC Manufacturing was ethically permissible because the matter was wholly unrelated to her prior patent litigation service for ABC Manufacturing.
Engineer A had previously served ABC Manufacturing in patent litigation and was then retained by opposing counsel in an unrelated product liability matter against ABC Manufacturing
Acceptance of the Attorney X retention in the product liability matter and subsequent defense of that acceptance under cross-examination at trial
Engineer A Unrelated Matter Product Liability Adverse Engagement Permissibility
Engineer A served ABC Manufacturing in patent litigation, then was retained by opposing counsel in an unrelated product liability matter against ABC Manufacturing, raising the question of whether this constituted an impermissible switching of sides.
Engineer A's acceptance of retention by Attorney X in the product liability matter against ABC Manufacturing was ethically permissible only because that matter was entirely unrelated to the prior patent litigation in which Engineer A had served ABC Manufacturing — the permissibility boundary required that no confidential information or specialized knowledge from the prior engagement was relevant to or deployable in the product liability matter.
At the time of accepting retention by Attorney X in the product liability matter
Engineer Expert Non-Advocate Independence Maintenance Engineer A Sequential Adversarial Engagements
Engineer A's ability to serve sequentially on opposing sides of unrelated matters was premised on her maintaining non-advocate expert independence in each engagement; the engineering profession's distinction from the legal advocacy model was central to the Board's permissibility finding.
Engineer A was constrained throughout all three engagements — two for ABC Manufacturing and one for plaintiff against ABC Manufacturing — to maintain full professional independence and objectivity as an expert witness, and was prohibited from adopting an advocate role aligned with any retaining party's adversarial interests.
NSPE Code of Ethics professional independence provisions; BER Case No. 98-4
Throughout all three forensic engineering engagements
Engineer Professional Autonomy Categorical Prohibition Non-Imposition Engineer A Adverse Engagement Decision
The Board acknowledged that some engineers might personally choose to decline adverse engagements involving former clients even in unrelated matters, but declined to elevate that personal choice into a mandatory Code requirement, preserving individual engineer discretion.
Engineer Professional Autonomy Categorical Prohibition Non-Subordination Constraint
The Board was constrained from issuing a categorical rule that any engineer accepting an engagement adverse to a former client in an unrelated matter violates the NSPE Code of Ethics, because such a categorical prohibition would undermine the individual judgment, independence, and discretion that each engineer must exercise.
NSPE Code of Ethics for Engineers; BER Case No. 98-4
However, the Board of Ethical Review is not prepared to say that an engineer who fails to follow this approach is somehow acting in violation of the NSPE Code of Ethics.
At time of BER deliberation on Engineer A's case
Such an approach would be impractical and compromise the autonomy and professional independence of engineers.
Engineering Profession Shifts Conflict Standard
Professional Bodies and Code-Setting Authorities, including NSPE
Potential for engineers to rationalize acceptance of engagements that create genuine conflicts under a disclosure framework
Reduced clarity about what constitutes a prohibited conflict, requiring more individual judgment
Shift in professional image from one of strict conflict avoidance to one of managed conflict disclosure
Practical workability of professional ethics standards
Preservation of engineer professional autonomy and independence
Protection of clients through transparency and disclosure rather than rigid exclusion
Pragmatic recognition of the realities of engineering practice
Protection of public and client interests through informed consent rather than blanket prohibition
Transparency and disclosure as the mechanism for managing conflicts
Create a more practical and workable ethical standard that preserves engineer autonomy and independence while still protecting clients and the public through transparency and disclosure
Analysis of practical realities of engineering practice across diverse contexts
Balancing of competing ethical principles at the profession-wide level
Code drafting and promulgation authority
Collective professional deliberation and ethics standard-setting
Historical; occurred at an unspecified point prior to the events in the case
Prior commitment to absolute avoidance of all conflicts of interest
Strict protection of professional image by eliminating any appearance of impropriety
The engineering profession collectively decided to revise ethics codes to replace the requirement to avoid all conflicts of interest with a requirement to disclose known or potential conflicts of interest, acknowledging that conflicts are a practical inevitability in engineering practice.
Engineering Profession Shifts Conflict Standard → No Violation Finding Issued
The historical shift in engineering ethics codes, from stricter loyalty-based conflict standards to disclosure-based standards, provided the normative framework within which the NSPE Board evaluated Engineer A's conduct and formally concluded that no ethical violation had been committed.
Had the profession retained the stricter loyalty-based conflict standard, Engineer A's sequential adverse engagements would likely have constituted a clear violation, and the Board's finding would have been different
Engineer A's conduct being evaluated against the current rather than historical standard
The profession's collective decision to revise ethics codes replacing prohibition with disclosure requirements
The revised standard being in effect at the time of the NSPE Board's deliberation
Engineering Profession Collectively (NSPE and member organizations); NSPE Board of Ethical Review (applying the standard)
Revised disclosure-based ethics standard + Engineer A's conduct not violating disclosure requirements = sufficient basis for no-violation finding
The evaluative framework for assessing Engineer A's conduct shifts from an absolute loyalty model to a matter-specific conflict model; conduct that might have been impermissible under older standards may be permissible under evolved standards
Spanning the period of all three engagements; formally recognized in the Discussion section of the ethics opinion
The historical shift in engineering ethics codes: from stricter loyalty-based conflict standards to more nuanced, matter-specific conflict analysis, is recognized as an established fact contextualizing Engineer A's conduct across her three engagements.
Expert Witness Conflict of Interest Disclosure Standard
Engineer A; Attorney X; ABC Manufacturing's counsel
Governs Engineer A's duty to disclose prior professional relationships with ABC Manufacturing to retaining counsel (both Attorney X and ABC Manufacturing's counsel) before accepting engagements, ensuring all parties are aware of the history of service for and against the same party
{'relationship_status': 'Former client, now adverse party', 'matter_relatedness': 'Unrelated to prior work'}
One of two former clients of Engineer A who is now an adverse party in the current litigation matter. The prior engagement was unrelated to the current matter, and the Board found no prohibited conflict of interest arising from Engineer A's prior service.
{'type': 'adverse_to', 'target': 'Plaintiff-Side Litigation Retaining Attorney'}
{'type': 'formerly_retained', 'target': 'Engineer A Multi-Party Litigation Expert'}
engineers do not have a duty of absolute loyalty under which the engineer can never take a position adverse to the interests of a former client
The second of two former clients of Engineer A who is now an adverse party in the current litigation matter. The prior engagement was unrelated to the current matter.
Engineer A's professional conduct is now a matter of public record in litigation; her credibility as an expert witness is directly challenged; the ethical propriety of her prior engagement decisions is thrust into scrutiny
During cross-examination in Engagement 3 (third engagement with ABC Manufacturing)
During cross-examination in the third engagement, opposing counsel publicly implied that Engineer A had acted improperly by having previously worked both for and against ABC Manufacturing, casting doubt on her professional integrity before the court.
Engineer A transitions from active engagement to post-engagement status with ABC; a professional history record is established; confidentiality obligations persist indefinitely
Engineer A received payment from ABC Manufacturing upon completion of the first patent litigation review engagement, formalizing the prior professional relationship and creating a record of service.
Legal Profession Advocacy Norm Non-Importation Engineer A Cross-Examination
Opposing counsel attempted to imply impropriety by suggesting Engineer A's sequential service on opposing sides mirrored an attorney switching sides, invoking the institutionalized plaintiff's/defense bar distinction; the Board rejected this analogy as inapplicable to engineering expert witnesses.
Legal Profession Advocacy Norm Engineering Non-Importation Constraint
Opposing counsel was constrained from successfully imputing attorney-style side-loyalty obligations to Engineer A by drawing a parallel between the institutionalized plaintiff's bar/defense bar structure of the legal profession and engineering expert witness practice; Engineer A was not bound by attorney advocacy norms and could not be required to conform to them.
NSPE Code of Ethics for Engineers professional independence provisions; BER Case No. 98-4
During cross-examination of Engineer A in product liability litigation
In this connection, the Board is also concerned by the attorney's implication under the facts that Engineer A may have acted improperly
National Society of Professional Engineers
Engineer A; NSPE Board of Ethical Review
Primary normative authority for evaluating whether Engineer A's sequential service as expert witness for and against ABC Manufacturing in unrelated matters constitutes improper conduct; grounds analysis of objectivity, independence, and conflict of interest obligations
NSPE BER Conflict of Interest Appearance vs Actual Conflict Institutional Discrimination in Engineer A Case
The NSPE Board of Ethical Review demonstrated the capability to distinguish between the appearance of a conflict of interest and an actual prohibited conflict, concluding that Engineer A's multi-party service history created only an appearance that did not constitute a code violation
BER review of Engineer A's acceptance of adverse forensic engagement against former client ABC Manufacturing in unrelated product liability matter
Formal BER ruling that Engineer A's conduct did not rise to the level of a prohibited conflict of interest despite the appearance of impropriety raised by opposing counsel
In this connection, the Board is also concerned by the attorney's implication under the facts that Engineer A may have acted improperly, with the suggestion that Engineer A's action may have constituted a conflict of interest.
NSPE BER Individual Engineering Judgment Autonomy Preservation Institutional Recognition in Engineer A Case
The NSPE Board of Ethical Review demonstrated the institutional capability to recognize that imposing a categorical prohibition on adverse engagement against former clients in unrelated matters would undermine individual engineering judgment, independence, and discretion, and declined to impose such a prohibition
BER institutional analysis of whether to impose a categorical prohibition on adverse engagement against former clients in unrelated matters
BER ruling expressly declining to find a code violation, stating that doing so 'would undermine the individual judgment, independence, and discretion that each engineer must exercise'
NSPE BER Legal Profession Advocacy Bar Analogy Rejection Institutional Assessment in Engineer A Case
The NSPE Board of Ethical Review demonstrated the capability to identify and reject opposing counsel's attempt to import the legal profession's plaintiff's bar/defense bar structure into engineering ethics, articulating the fundamental distinction between engineer-as-objective-expert and attorney-as-advocate
BER institutional review of the ethical implications of opposing counsel's cross-examination strategy in the Engineer A product liability matter
BER analysis expressly noting the attorney's attempt to draw a parallel with the legal profession and rejecting it as inconsistent with engineering professional independence
NSPE BER Perpetual Loyal Devotion Non-Extension Institutional Recognition in Engineer A Case
The NSPE Board of Ethical Review demonstrated the institutional capability to recognize and articulate that faithful agent and trustee status does not create a duty of absolute devotion in perpetuity, and that engineers are not categorically barred from adverse engagement against former clients in unrelated matters
BER institutional analysis of the scope of faithful agent obligations in the context of Engineer A's multi-party forensic service history
BER ruling expressly stating that 'Being a faithful agent and trustee to a client does not obligate an engineer to a duty of absolute devotion in perpetuity' and finding Engineer A's conduct permissible
While engineers clearly have certain basic professional obligations to their employers and clients to protect their interests, engineers do not have a duty of absolute loyalty under which the engineer can never take a position adverse to the interests of a former client.
NSPE Code of Ethics for Engineers - Section II.4
NSPE Code of Ethics for Engineers, Section II.4 (Faithful Agent and Trustee)
Being a 'faithful agent and trustee' to a client does not obligate an engineer to a duty of absolute devotion in perpetuity (See Code Section II.4.)
NSPE Board of Ethical Review in analyzing Engineer A's obligations to former clients
Cited to define the scope and limits of an engineer's duty as a 'faithful agent and trustee' to clients, establishing that this duty does not require absolute perpetual loyalty adverse to professional independence
NSPE Conflict of Interest Disclosure Evolution
Engineering professional societies through iterative code revision
Historical Evolution of Conflict of Interest Standards in Engineering Codes of Ethics
over time, the engineering profession came to the general conclusion that by the very nature of the role of the engineer in society, conflicts of interests were virtually an immutable fact of professional engineering practice
NSPE Board of Ethical Review to contextualize the current conflict of interest analysis
The Board references the historical shift in engineering codes from requiring avoidance of all conflicts of interest to requiring disclosure of known or potential conflicts — an authoritative expert interpretation of how the profession's collective understanding of conflict of interest obligations has evolved over time
Ongoing professional consensus development
Engineer A is formally cleared of ethical wrongdoing; the implied impropriety from cross-examination is officially rebutted; a precedent is established for similar future cases; the matter-specific conflict analysis is validated as the operative standard
Conclusion of NSPE ethics review process (post all three engagements)
The NSPE Board of Ethical Review formally concluded that Engineer A committed no ethical violation, establishing an authoritative ruling that her sequential engagements for and against ABC Manufacturing were permissible under applicable professional standards.
Non-Absolute Former Client Loyalty Engineer A ABC Manufacturing Adverse Product Liability Engagement
Engineer A had previously served ABC Manufacturing as expert witness in two patent litigation matters; she subsequently accepted retention by Attorney X representing a plaintiff against ABC Manufacturing in an unrelated product liability matter; the Board found no perpetual loyalty obligation barred this engagement.
Engineer A's prior faithful agent obligations to ABC Manufacturing in two patent litigation matters did not create a perpetual duty of absolute loyalty prohibiting her from accepting retention by Attorney X in the unrelated product liability matter adverse to ABC Manufacturing; the faithful agent standard does not obligate absolute devotion in perpetuity.
NSPE Code of Ethics Section II.4; BER Case No. 98-4
At time of Engineer A's acceptance of Attorney X retention in product liability matter
Payment to Engineer A for services finishes Engagement 1 (ABC Manufacturing, patent litigation review)
Engagement 1 (ABC Manufacturing, patent litigation review)
Entity1 and Entity2 end at the same time, Entity2 starts first
Payment to Engineer A for services finishes Engagement 3 (ABC Manufacturing, second patent litigation matter)
Engineer A again performed the requested services and was paid for her work
Engagement 3 (ABC Manufacturing, second patent litigation matter)
Engineer A now occupies an adversarial position relative to a former client; the 'unrelated matter' characterization becomes ethically load-bearing; the conflict of interest question is activated and must be resolved
Beginning of second engagement (Engagement 2), several years after Engagement 1
At the moment Engineer A accepted retention by Attorney X against ABC Manufacturing, a prior professional relationship with ABC Manufacturing already existed as an established fact, creating a potential conflict of interest condition.
Was it ethical for Engineer A to provide services to the parties in the manner described under the facts?
At what point, if any, was Engineer A obligated to proactively disclose her prior relationship with ABC Manufacturing to Attorney X before accepting the adverse plaintiff retention, and what specific information would that disclosure have needed to include to satisfy the NSPE Code's faithful agent standard?
Did Engineer A have any obligation to disclose to ABC Manufacturing, before accepting the second patent litigation retention, that she had previously provided expert services adverse to ABC Manufacturing in the product liability matter, and would ABC Manufacturing's silence or failure to object constitute implied consent?
Does the fact that opposing counsel was able to raise a plausible appearance of impropriety during cross-examination suggest that Engineer A had an independent obligation to preemptively address her multi-party engagement history in her expert report or testimony, even if no actual conflict existed?
What confidential or proprietary information about ABC Manufacturing's technical processes or litigation strategy might Engineer A have acquired during the first patent litigation retention, and does the Board's analysis adequately account for the risk that such insider knowledge could have been inadvertently deployed during the adverse product liability engagement?
Does the principle that loyalty to a former client is bounded and non-absolute conflict with the principle that an engineer must act as a faithful agent or trustee, given that the faithful agent standard could be read to impose a continuing duty of trust that survives the termination of a specific engagement?
Does the principle that an engineer's non-advocate objectivity permits engagement across opposing parties in unrelated matters conflict with the principle that multi-party forensic engagement creates disclosure obligations, since robust disclosure of prior adverse relationships could itself undermine the appearance of the very objectivity it is meant to protect?
Does the principle that the switching-sides prohibition does not apply to unrelated matters conflict with the principle that engineer professional autonomy must be preserved against blanket prohibitions, in that the former principle implicitly concedes a domain where side-switching is prohibited, potentially creating a categorical rule that constrains the very autonomy the latter principle seeks to protect?
Does the principle that the legal profession's advocacy norms are inapplicable to engineers conflict with the principle that conflict of interest disclosure obligations have evolved over time, given that the historical evolution of NSPE disclosure standards may itself have been influenced by analogous developments in legal ethics, making the boundary between the two professions' norms less categorical than the Board implies?
From a deontological perspective, did Engineer A fulfill her duty as a faithful agent and trustee to each successive client by proactively disclosing prior relationships before accepting each new engagement, regardless of whether those matters were factually unrelated?
From a consequentialist perspective, did the cumulative outcome of Engineer A's sequential engagements across opposing sides produce net benefit to the integrity of the engineering expert witness system, or did the appearance of impropriety raised during cross-examination undermine public trust in forensic engineering services in ways that outweigh the individual permissibility of each engagement?
From a virtue ethics perspective, did Engineer A demonstrate the professional virtues of integrity, impartiality, and practical wisdom by accepting engagements on opposing sides of matters involving the same corporate entity across different litigation contexts, and does the pattern of her conduct reflect the character of a trustworthy forensic expert or reveal a disposition toward opportunistic availability?
From a deontological perspective, does the categorical distinction between an engineer's role as an objective expert and an attorney's role as an advocate create a principled duty-based reason to reject the importation of legal profession side-loyalty norms into engineering ethics, or does the shared adversarial context impose analogous loyalty duties that Engineer A violated by serving opposing sides involving the same corporate party?
Would the Board's ethical analysis have changed if Engineer A had failed to proactively disclose her prior relationship with ABC Manufacturing when retained by Attorney X, and would that omission have converted an otherwise permissible sequential engagement into an actual conflict of interest rather than a mere appearance of one?
What if the product liability matter in which Attorney X retained Engineer A against ABC Manufacturing had involved technical subject matter substantially overlapping with the earlier patent litigation in which Engineer A had served ABC Manufacturing — would the unrelated-matter permissibility principle have still shielded Engineer A from an ethical violation, or would the deployment of insider knowledge have created an actual conflict?
Would the ethical outcome have differed if Engineer A had declined the second ABC Manufacturing retention after having served against ABC Manufacturing in the product liability matter, and would such a refusal have been ethically required, merely prudent, or unnecessarily self-limiting given the Board's finding that no absolute loyalty obligation persists to former clients in unrelated matters?
What if opposing counsel's cross-examination had succeeded in persuading the trier of fact that Engineer A's sequential engagements demonstrated bias rather than independence — would the resulting reputational and evidentiary harm to the engineering profession have obligated the NSPE Board to impose a prophylactic disclosure or recusal standard even in the absence of an actual ethical violation, and would such a standard have been consistent with preserving individual engineering judgment autonomy?
NSPE Board of Ethical Review (inferred from case analysis)
Sequential Party Representation Ethics Standard (derived from BER analysis)
Sequential Party Representation Ethics Standard
Several years later, Engineer A was again retained by ABC Manufacturing in a different patent litigation matter not related to either of the proceeding events
Several years later, Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing in a matter not involving any aspect of the earlier patent litigation
Engineer A; NSPE Board of Ethical Review; opposing counsel
Directly addresses the novel ethical question of whether an engineer who has served as expert witness for a party (ABC Manufacturing) and later against that same party (on behalf of a plaintiff) and then again for that party acts improperly — specifically whether such sequential, unrelated engagements constitute an appearance of impropriety or a legitimate exercise of independent professional judgment
Switching Sides Prohibition Non-Application Engineer A Unrelated Product Liability Matter
The switching-sides bar applies only where the new matter shares subject matter, confidential information, or specialized knowledge from the prior engagement; the factual unrelatedness of the three matters meant the bar was inapplicable to Engineer A's sequential service pattern.
Switching Sides Adversarial Proceeding Confidential Access Bar Constraint
The switching-sides prohibition did not apply to Engineer A's acceptance of the product liability engagement adverse to ABC Manufacturing because the product liability matter was entirely unrelated to the prior patent litigation matters in which Engineer A served ABC Manufacturing, and no confidential information from the prior engagements was relevant to or deployable in the new matter.
NSPE Code of Ethics Section II.4.b; BER Case No. 98-4
This is particularly true in the present case, where the matters at issue are not in any way related to any previous work Engineer A performed for either of her former clients.
At time of Engineer A's acceptance of Attorney X retention
Unrelated Matter Adverse Engagement Permissibility Boundary Engineer A ABC Manufacturing Product Liability
The Board's permissibility finding rested on the factual unrelatedness of the three matters and the absence of any confidential information nexus between the prior ABC Manufacturing engagements and the new product liability matter.
Unrelated Matter Adverse Former Client Engagement Permissibility Boundary Constraint
Engineer A's acceptance of retention by Attorney X in the product liability matter adverse to ABC Manufacturing was within the permissible boundary established by the NSPE Code because the product liability matter was entirely unrelated to the prior patent litigation matters, and no confidential information from those prior engagements was implicated in the new matter.
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.83
Appearance without actual conflict triggers disclosure obligations but not prohibition; the Board declines to conflate appearance with actuality
source_field=tensionresolution; confidence=0.86
source_field=tensionresolution; confidence=0.8
source_field=tensionresolution; confidence=0.85
The disclosure standard prevails over the historical absolute avoidance standard; the profession's own evolution resolves the tension in favor of disclosure-and-management
source_field=tensionresolution; confidence=0.88
Engineering's non-advocate identity resolves the tension in favor of independence; the attorney's analogy is rejected as inapplicable to the engineering profession
source_field=tensionresolution; confidence=0.87
Engineering's distinct professional identity prevails; the legal analogy is inapplicable and the conflict challenge based on it is rejected
Objectivity prevails as the core professional virtue; loyalty to former clients cannot override the engineer's obligation to render objective technical judgment in subsequent unrelated engagements
Objectivity is maintained by treating each engagement as independent; the unrelated nature of the matters supports rather than undermines this independence
source_field=tensionresolution; confidence=0.89
The factual independence of the patent and product liability matters means the prohibition is not triggered; opposing counsel's implication of impropriety misapplies the principle by ignoring the unrelated-matter exception
Defeasibility edge from constraintstatement
source_field=constraintstatement; confidence=0.9
The Former Client Adversarial Proceeding Consent Prerequisite Constraint did NOT apply to Engineer A's acceptance of the product liability engagement because that matter was entirely unrelated to the prior patent litigation — the consent prerequisite is triggered only where the new engagement involves the same project, proceeding, or subject matter in which specialized confidential knowledge was gained on behalf of the former client, not where the matters are factually and substantively distinct.
Professional autonomy prevails as a systemic constraint on ethics code interpretation; the Board preserves engineer discretion even while acknowledging that individual engineers may choose more conservative approaches
source_field=tensionresolution; confidence=0.84
source_field=constraintstatement; confidence=0.83
Engineer A was required to proactively disclose to Attorney X, prior to or at the time of accepting the product liability engagement, that she had previously rendered professional services to ABC Manufacturing in patent litigation — enabling Attorney X to make an informed decision about retaining Engineer A with full knowledge of the prior relationship.
source_field=tensionresolution; confidence=0.82
Disclosure satisfies the ethical obligation; the absence of actual conflict means prohibition is not required, but transparency about the full engagement history remains obligatory
Engineer A was required to proactively disclose to ABC Manufacturing, prior to or at the time of accepting the second patent litigation engagement, that she had previously rendered professional services to Attorney X in the product liability matter adverse to ABC Manufacturing — enabling ABC Manufacturing to make an informed decision about re-retaining Engineer A with full knowledge of the intervening adverse engagement.
Bounded loyalty is reconciled with professional autonomy by limiting the loyalty obligation to the scope and duration of the original engagement
source_field=constraintstatement; confidence=0.87
Under the evolved NSPE conflict-of-interest standard, Engineer A was not required to absolutely avoid all engagements involving ABC Manufacturing after the first patent litigation — instead, the operative constraint required prompt and complete disclosure of all prior relationships to each new retaining party, allowing the retaining party to make an informed decision, rather than imposing an absolute bar on any engagement touching a former client.
source_field=tensionresolution; confidence=0.91
Loyalty obligations from the concluded patent engagement did not extend to bar adverse participation in the unrelated product liability matter; Engineer A retained professional independence to serve Attorney X
Bounded loyalty prevails; absolute perpetual loyalty is rejected as impractical and autonomy-compromising
source_field=tensionresolution; confidence=0.92
Because the matters were factually and legally unrelated, the loyalty and confidentiality obligations from the prior patent engagement did not extend to bar adverse participation in the unrelated product liability matter; the Absolute Loyalty Prohibition to Former Clients principle confirms that loyalty does not attach perpetually to parties
Engineer A's multi-party service history is evidence of her independence as a technical expert rather than evidence of impropriety; the non-advocate principle supports the permissibility of her engagement pattern
The challenge fails because it does not identify an actual ethics violation; the engineer's prior relationships, properly disclosed, do not impair her independence or integrity in the current engagement
source_field=tensionresolution; confidence=0.78
The factual independence of the matters means the switching-sides prohibition is not triggered; the challenge misapplies the principle
The Switching Sides Adversarial Proceeding Confidential Access Bar Constraint did NOT apply to Engineer A's sequential engagements because each engagement involved a factually distinct and substantively unrelated matter — the switching-sides prohibition is triggered by confidential access to information relevant to the new adverse matter, not by the mere fact of prior service to the opposing party in an unrelated proceeding.
The unrelated-matter condition distinguishes this case from switching-sides prohibition; no confidential information bridge exists between the prior patent matters and the current product liability matter
Engineer A's prior service to ABC Manufacturing in patent litigation did not create a perpetual obligation of loyalty that would bar her from subsequently serving as an expert against ABC Manufacturing in the unrelated product liability mat
Engineer A's role across all three engagements was as an objective technical expert providing independent analysis, not as an advocate for any party; the fact that she served both ABC Manufacturing and its adversary in unrelated matters is
Engineer A's acceptance of the product liability engagement against ABC Manufacturing was ethically permissible because the matter was entirely unrelated to the prior patent litigation in which she had served ABC Manufacturing, and no confi
Engineer A was obligated to maintain full objectivity in each of her three engagements regardless of which party retained her, and her service to both ABC Manufacturing and its adversary across unrelated matters does not impair this objecti
Engineer A's history of serving ABC Manufacturing twice in patent litigation and then serving Attorney X adversely against ABC Manufacturing in product liability litigation required proactive disclosure of the full engagement history to all
The Former Client Adversarial Participation Prohibition does not apply to Engineer A's engagement by Attorney X because the product liability matter did not involve any aspect of the earlier patent litigation — no specialized knowledge gain
Opposing counsel's cross-examination implying that Engineer A acted improperly by serving both ABC Manufacturing and its adversary across unrelated matters constitutes a bad-faith challenge that mischaracterizes permissible professional con
The Switching Sides Prohibition does not apply to Engineer A's engagement by Attorney X because the product liability matter was entirely unrelated to the patent litigation matters in which Engineer A served ABC Manufacturing; the prohibiti
Engineer A was obligated to recognize that her prior service to ABC Manufacturing in patent litigation did not create a perpetual duty of loyalty that would bar her from subsequently serving as an expert against ABC Manufacturing in an enti
Engineer A was obligated to recognize that her prior faithful agent obligations to ABC Manufacturing in two unrelated patent litigation matters did not create a duty of absolute loyalty in perpetuity that would bar her from accepting retent
Engineer A was obligated to maintain full objectivity and non-advocate status in each of her three separate engagements — twice for ABC Manufacturing in patent litigation and once for Attorney X in product liability litigation — rendering i
Engineer A was obligated to maintain objective, technically grounded professional opinions in each of her three engagements — two for ABC Manufacturing and one for Attorney X — functioning as an assistant to the trier of fact rather than as
Engineer A was obligated to recognize, assert, and document that her acceptance of retention by Attorney X in the product liability matter adverse to ABC Manufacturing was ethically permissible under the NSPE Code because the product liabil
Engineer A was obligated to recognize and assert that her acceptance of retention by Attorney X in the product liability matter against ABC Manufacturing was ethically permissible because that matter was entirely unrelated to the prior pate
Engineer A was obligated to comply with the evolved conflict-of-interest disclosure standard — disclosing known or potential conflicts to clients and employers — rather than applying the outdated absolute-avoidance standard, recognizing tha
Engineer A was obligated to proactively disclose to Attorney X, prior to or at the time of accepting the product liability engagement, that she had previously rendered professional services to ABC Manufacturing in a patent litigation matter
Engineer A was obligated to proactively disclose her prior service history with ABC Manufacturing — including both patent litigation engagements — to Attorney X before or at the time of accepting retention in the product liability matter, s
Engineer A was obligated to proactively disclose to ABC Manufacturing, prior to or at the time of accepting the second patent litigation engagement, that she had in the intervening period served as an expert against ABC Manufacturing in the
Engineer A was obligated to recognize and apply the principle that the appearance of a conflict of interest arising from her multi-party litigation service history — which reasonable persons might perceive — did not constitute an actual con
The NSPE Board of Ethical Review was obligated to recognize and apply the principle that the appearance of a conflict of interest does not constitute an actual conflict under the Code, and to decline to find a code violation based solely on
Engineer A was obligated to resist and reject opposing counsel's attempt to analogize her forensic expert role to the institutionalized plaintiff's bar or defense bar structure of the legal profession, affirmatively asserting that engineers
Engineer A was obligated to exercise individualized professional judgment in deciding whether to accept the Attorney X engagement — recognizing that while some engineers might choose to decline such engagements out of caution, her decision
Engineer A was obligated to assess whether the Former Client Adversarial Proceeding Consent Prerequisite applied to her acceptance of the product liability engagement against ABC Manufacturing, and to correctly determine that it did NOT app
Engineer A was obligated to correctly assess that the Switching Sides Forensic Expert Prohibition did NOT apply to her acceptance of the product liability engagement against ABC Manufacturing, because that matter was entirely unrelated to t
Engineer A was obligated, when subjected to opposing counsel's cross-examination implying impropriety in her multi-party litigation service history, to affirmatively assert and maintain her professional independence — including the ethical
Engineer A was obligated, during cross-examination, to affirmatively assert and maintain that her service to both ABC Manufacturing and Attorney X across unrelated matters was ethically permissible, and to resist opposing counsel's implicat
Absolute Loyalty Prohibition Invoked Against Perpetual Devotion Claim
Engineer A's acceptance of Attorney X's retention adverse to ABC Manufacturing
NSPE Code Section II.4 faithful agent and trustee obligation
Engineer Professional Autonomy and Independence Preservation Principle
The Board held that Engineer A's prior service to ABC Manufacturing did not create a perpetual duty of absolute loyalty precluding her from serving as an expert adverse to ABC in an unrelated product liability matter
The faithful agent and trustee obligation is bounded in scope and duration; it does not extend to perpetual prohibition on adverse engagements in unrelated matters
Absolute Loyalty Prohibition to Former Clients
Engineer A Conflict of Interest Disclosure Supersession Absolute Avoidance Sequential Engagements
The case arose during a period when the NSPE Code had evolved from requiring absolute avoidance of conflicts to requiring disclosure — this evolution directly governed whether Engineer A's sequential engagements were permissible.
NSPE Code evolved conflict of interest disclosure standard; BER Case No. 98-4; NSPE Conflict of Interest Disclosure Evolution
Several years later, Engineer A was again retained by ABC Manufacturing in a different patent litigation matter.
Several years later, Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing.
Engineer A Former Client Consent Prerequisite Non-Application Unrelated Product Liability
Assessment of whether ABC Manufacturing's consent was required before Engineer A could accept retention by opposing counsel in the unrelated product liability matter.
Former Client Adversarial Proceeding Consent Prerequisite Constraint
NSPE Code Section III.4; BER Case No. 98-4
Engineer A Proactive Disclosure to ABC Manufacturing Prior Product Liability Adverse Service
Engineer A's intervening service against ABC Manufacturing in the product liability matter created a disclosure obligation to ABC Manufacturing before accepting the second patent litigation engagement.
Sequential Multi-Engagement Prior Relationship Proactive Disclosure Constraint
NSPE Code conflict of interest disclosure provisions; BER Case No. 98-4
Prior to or at the time of accepting the second ABC Manufacturing retention
Engineer A Switching Sides Prohibition Non-Application Unrelated Matters
Opposing counsel's cross-examination implied that Engineer A's sequential service on opposing sides of ABC Manufacturing litigation constituted impermissible switching of sides — the constraint boundary required assessment of whether the switching-sides prohibition applied to unrelated matters.
BER Case No. 85-4; NSPE Code Section II.4.b; BER Case No. 98-4
Engineer A Proactive Disclosure to Attorney X Prior ABC Manufacturing Relationship
Engineer A's prior service to ABC Manufacturing created a disclosure obligation to opposing counsel Attorney X before accepting the product liability engagement.
Prior to or at the time of accepting retention by Attorney X
Engineer A Second ABC Manufacturing Patent Litigation Retention
From second retention by ABC Manufacturing through trial cross-examination and beyond
Engineer A's professional relationship with ABC Manufacturing in second patent litigation matter
Conclusion of second patent litigation proceedings
ABC Manufacturing again retaining Engineer A in a different patent litigation matter
NSPE BER Conflict of Interest Appearance Non-Equivalence to Actual Conflict Institutional Recognition in Engineer A Case
The Board conducted a careful review of Engineer A's multi-party litigation engagement history and concluded that while reasonable persons might perceive an appearance of conflict, no actual conflict existed under the NSPE Code of Ethics.
Conflict of Interest Appearance Non-Equivalence to Actual Conflict Recognition Obligation
The NSPE Board of Ethical Review was obligated to recognize and apply the principle that the appearance of a conflict of interest does not constitute an actual conflict under the Code, and to decline to find a code violation based solely on the appearance of impropriety arising from Engineer A's multi-party litigation service history, where the underlying facts established no actual conflict.
While reasonable persons might differ as to whether Engineer A's actions under the facts would raise either a conflict or an appearance of a conflict, the Board concludes that a conflict does not exist
During the Board's ethical review and deliberation on the case
After careful review and analysis of the facts and circumstances in the case, we believe the facts do not rise to the level of a conflict of interest prohibited by the Code of Ethics
To do so would undermine the individual judgment, independence, and discretion that each engineer must exercise
{'challenge_basis': 'Alleged conflict of interest due to prior client relationships', 'argument': 'Attempted to impose legal advocacy model onto engineering profession'}
An attorney representing a party adverse to Engineer A's current client who challenged Engineer A's engagement as a conflict of interest, attempting to draw a parallel between the legal profession's plaintiff/defense bar structure and engineering professional obligations.
{'type': 'challenges_engagement_of', 'target': 'Engineer A Multi-Party Litigation Expert'}
{'type': 'represents', 'target': 'Former Client 1 Adverse Party'}
Attorney Client Retaining Forensic Expert
the attorney's implication under the facts that Engineer A may have acted improperly, with the suggestion that Engineer A's action may have constituted a conflict of interest
It appears that the attorney was attempting to draw a parallel between the legal profession, where there is an institutionalized 'plaintiff's bar' and 'defense bar,' and the engineering profession
Unrelated Matter Adverse Party Engagement Permissibility Invoked for Engineer A
ABC Manufacturing Repeat Litigation Client's prior patent litigation engagements
Engineer A's product liability engagement adverse to ABC Manufacturing
Switching Sides Prohibition in Adversarial Proceedings
Engineer A's acceptance of Attorney X's retention in a product liability matter adverse to ABC Manufacturing — a former client in two unrelated patent litigation matters — was held permissible because the matters were factually unrelated and no confidential information from the prior engagements was implicated
The unrelated-matter condition is the critical ethical boundary: when prior and current engagements are factually and legally distinct, the mere fact of having served both sides does not constitute a prohibited conflict
Engineer A Multi-Party Litigation Expert
Unrelated Matter Adverse Party Engagement Permissibility Principle
the matters at issue are not in any way related to any previous work Engineer A performed for either of her former clients.
Legal Profession Analogy Inapplicability Invoked Against Conflict Challenge
Engineer A's forensic expert independence
Opposing Attorney Conflict Challenger's argument
Engineer Non-Advocate Status in Adversarial Proceedings
Opposing Counsel Conflict Challenge Weaponization Prohibition
The Board specifically identified and rejected the opposing attorney's attempt to import the legal profession's plaintiff/defense bar structural division into engineering ethics analysis as a mechanism to characterize Engineer A's engagement as a conflict of interest
The legal profession's structural advocacy norms are domain-specific to law and cannot be transplanted into engineering ethics without corrupting engineering's distinct professional identity as an objective technical discipline
Legal Profession Analogy Inapplicability to Engineering Independence Principle
the attorney was attempting to draw a parallel between the legal profession, where there is an institutionalized 'plaintiff's bar' and 'defense bar,' and the engineering profession
unlike attorneys, they are not 'advocates' in rendering their professional services, they should not be expected to compromise their professional independence and autonomy
Objectivity Invoked as Foundation for Engineer A's Independent Expert Role
Engineer A's forensic expert analysis in product liability matter
Technical assessment independent of prior client relationships
Engineer A's capacity to provide objective technical analysis in the product liability matter — unconstrained by prior loyalty to ABC Manufacturing — is the foundational professional virtue that justifies the Board's conclusion that no actual conflict exists
Objectivity in technical analysis is the professional virtue that distinguishes engineers from advocates; its preservation justifies permitting adverse engagements in unrelated matters because the engineer's judgment remains untainted
while engineers may find themselves at times working within the confines of the legal adversarial profession, unlike attorneys, they are not 'advocates' in rendering their professional services
Attorney Advocacy Parallel Imputation Against Engineer A
From attorney's challenge through Board's rejection of the attorney's characterization
Attorney-Engineered Advocacy Parallel Imputation State
Attorney's challenge to Engineer A's independence by analogy to legal profession side-loyalty norms
Board's conclusion that engineers are not advocates and are not bound by attorney-specific loyalty norms
the Board is also concerned by the attorney's implication under the facts that Engineer A may have acted improperly
Attorney's implication that Engineer A's conduct violated norms analogous to the legal profession's plaintiff's bar / defense bar distinction
Engineer A Appearance of Impropriety Under Cross-Examination
From opposing counsel's cross-examination challenge through resolution of the credibility issue at trial
Ethical Appearance Conflict Without Demonstrated Actual Conflict State
The appearance of impropriety created by Engineer A's sequential service on opposing sides of ABC Manufacturing litigation, raised by opposing counsel despite absence of demonstrated actual conflict
Conclusion of trial proceedings or successful rebuttal of impropriety implication
Opposing counsel implying Engineer A acted improperly by providing services both in defense of and in litigation against ABC Manufacturing
Engineer A Attorney X Plaintiff Retention Against ABC Manufacturing
From retention by Attorney X through completion of product liability litigation services
Engineer A's professional relationship with Attorney X representing plaintiff against ABC Manufacturing in product liability litigation
Completion of product liability litigation engagement
Attorney X retaining Engineer A to represent plaintiff against ABC Manufacturing in product liability matter
Engineer A Expert Independence Under Adversarial Challenge
During cross-examination at trial in second ABC Manufacturing patent litigation
during cross-examination at trial, opposing counsel questions Engineer A's previous relationship both in defense of and in litigation with ABC Manufacturing, implying that by providing those services, Engineer A was acting improperly
Engineer A's objectivity and independence as expert witness being challenged by opposing counsel's implication of impropriety based on sequential client relationships
Conclusion of cross-examination and trial proceedings
Opposing counsel's cross-examination implying Engineer A's prior relationships compromise her independence and objectivity
Engineer A Multi-Matter Prior Relationship Proactive Disclosure to ABC Manufacturing Second Retention
Engineer A had served ABC Manufacturing in a first patent matter, then served against ABC Manufacturing in an unrelated product liability matter, and was then retained again by ABC Manufacturing in a second patent matter. The intervening adverse engagement required disclosure to ABC Manufacturing at the time of the second retention.
Multi-Matter Forensic Engagement Prior Relationship Proactive Disclosure Obligation
Engineer A was obligated to proactively disclose to ABC Manufacturing, prior to or at the time of accepting the second patent litigation engagement, that she had in the intervening period served as an expert against ABC Manufacturing in the product liability matter retained by Attorney X, so that ABC Manufacturing could make an informed retention decision with full awareness of Engineer A's complete service history.
Prior to or at the time of accepting the second retention by ABC Manufacturing
Engineer A Opposing Counsel Impropriety Implication Professional Independence Assertion in Cross-Examination
Opposing counsel challenged Engineer A's engagement as a conflict of interest, attempting to weaponize her legitimate prior professional relationships with ABC Manufacturing to undermine her credibility as an expert witness in the product liability matter.
Opposing Counsel Impropriety Implication Professional Independence Assertion Obligation
Engineer A was obligated, when subjected to opposing counsel's cross-examination implying impropriety in her multi-party litigation service history, to affirmatively assert and maintain her professional independence — including the ethical permissibility of her prior engagements with ABC Manufacturing and her current engagement with Attorney X — without capitulating to the implication of impropriety, providing clear, honest, and technically grounded testimony about the nature and scope of each prior engagement.
the Board is also concerned by the attorney's implication under the facts that Engineer A may have acted improperly, with the suggestion that Engineer A's action may have constituted a conflict of interest
During cross-examination and adversarial challenge in the product liability proceeding
Engineer A Opposing Counsel Impropriety Implication Resistance Cross-Examination
During cross-examination at trial in the second ABC Manufacturing patent matter, opposing counsel questioned Engineer A's prior relationships with both ABC Manufacturing and Attorney X, implying impropriety in her having served both sides across different matters.
Engineer A was obligated, during cross-examination, to affirmatively assert and maintain that her service to both ABC Manufacturing and Attorney X across unrelated matters was ethically permissible, and to resist opposing counsel's implication that providing services in defense of and in litigation with ABC Manufacturing constituted improper conduct, by clearly and honestly explaining the unrelated nature of each engagement.
Engineer A Sequential Adverse Engagement Appearance Challenge
From the point at which Engineer A accepted engagements adverse to former clients through the Board's determination that no actual conflict exists
Opposing parties in adversarial proceedings
Engineer A's pattern of expert engagements across matters involving former clients on opposing sides
Board of Ethical Review conclusion that no prohibited conflict of interest exists under the NSPE Code
Attorney's challenge implying Engineer A's conduct constituted a conflict of interest by analogy to legal profession norms
Engineer A Sequential Opposing-Side Expert Pattern
Crystallizes at cross-examination during second ABC Manufacturing patent litigation trial; retrospectively spans all three engagements
Opposing counsel in second patent litigation
Multi-Engagement Sequential Opposing-Side Expert Appearance Challenge State
Engineer A's cumulative pattern of serving ABC Manufacturing, then plaintiff against ABC Manufacturing, then ABC Manufacturing again across three unrelated matters
Conclusion of second patent litigation proceedings and resolution of credibility challenge
Opposing counsel's cross-examination questioning Engineer A's prior relationships on both sides of litigation involving ABC Manufacturing
NSPE Conflict Disclosure Norm Evolution Active
From the point at which NSPE amended its code from avoidance to disclosure mandate — ongoing at time of this case
At one point in the past, engineering codes of ethics...specifically implored engineers to avoid all conflicts of interest
Engineering Profession Conflict Disclosure Norm Evolution State
The operative NSPE Code standard governing engineer conflict of interest obligations
Not yet terminated — disclosure norm remains operative
by promptly informing them of any business association, interest, or other circumstance that could influence or appear to influence their judgment or the quality of their services
Historical recognition that conflicts of interest are an immutable fact of engineering practice, leading to code revision
Loyalty Invoked as Bounded Faithful Agent Obligation for Engineer A
Engineer A's prior service to ABC Manufacturing
NSPE Code Section II.4 faithful agent obligation
The Board interpreted Engineer A's faithful agent and trustee obligation to ABC Manufacturing as bounded in scope (to the prior patent litigation matters) and duration (not perpetual), affirming that loyalty does not extend to prohibiting all future adverse engagements in unrelated matters
Loyalty in engineering is a bounded relational obligation tied to specific engagements and their subject matter; it does not create perpetual constraints on professional independence beyond the scope of the prior engagement
Conflict of Interest Disclosure Evolution Invoked in BER Historical Analysis
Engineer A's multi-party litigation expert engagements
NSPE Code of Ethics conflict of interest provisions
The Board traced the profession's evolution from absolute conflict avoidance to a disclosure-and-management standard, recognizing that conflicts are virtually immutable in engineering practice and that the ethical response is disclosure rather than mandatory recusal
The evolution from avoidance to disclosure as the governing standard means Engineer A's adverse engagement against a former client in an unrelated matter must be evaluated under disclosure norms, not absolute avoidance norms
Conflict of Interest Disclosure Evolution Principle
over time, the engineering profession came to the general conclusion that by the very nature of the role of the engineer in society, conflicts of interests were virtually an immutable fact of professional engineering practice and that it was generally impossible for the engineer to, in all cases, remove him or herself from such situations.
Engineer A Absolute Loyalty Boundary Determination
From the moment Engineer A's conduct was challenged as a perpetual loyalty violation through the Board's ruling that no absolute loyalty duty exists
Being a 'faithful agent and trustee' to a client does not obligate an engineer to a duty of absolute devotion in perpetuity
Absolute Loyalty Prohibition Boundary Determination State
Engineer A's post-engagement obligations to former clients in unrelated matters
Board determination that absolute perpetual loyalty is not required and would undermine engineer autonomy
Such an approach would be impractical and compromise the autonomy and professional independence of engineers
Attorney's challenge and Board's review of whether 'faithful agent and trustee' standard bars adverse engagements in unrelated matters
Engineer A Non-Advocate Objectivity Maintained Across ABC Manufacturing and Attorney X Engagements
Engineer A served as a retained expert across three separate, unrelated litigation matters involving the same corporate party (ABC Manufacturing) on different sides, requiring consistent non-advocate objectivity in each engagement.
Expert Witness Engineering Non-Advocate Objectivity Obligation
Engineer A was obligated to maintain full objectivity and non-advocate status in each of her three separate engagements — twice for ABC Manufacturing in patent litigation and once for Attorney X in product liability litigation — rendering independent technical opinions based on the facts of each matter rather than adopting a partisan position aligned with any retaining party.
Engineer A was retained by ABC Manufacturing for the purpose of reviewing documents to form an opinion in a patent litigation matter in an area of Engineer A's expertise.
Throughout each of the three separate engagements
Engineer A was again retained by ABC Manufacturing in a different patent litigation matter
Engineer A Unrelated Matter Adverse Forensic Engagement Permissibility Assertion in ABC Manufacturing Product Liability Matter
Engineer A served ABC Manufacturing in two patent litigation matters and subsequently accepted retention by Attorney X in a product liability matter adverse to ABC Manufacturing. Opposing counsel challenged this as a conflict of interest. The Board found the engagement permissible because the matters were entirely unrelated.
Unrelated Matter Adverse Forensic Engagement Permissibility Assertion Obligation
Engineer A was obligated to recognize, assert, and document that her acceptance of retention by Attorney X in the product liability matter adverse to ABC Manufacturing was ethically permissible under the NSPE Code because the product liability matter was entirely unrelated to either of her two prior patent litigation engagements for ABC Manufacturing, and to resist opposing counsel's characterization of the sequential service as a conflict of interest or improper switching of sides.
At the time of accepting the Attorney X engagement and throughout the adversarial proceeding
This is particularly true in the present case, where the matters at issue are not in any way related to any previous work Engineer A performed for either of her former clients
the Board of Ethical Review is not prepared to say that an engineer who fails to follow this approach is somehow acting in violation of the NSPE Code of Ethics
Engineer Non-Advocate Status Invoked Against Attorney Bar Analogy
Engineer A's forensic expert role in product liability litigation
Opposing Attorney Conflict Challenger's bad-faith conflict challenge
The Board rejected the opposing attorney's attempt to analogize engineering expert practice to the plaintiff's bar / defense bar structure of the legal profession, affirming that engineers are not advocates and retain professional independence from the adversarial posture of retaining counsel
Engineering's professional identity as objective technical expert — not partisan advocate — means that the structural loyalty norms of the legal profession cannot be imported to constrain engineer independence in accepting adverse engagements
while engineers may find themselves at times working within the confines of the legal adversarial profession, unlike attorneys, they are not 'advocates' in rendering their professional services, they should not be expected to compromise their professional independence and autonomy.
Engineer Professional Autonomy Preservation Invoked Against Blanket Prohibition
BER's interpretation of NSPE Code conflict of interest provisions
Engineer A's discretionary acceptance of Attorney X's retention
The Board declined to hold that engineers who accept engagements adverse to former clients in unrelated matters violate the Code, because such a holding would systematically undermine the individual judgment and discretion that each engineer must exercise
Ethics code interpretation must preserve rather than erode engineer autonomy; blanket prohibitions on adverse engagements against former clients in unrelated matters would improperly constrain the professional independence foundational to engineering practice
some engineers might choose to decline an engagement that could place the engineer in a position adverse to the interests of a former client, even though the engagement is not in any way related to the engineer's earlier services to the client. However, the Board of Ethical Review is not prepared to say that an engineer who fails to follow this approach is somehow acting in violation of the NSPE Code of Ethics.
Absolute Loyalty Non-Extension to Former Client ABC Manufacturing
Engineer A's prior service to ABC Manufacturing in patent litigation did not create a perpetual obligation of loyalty that would bar her from subsequently serving as an expert against ABC Manufacturing in the unrelated product liability matter
The duty of loyalty to a client attaches to the specific engagement and its subject matter; once that engagement concludes, the engineer retains professional autonomy to accept subsequent engagements, including those adverse to the former client, provided the new matter is unrelated and no confidential information is implicated
Engineer A was retained by ABC Manufacturing for the purpose of reviewing documents to form an opinion in a patent litigation matter in an area of Engineer A's expertise. Engineer A performed the requested services and was paid for her work by ABC Manufacturing. Several years later, Engineer A was retained by Attorney X who represented a plaintiff in product liability litigation against ABC Manufacturing in a matter not involving any aspect of the earlier patent litigation.
Engineer A Conflict of Interest Disclosure Evolution Compliance in Multi-Party Litigation History
The Board traced the historical evolution of conflict-of-interest standards in engineering ethics codes from absolute avoidance to disclosure and management, applying the current evolved standard to Engineer A's multi-party engagement history.
Conflict of Interest Disclosure Evolution Compliance Obligation
Engineer A was obligated to comply with the evolved conflict-of-interest disclosure standard — disclosing known or potential conflicts to clients and employers — rather than applying the outdated absolute-avoidance standard, recognizing that the profession's evolution from mandatory avoidance to mandatory disclosure and management governed her multi-party litigation engagement history.
At one point in the past, engineering codes of ethics, including the NSPE Code of Ethics for Engineers, specifically implored engineers to avoid all conflicts of interest
Throughout Engineer A's acceptance and performance of the Attorney X engagement
codes were changed, and engineers were implored to disclose all known or potential conflicts of interest to their employers or clients, by promptly informing them of any business association, interest, or other circumstance that could influence or appear to influence their judgment or the quality of their services
Engineer A Multi-Matter Prior Relationship Proactive Disclosure to Attorney X
Engineer A had previously served ABC Manufacturing in patent litigation before being retained by Attorney X to serve against ABC Manufacturing in an unrelated product liability matter. The prior relationship was not disclosed proactively and emerged only during cross-examination.
Engineer A was obligated to proactively disclose to Attorney X, prior to or at the time of accepting the product liability engagement, that she had previously rendered professional services to ABC Manufacturing in a patent litigation matter, so that Attorney X could make an informed retention decision with full awareness of Engineer A's prior service history with the adverse party.
Engineer Non-Advocate Objectivity Maintained Across Multi-Party Engagements
Adversarial Engagement Objectivity Obligation
Engineer A's role across all three engagements was as an objective technical expert providing independent analysis, not as an advocate for any party; the fact that she served both ABC Manufacturing and its adversary in unrelated matters is consistent with — not contrary to — her non-advocate status as a forensic engineer
An engineer who serves multiple parties across unrelated matters demonstrates independence rather than partiality; the non-advocate principle requires that each engagement be conducted with full objectivity, which is not compromised by having served different parties in different, unrelated matters
Former Client Adversarial Participation Assessment in Unrelated Matter
The Former Client Adversarial Participation Prohibition does not apply to Engineer A's engagement by Attorney X because the product liability matter did not involve any aspect of the earlier patent litigation — no specialized knowledge gained in the prior engagement was deployed against ABC Manufacturing in the adverse matter
The prohibition on former client adverse participation is triggered only when the new matter involves the same or related subject matter, or when specialized knowledge from the prior engagement would be used against the former client; where matters are genuinely unrelated, the prohibition does not apply
Former Client Adversarial Participation Prohibition
Switching Sides Prohibition Non-Application to Unrelated Matters
The Switching Sides Prohibition does not apply to Engineer A's engagement by Attorney X because the product liability matter was entirely unrelated to the patent litigation matters in which Engineer A served ABC Manufacturing; the prohibition is triggered only when the engineer switches sides in the same or related proceeding, not when serving different parties in genuinely independent matters
Opposing counsel's implication of impropriety conflates the switching-sides prohibition (which applies to same or related matters) with the permissible practice of serving different parties across unrelated matters; the principle does not extend to create a lifetime bar on adverse participation
Unrelated Matter Adverse Engagement Permissibility Invoked By Engineer A
Product liability engagement by Attorney X against ABC Manufacturing
Engineer A's acceptance of the product liability engagement against ABC Manufacturing was ethically permissible because the matter was entirely unrelated to the prior patent litigation in which she had served ABC Manufacturing, and no confidential information or specialized knowledge from the prior engagement was implicated in the adverse matter
The unrelated nature of the patent litigation and product liability matters means that Engineer A's acceptance of the adverse engagement did not violate loyalty or confidentiality obligations to ABC Manufacturing; professional autonomy permits engineers to accept engagements adverse to former clients when matters are genuinely independent
Adversarial Context Objectivity Maintained By Engineer A
Engineer A was obligated to maintain full objectivity in each of her three engagements regardless of which party retained her, and her service to both ABC Manufacturing and its adversary across unrelated matters does not impair this objectivity provided each engagement was conducted independently on its own technical merits
The objectivity obligation applies within each engagement; serving different parties in unrelated matters does not create a structural objectivity problem, but Engineer A must ensure that each engagement's analysis is conducted without reference to or influence from prior engagements
Engineer A Conflict of Interest Appearance Non-Equivalence to Actual Conflict Recognition in Multi-Party Litigation
The Board acknowledged that reasonable persons might perceive an appearance of conflict in Engineer A's service to both ABC Manufacturing and its adversary across unrelated matters, but concluded that no actual conflict existed under the Code.
Engineer A was obligated to recognize and apply the principle that the appearance of a conflict of interest arising from her multi-party litigation service history — which reasonable persons might perceive — did not constitute an actual conflict under the NSPE Code, and that she was not required to decline the Attorney X engagement solely because it created an appearance of conflict when the underlying facts established no actual conflict.
At the time of accepting the Attorney X engagement and in responding to the conflict challenge
Engineer A Individual Engineering Judgment Autonomy Preservation in Adverse Former Client Engagement Decision
The Board explicitly recognized that some engineers might choose to decline engagements adverse to former clients even in unrelated matters, while others might accept them, and that neither choice constitutes a code violation — preserving the space for individualized professional judgment.
Individual Engineering Judgment Autonomy Non-Subordination to Categorical Prohibition Obligation
Engineer A was obligated to exercise individualized professional judgment in deciding whether to accept the Attorney X engagement — recognizing that while some engineers might choose to decline such engagements out of caution, her decision to accept was a legitimate exercise of professional discretion that did not constitute a code violation, and that no categorical prohibition barred her from making this individualized judgment.
For a variety of reasons, some engineers might choose to decline an engagement that could place the engineer in a position adverse to the interests of a former client, even though the engagement is not in any way related to the engineer's earlier services to the client
At the time of deciding whether to accept the Attorney X engagement
Opposing Counsel Weaponization of Legitimate Prior Relationships
Opposing counsel's cross-examination implying that Engineer A acted improperly by serving both ABC Manufacturing and its adversary across unrelated matters constitutes a bad-faith challenge that mischaracterizes permissible professional conduct as an ethics violation
Because the matters were unrelated and no confidentiality or loyalty violations occurred, opposing counsel's implication of impropriety is a litigation tactic rather than a legitimate ethics challenge; Engineer A's conduct was consistent with applicable professional ethics standards
Unrelated Matters Factual Separation Across Three Engagements
Spans the entire timeline from first engagement through cross-examination challenge
in a matter not involving any aspect of the earlier patent litigation
Sequential Adverse Representation in Unrelated Matters State
The factual condition that all three of Engineer A's engagements — two for ABC Manufacturing and one for plaintiff against ABC Manufacturing — involve genuinely separate, unrelated subject matter (patent litigation vs. product liability), such that no confidential information from any prior engagement is implicated in subsequent ones
in a different patent litigation matter not related to either of the proceeding events
Pattern of sequential engagements across unrelated matters becoming subject to adversarial scrutiny
Conflict of Interest Appearance Without Actual Conflict Non-Violation Invoked for Engineer A
Engineer A's prior service to ABC Manufacturing and subsequent adverse engagement
The Board acknowledged that reasonable persons might perceive an appearance of conflict in Engineer A's multi-party litigation history but concluded that no actual prohibited conflict existed, declining to treat the appearance as an ethics violation
The appearance of a conflict — even one that reasonable persons might perceive — does not automatically constitute an actual ethics violation; the Board must assess whether actual influence on professional judgment exists
Conflict of Interest Appearance Without Actual Conflict Non-Violation Principle
engineers were implored to disclose all known or potential conflicts of interest to their employers or clients, by promptly informing them of any business association, interest, or other circumstance that could influence or appear to influence their judgment or the quality of their services
Engineer A Engineer Autonomy Non-Subordination to Legal Profession Bar Analogy in Product Liability Engagement
Opposing counsel cross-examined Engineer A implying that her service to both ABC Manufacturing and its adversary across unrelated matters constituted improper conduct analogous to an attorney switching sides, attempting to import the legal profession's structural division into engineering practice.
Engineer Autonomy Non-Subordination to Institutionalized Advocacy Bar Analogy Obligation
Engineer A was obligated to resist and reject opposing counsel's attempt to analogize her forensic expert role to the institutionalized plaintiff's bar or defense bar structure of the legal profession, affirmatively asserting that engineers are not advocates and that no engineering equivalent of the plaintiff/defense bar dichotomy exists or should constrain her professional independence.
During cross-examination in the product liability matter and throughout the adversarial proceeding
while engineers may find themselves at times working within the confines of the legal adversarial profession, unlike attorneys, they are not 'advocates' in rendering their professional services, they should not be expected to compromise their professional independence and autonomy
Engineer A Former Client Adversarial Proceeding Consent Prerequisite Non-Application Unrelated Matter
Engineer A's prior service to ABC Manufacturing in patent litigation raised the question of whether consent was required before serving against ABC Manufacturing; the correct analysis required recognizing the unrelated-matter exception to the consent prerequisite.
Former Client Adversarial Proceeding Consent Prerequisite Obligation
Engineer A was obligated to assess whether the Former Client Adversarial Proceeding Consent Prerequisite applied to her acceptance of the product liability engagement against ABC Manufacturing, and to correctly determine that it did NOT apply because the product liability matter was entirely unrelated to the prior patent litigation engagement, involved no specialized knowledge gained specifically from ABC Manufacturing that was being deployed against ABC Manufacturing's interests in the same or related matter.
Prior to accepting retention by Attorney X
Engineer A Multi-Matter Forensic Engagement Prior Relationship Proactive Disclosure to Attorney X
Engineer A had served ABC Manufacturing twice in patent litigation before accepting retention by Attorney X in a product liability matter adverse to ABC Manufacturing. Proactive disclosure of this prior relationship to the new retaining party was required to prevent the appearance of impropriety from arising unexpectedly during cross-examination.
Engineer A was obligated to proactively disclose her prior service history with ABC Manufacturing — including both patent litigation engagements — to Attorney X before or at the time of accepting retention in the product liability matter, so that Attorney X could make an informed retention decision with full awareness of Engineer A's prior service to the adverse party.
Before or at the time of accepting retention by Attorney X
Engineer A Switching Sides Prohibition Non-Application Recognition Unrelated Product Liability Matter
Opposing counsel implied that Engineer A's service against ABC Manufacturing after previously serving ABC Manufacturing constituted improper switching of sides; Engineer A was obligated to recognize and assert that the prohibition does not apply to unrelated matters.
Switching Sides Forensic Expert Prohibition Obligation
Engineer A was obligated to correctly assess that the Switching Sides Forensic Expert Prohibition did NOT apply to her acceptance of the product liability engagement against ABC Manufacturing, because that matter was entirely unrelated to the prior patent litigation, involved no shared confidential information or documents from the prior engagement, and therefore did not constitute the prohibited 'switching sides' scenario — and to assert this non-application clearly when challenged during cross-examination.
At the time of accepting the product liability engagement and during cross-examination at trial
Engineer A Expert Witness Engineering Non-Advocate Objectivity Across Multi-Party Engagements
Opposing counsel challenged Engineer A's engagement by implying she had acted improperly by serving parties on both sides of litigation across unrelated matters, attempting to draw a parallel to the legal profession's institutionalized plaintiff/defense bar structure. The Board rejected this characterization.
Engineer A was obligated to maintain objective, technically grounded professional opinions in each of her three engagements — two for ABC Manufacturing and one for Attorney X — functioning as an assistant to the trier of fact rather than as an advocate for any party, and to resist the opposing attorney's attempt to characterize her as operating within a plaintiff's bar or defense bar structure analogous to the legal profession.
Throughout all three litigation engagements and specifically during cross-examination in the product liability matter
Engineer A Non-Absolute Former Client Loyalty Boundary Recognition ABC Manufacturing Product Liability
Engineer A's acceptance of retention by Attorney X against ABC Manufacturing was challenged as improper; the obligation requires Engineer A to recognize and apply the correct boundary of former-client loyalty under the NSPE Code.
Non-Absolute Former Client Loyalty Boundary Obligation
Engineer A was obligated to recognize that her prior service to ABC Manufacturing in patent litigation did not create a perpetual duty of loyalty that would bar her from subsequently serving as an expert against ABC Manufacturing in an entirely unrelated product liability matter, provided the new engagement did not involve confidential information from the prior engagement or the same project or proceeding.
At the time of accepting retention by Attorney X and when asserting the permissibility of that engagement during cross-examination
Engineer A Unrelated Matter Adverse Engagement Permissibility Assertion ABC Manufacturing Product Liability
Engineer A had previously served ABC Manufacturing in patent litigation, then accepted retention by Attorney X representing a plaintiff against ABC Manufacturing in an unrelated product liability matter, and was later retained again by ABC Manufacturing in a second unrelated patent matter.
Engineer A was obligated to recognize and assert that her acceptance of retention by Attorney X in the product liability matter against ABC Manufacturing was ethically permissible because that matter was entirely unrelated to the prior patent litigation in which she had served ABC Manufacturing, involved no shared confidential information, and therefore did not trigger the switching-sides prohibition or the former-client consent-prerequisite rule.
At the time of accepting retention by Attorney X and throughout the product liability engagement, including during cross-examination at trial
Multi-Matter Multi-Party Forensic Engagement Disclosure Obligation Invoked for Engineer A History
Engineer A's three-matter litigation history
Engineer A's history of serving ABC Manufacturing twice in patent litigation and then serving Attorney X adversely against ABC Manufacturing in product liability litigation required proactive disclosure of the full engagement history to all retaining parties so they could assess any legitimate conflict concerns
Even where no actual conflict exists, the multi-party engagement history triggers a disclosure obligation so that retaining parties can make informed decisions about the engagement
Multi-Matter Multi-Party Forensic Engagement Disclosure Obligation
engineers were implored to disclose all known or potential conflicts of interest to their employers or clients, by promptly informing them of any business association, interest, or other circumstance that could influence or appear to influence their judgment or the quality of their services.
the Board of Ethical Review has considered a variety of difficult cases involving conflicts of interest and the scope of an engineer's ethical obligation to past and present clients
{'license': 'Professional Engineer (implied by expert retention)', 'specialty': 'Area of expertise relevant to patent and product liability matters', 'engagement_count': 3, 'parties_served': ['ABC Manufacturing (defense/patent)', 'Attorney X plaintiff (product liability against ABC Manufacturing)', 'ABC Manufacturing (defense/patent, second matter)']}
Engineer A was retained across three separate, unrelated litigation matters — twice by ABC Manufacturing (patent litigation) and once by Attorney X representing a plaintiff against ABC Manufacturing (product liability). During cross-examination, opposing counsel questioned whether these multiple engagements on both sides of litigation with the same company constituted improper conduct, raising issues of professional independence and objectivity.
{'type': 'adversarial_scrutiny', 'target': 'Opposing Counsel at Trial'}
{'type': 'client', 'target': 'ABC Manufacturing (first patent matter)'}
{'type': 'client', 'target': 'ABC Manufacturing (second patent matter)'}
{'type': 'client', 'target': 'Attorney X / Plaintiff (product liability matter)'}
Engineer A Non-Absolute Former Client Loyalty Recognition in ABC Manufacturing Adverse Engagement
Engineer A had previously served ABC Manufacturing in two patent litigation matters and subsequently accepted retention by Attorney X in a product liability matter adverse to ABC Manufacturing. The Board found no actual conflict of interest because the matters were entirely unrelated.
Engineer A was obligated to recognize that her prior faithful agent obligations to ABC Manufacturing in two unrelated patent litigation matters did not create a duty of absolute loyalty in perpetuity that would bar her from accepting retention by Attorney X in an adverse product liability matter, provided the new matter was entirely unrelated to the prior engagements and no confidential information from those engagements was implicated.
At the time of accepting retention by Attorney X and throughout the product liability engagement