{'entity_type': 'Manufacturing corporation', 'role_in_proceedings': 'Retaining party (patent litigation) and defendant (product liability litigation)'}
Retained Engineer A for patent litigation document review on two separate occasions; was also the defendant in product liability litigation in which Engineer A was retained by opposing counsel. Illustrates the multi-party sequential engagement scenario analyzed by the Board.
{'type': 'adverse_party_to', 'target': 'Attorney X Plaintiff Counsel'}
{'type': 'retained', 'target': 'Engineer A BER 98-4 Multi-Party Litigation Expert'}
Attorney Client Retaining Forensic Expert
Engineer A, who 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
Adversarial Proceeding Conflict of Interest Standard (NSPE Code — Confidentiality and Adverse Interest Provisions)
National Society of Professional Engineers
NSPE Code of Ethics — Provisions on Confidentiality and Adverse Interest Representation
Adversarial Proceeding Conflict of Interest Standard
Engineers shall not disclose, without consent, confidential information concerning the business affairs or technical processes of any present or former client or employer, or public body on which they serve.
Engineer A cannot disclose, participate or represent the state's interest in connection with this proceeding unless Engineer A first obtains the permission/consent of Engineer A's former private firm employer and also the client.
Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained particular specialized knowledge on behalf of a former client or employer.
NSPE Board of Ethical Review in determining Engineer A must be recused from the state's water rights case
Applied to Engineer A's situation as a state employee asked to participate in water rights proceedings involving a former private employer and client; establishes that Engineer A cannot disclose confidential information or represent adverse interests without consent of all interested parties
Agent-Trustee Distinction Framework (NSPE Code Section II.4)
NSPE Code of Ethics Section II.4 — Faithful Agent and Trustee Obligation
Being a 'faithful agent and trustee' to a client does not obligate an engineer to a duty of absolute devotion in perpetuity. (See NSPE Code Section II.4.)
Such an approach would be impractical and compromise the autonomy and professional independence of engineers.
NSPE Board of Ethical Review in analyzing the limits of Engineer A's duty of loyalty
Invoked to clarify the scope of an engineer's loyalty obligation to former clients; the Board uses this framework to establish that 'faithful agent and trustee' status does not create perpetual absolute loyalty, thereby permitting Engineer A to work for parties with interests adverse to former clients in unrelated matters
Attorney X Plaintiff Counsel Retaining Engineer
{'entity_type': 'Attorney / legal counsel', 'role_in_proceedings': "Plaintiff's counsel retaining engineering expert"}
Retained Engineer A to provide expert services on behalf of a plaintiff in product liability litigation against ABC Manufacturing — a former client of Engineer A. Central to the Board's analysis of whether sequential adverse-party engagements constitute a prohibited conflict of interest.
{'type': 'adverse_to', 'target': 'ABC Manufacturing Litigation Client'}
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 No. 98-4
In BER Case No. 98-4, the Board considered a situation involving Engineer A, who was retained by ABC Manufacturing for the purpose of reviewing documents to form an opinion in a patent litigation matter...
In deciding that it was ethical for Engineer A to provide services to the parties in the manner described under the facts, the Board noted that it does not believe the facts rose to the level of a conflict of interest prohibited by the NSPE Code.
The Board noted that 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.
This is particularly true in BER Case No. 98-4, where the matters at issue are not in any way related to any previous work Engineer A performed for either of her former clients.
NSPE Board of Ethical Review as analogical foundation for the current case analysis
Cited as the primary precedent governing engineer participation in adversarial proceedings involving former clients; establishes that engineers do not owe a duty of absolute loyalty to former clients and may take positions adverse to former clients in unrelated matters
CausalLink_Deciding to Support Prior Stam
CausalLink_Electing Isolation from State'
CausalLink_Refraining from Disclosing Con
CausalLink_Stamping Final Analysis Docume
Beyond the Board's recommendation that Engineer A be assigned other duties and isolated from the State's water rights case, the adequacy of informal isolation as an ethical remedy is itself open to question. The Board's conclusion treats organizational isolation as sufficient to discharge the conflict-of-interest obligation, but it does not address whether that isolation must be formalized, documented, and enforceable to genuinely protect the former client's interests. An informal arrangement — dependent on supervisory goodwill and the absence of inadvertent contact — leaves the former client's confidential analytical methods and litigation strategy vulnerable to indirect disclosure through casual workplace interaction, team briefings, or institutional memory. A formal, documented recusal protocol with defined boundaries, acknowledged in writing by Engineer A and his supervisors, would more fully satisfy the spirit of the faithful agent and confidentiality obligations that survive the employment transition. The Board's silence on this structural question leaves a meaningful gap in the ethical guidance provided.
The Board's conclusion focuses on Engineer A's obligations going forward but does not address the threshold question of when the conflict of interest obligation to disclose first arose. Under Code Section II.4.a., the disclosure duty attaches to known or potential conflicts — not merely actual, fully materialized ones. Because the State is a routine objector in most water-rights proceedings of this type, Engineer A had constructive, if not actual, knowledge that the State would likely become an adverse party in the very proceeding for which he was stamping work product at the time he was contemplating or negotiating his transition to State employment. This means the disclosure obligation plausibly arose before Engineer A stamped the final document in Step 2, not after his resignation. Had Engineer A disclosed the prospective employment relationship to his private firm and client at that earlier point, the firm could have reassigned the stamping responsibility to an engineer without a prospective adverse relationship, eliminating the ongoing professional accountability conflict entirely. The Board's failure to address this temporal dimension understates the seriousness of the pre-transition conduct and leaves engineers without guidance on the precise moment at which a prospective conflict triggers affirmative disclosure duties.
The Board's recommendation that Engineer A be isolated from the State's case does not resolve the tension between his ongoing professional accountability for the stamped water-rights analysis and the prohibition on adversarial participation against his former client. Engineer A's stamp on the final document is not merely a historical artifact — it represents a continuing professional certification of the technical conclusions reached in Step 2. If errors or material weaknesses in that analysis surface during Steps 3 through 5 of the court proceeding, Engineer A may face a positive duty to clarify or correct the record to protect public safety, the integrity of the court process, and his own professional standing. Yet any such clarification, if it incidentally aids the State's objection or undermines the former client's application, would constitute precisely the kind of adversarial participation that the conflict-of-interest recusal is designed to prevent. The Board's isolation recommendation does not provide a mechanism for resolving this collision: Engineer A cannot simultaneously honor his stamped-document accountability obligation and remain fully insulated from a proceeding in which that document is the central technical exhibit. A complete ethical framework would require guidance on whether, and under what procedural conditions, Engineer A may respond to direct challenges to his stamped work without that response being treated as adversarial participation on behalf of the State.
Engineer A should be assigned other duties by the state remain isolated from the State's water rights case involving Engineer A's former employer and its client—and the state should recognize and respect Engineer A's ethical obligations in this matter.
In response to Q101, Engineer A's conflict of interest disclosure obligation arose at the earliest practicable moment — most plausibly when he first contemplated transitioning to the State and recognized that the State was an active objector in the specific water-rights proceeding in which he had stamped work product. The obligation did not crystallize only upon formally accepting the State position or upon later learning of the State's objector role; rather, Code Section II.4.a requires disclosure of all 'known or potential' conflicts, and the potential for adverse positioning was foreseeable the moment Engineer A identified the State as his prospective employer while the proceeding remained active. Waiting until formal employment acceptance would have deprived both the private firm and the client of the opportunity to reassign the stamped analysis or seek protective measures before Engineer A's transition became a fait accompli. The temporal logic of the disclosure obligation therefore runs backward from the employment event, not forward from it.
In response to Q102, the co-stamping of the final water-rights analysis by a second employee at the private firm creates an independent professional accountability obligation for that other engineer, but it does not diminish or redistribute Engineer A's own obligations. Each licensed engineer who stamps a document assumes full, non-delegable professional responsibility for its technical content under the applicable standard of professional accountability for stamped work. The co-stamp does not create joint-and-several ethical liability in a way that allows either engineer to disclaim responsibility by pointing to the other's signature. Conversely, the existence of a second accountable engineer does not amplify Engineer A's conflict of interest — it merely means that the proceeding has access to another professional who can stand behind the analysis without the cross-side employment complication. This distinction is practically significant: if Engineer A is properly isolated, the second stamping engineer remains available to defend or clarify the document without triggering any conflict, which partially mitigates the harm that isolation might otherwise cause to the former client's ability to support its application.
In response to Q103, the informal isolation implemented by Engineer A's current State employer is ethically insufficient as a standalone protective measure given the gravity of the cross-side employment transition. The Board's recommendation that Engineer A be assigned other duties and that the State recognize and respect his ethical obligations implicitly acknowledges that informal arrangements are vulnerable to erosion over time, particularly in a proceeding that may extend through mediation or trial. A formal, documented recusal protocol — specifying the categories of information Engineer A may not access, the personnel he may not advise, and the supervisory chain of accountability for enforcing those boundaries — would provide the enforceable structure necessary to protect the former client's interests and to demonstrate to the court and the public that the State is not exploiting Engineer A's insider knowledge. Without such formalization, the appearance of impropriety identified in the dual role appearance of impropriety principle cannot be adequately cured, because informal isolation depends entirely on the good faith of individual supervisors and colleagues rather than on institutional safeguards that can be audited or challenged.
In response to Q104, Engineer A should have sought explicit consent from the former private client before accepting employment with the State, given that the State was already an active objector in the specific proceeding in which Engineer A had stamped work product. Code Section III.4.b. prohibits participation in or representation of an adverse interest without the consent of all interested parties, and the former client qualifies as an interested party whose adversarial exposure was direct and concrete — not merely speculative. The consent requirement is not satisfied by Engineer A's unilateral decision to isolate himself, because isolation is a remedial measure that follows the conflict rather than a prospective authorization that precedes it. Seeking consent before the transition would have served three distinct functions: it would have given the client the opportunity to object or negotiate protective conditions; it would have placed the client on notice to seek alternative technical support for the remaining proceeding steps; and it would have demonstrated the good faith and transparency that the faithful agent duty demands of an engineer who is about to place himself in a structurally adverse position relative to a client whose interests he was recently engaged to advance.
In response to Q201, a genuine tension exists between Engineer A's ongoing professional accountability for the stamped water-rights analysis and the former client adversarial participation prohibition. The accountability obligation is not merely reputational — it carries a professional duty to be available to defend, clarify, or correct the technical work if the court or the parties require it. However, any active participation by Engineer A in the proceeding, even in a nominally neutral or defensive capacity, risks crossing into adversarial territory because the proceeding is structured as a contest between the applicant (the former client) and the objectors (including the State, his current employer). The resolution of this tension is not to extinguish either obligation but to recognize their respective domains: Engineer A's accountability for the stamped work survives his employment transition and can be discharged if called upon by the court or the former client directly, but it does not authorize him to volunteer participation or to act through his current employer's litigation posture. The isolation protocol must be designed to preserve this narrow accountability channel while blocking all adversarial channels.
In response to Q202, the faithful agent duty Engineer A owes to his current State employer does not extend to deploying confidential technical knowledge or litigation strategy insights derived from his prior engagement with the private firm and its client. The faithful agent duty under Code Section II.4 is bounded by the confidentiality obligation under Code Section III.4, and these provisions must be read in harmony rather than in conflict. The State, as a sophisticated public agency that knowingly hired an engineer with a recent cross-side employment history, is charged with understanding that Engineer A's full technical expertise in this specific matter is encumbered by prior confidentiality obligations. The faithful agent duty therefore requires Engineer A to serve the State competently in all matters unrelated to the former client's proceeding, but it does not require — and indeed prohibits — him from contributing his insider knowledge of the opposing analysis to the State's litigation posture. The State's own ethical obligation, recognized in the Board's recommendation, is to respect these boundaries rather than to exploit the access that Engineer A's transition might otherwise provide.
In response to Q203, the objectivity obligation and the loyalty principle do not operate as direct antagonists in Engineer A's situation because Engineer A is not serving as a neutral technical expert in this proceeding — he is an employee of one of the adversarial parties. The objectivity obligation most acutely governs engineers who are retained as expert witnesses or independent technical reviewers, as illustrated by the BER Case No. 98-4 analysis of the engineer's non-advocate status. Engineer A's role is categorically different: he is a fact witness to his own prior work and a current employee of an objector. In that posture, the loyalty principle and the participation prohibition together counsel complete withdrawal from the proceeding rather than impartial technical engagement. If Engineer A were somehow called upon to provide neutral technical review of the stamped analysis, the objectivity obligation would require him to report findings honestly even if they revealed weaknesses in the former client's position — but this scenario is precisely what the isolation protocol is designed to prevent, because it would place Engineer A in an untenable position where honest objectivity would functionally serve his current employer's adversarial interests.
In response to Q204, the conflict of interest recusal principle and the dual role appearance of impropriety principle are not fully reconcilable through isolation alone. Isolation addresses the functional conflict — it prevents Engineer A from actively contributing to the State's case — but it does not eliminate the structural appearance problem created by Engineer A's presence within the State agency as a water-rights expert who stamped the opposing analysis. The appearance of impropriety arises not from what Engineer A does after isolation but from what he knows and who employs him: a court, the former client, and the public may reasonably question whether the State's technical positions in the proceeding have been influenced, even subtly and unintentionally, by Engineer A's proximity to the matter. The Board's recommendation that the State recognize and respect Engineer A's ethical obligations implicitly acknowledges this residual appearance problem but stops short of requiring Engineer A's complete departure from the agency. A more complete resolution would require the State to implement formal, auditable isolation with documented information barriers, and potentially to disclose Engineer A's recusal status to the court as a transparency measure that demonstrates institutional good faith.
In response to Q301, from a deontological perspective, Engineer A's duty as a faithful agent to his former private client does not create an absolute prohibition against all indirect presence in the State agency — but it does create a near-absolute prohibition against any participation, direct or indirect, in the State's adversarial case. The distinction matters: Engineer A may lawfully and ethically work for the State on unrelated water-rights matters, because the faithful agent duty is client-specific and proceeding-specific rather than employer-category-specific. However, within the domain of this specific proceeding, the deontological structure of Code Sections II.4 and III.4.b. operates as a categorical constraint: Engineer A must not participate, must not disclose confidential information derived from the prior engagement, and must not allow his insider knowledge to be accessed by the State's litigation team, regardless of whether his isolation is formally implemented by his employer. The deontological force of these obligations is self-executing — they bind Engineer A independently of whether his employer enforces them — which is why Engineer A's own voluntary election of isolation is ethically significant even if the State had not formally implemented it.
In response to Q302, from a consequentialist perspective, the State's formal isolation of Engineer A is a necessary but not sufficient condition for preventing systemic harm to the integrity of the water-rights adjudication process. The harm calculus extends beyond Engineer A's individual conduct: if the engineering profession routinely permits private-to-public employment transitions in active adversarial proceedings without robust, enforceable recusal protocols, the long-term consequence is erosion of public confidence in the neutrality of technical expertise in court-supervised water-rights adjudications. Water-rights proceedings are particularly sensitive because they involve multi-party public resource allocations with generational consequences, and the courts that supervise them depend on the integrity of the engineering analyses submitted. A consequentialist analysis therefore supports not only Engineer A's isolation but also the development of institutional policies — such as cooling-off periods, formal information barriers, and mandatory court disclosure of recusal arrangements — that prevent the systemic damage that individual good faith alone cannot remedy.
In response to Q303, from a virtue ethics perspective, Engineer A's voluntary election of isolation and his expressed willingness to stand behind his stamped work reflect genuine professional integrity and practical wisdom, but they do not fully exonerate the decision to accept employment with an adversarial party in an active proceeding without first seeking consent from the former client. Virtue ethics evaluates not only the agent's response to a difficult situation but also the quality of judgment that led to the situation. A practically wise engineer — one who fully internalized the professional norms governing cross-side employment transitions — would have recognized the conflict before it materialized and either deferred the employment transition until the proceeding concluded, sought the former client's informed consent, or at minimum disclosed the potential conflict to all parties before stamping the final document. Engineer A's subsequent conduct is commendable, but the virtue ethics analysis suggests that the ethical failure, if any, occurred upstream of the isolation decision, at the moment when the employment transition was contemplated without adequate prospective conflict assessment.
In response to Q304, from a deontological perspective, Engineer A's ongoing accountability for the stamped water-rights analysis does create a positive duty to affirmatively correct or clarify that document if material errors are identified during the adversarial proceeding, even when doing so might incidentally benefit the State. This duty derives from the non-delegable professional responsibility that attaches to a licensed engineer's stamp: the stamp is a representation to the court and the public that the analysis meets applicable professional standards, and that representation does not expire upon Engineer A's change of employment. However, the mechanism for discharging this correction duty must be carefully structured to avoid violating the participation prohibition. Engineer A should not volunteer corrections through the State's litigation team; rather, he should communicate identified errors directly to the former private firm or, if necessary, to the court through a neutral channel, ensuring that the correction serves the integrity of the proceeding rather than the adversarial interests of his current employer. The deontological duty to correct is real, but its discharge must be channeled through procedures that respect the concurrent confidentiality and non-participation obligations.
In response to Q401, the conflict of interest would not have been entirely avoided by pre-stamp disclosure of the pending employment transition, but it would have been substantially mitigated and its ethical management would have been far more defensible. If Engineer A had disclosed his contemplated transition to the State before completing and stamping the water-rights analysis in Step 2, the private firm and client would have had the opportunity to reassign the stamping responsibility to an engineer without a prospective adverse relationship, thereby eliminating the ongoing professional accountability complication that now entangles Engineer A's isolation. The conflict arising from cross-side employment in an active proceeding would still have existed in some form — Engineer A would still possess insider knowledge of the analysis — but the absence of a stamped document would have removed the most acute dimension of the conflict: the tension between accountability for the stamp and the participation prohibition. Pre-stamp disclosure is therefore the ethically optimal intervention point, and its omission is the primary procedural failure in this case.
In response to Q402, if the State had not implemented isolation and had instead assigned Engineer A to duties requiring him to review or advise on technical aspects of the water-rights objection, Engineer A would have been obligated to refuse those specific assignments. The refusal obligation derives directly from Code Section III.4.b., which prohibits participation in or representation of an adverse interest without the consent of all interested parties — a consent that was never obtained. If the State had persisted in requiring such participation after Engineer A's refusal, the ethical analysis supports the conclusion that Engineer A would have been obligated to resign from the State position rather than participate adversarially against his former client. This conclusion follows from the structure of the faithful agent duty: Engineer A cannot discharge his duty to the State by violating his prior obligations to the former client, and an employer that demands such a violation forfeits its claim to the engineer's compliance. The resignation option is not merely permissible in this scenario — it is ethically required as the only means of honoring the non-waivable constraints that govern Engineer A's conduct.
In response to Q403, even if the former private client had provided informed consent to Engineer A's participation in the State's case — analogous to the consent mechanism discussed in BER Case No. 98-4 — the unique features of a stamped engineering document in an active court proceeding impose constraints that consent alone cannot fully override. Consent from the former client would remove the prohibition on adverse participation under Code Section III.4.b., but it would not resolve the professional accountability dimension of the stamped document: Engineer A's stamp is a representation to the court, not merely to the client, and the court's interest in the integrity of that representation is independent of the client's willingness to waive its own protections. Furthermore, consent obtained in the context of an active adversarial proceeding — where the former client is under litigation pressure — may not reflect the fully informed, voluntary authorization that the consent mechanism requires. The BER Case No. 98-4 precedent, which involved sequential engagements in unrelated matters, is distinguishable precisely because it did not involve a stamped document whose professional accountability runs to a judicial tribunal rather than solely to a private party.
In response to Q404, had Engineer A joined the State before completing the water-rights analysis rather than after stamping it, the ethical analysis would change materially in one significant respect but remain substantially the same in all others. The absence of a stamped document would eliminate the ongoing professional accountability obligation — the specific duty to stand behind and potentially defend or correct a document bearing his professional seal — which is the most acute and distinctive feature of the current conflict. However, the cross-side employment transition alone would still trigger the same conflict-of-interest constraints under Code Sections II.4.a. and III.4.b.: Engineer A would still possess insider knowledge of the analysis from his participation in its development, he would still be prohibited from participating adversarially against the former client without consent, and the State would still be obligated to isolate him from the proceeding. The stamp therefore amplifies and complicates the conflict but does not create it; the conflict's foundation is the cross-side employment transition in an active adversarial proceeding, and that foundation exists independently of whether Engineer A's name appears on the final document.
The case reveals that the faithful agent duty and the former client adversarial participation prohibition do not operate as competing equals — rather, the prohibition against adverse participation functions as a threshold constraint that limits how fully Engineer A can discharge his faithful agent duty to his current State employer. The Board resolved this tension not by choosing one principle over the other, but by structuring Engineer A's State role so that the faithful agent duty is fulfilled within a bounded domain that excludes the water-rights proceeding. This resolution teaches that when two loyalty obligations point in opposite directions, the ethical solution is role partitioning rather than principle subordination: Engineer A remains a fully faithful agent to the State in all matters except this one proceeding, and the State's acceptance of that limitation is itself an ethical obligation the Board places on the agency. The practical implication is that the faithful agent duty is inherently scoped by the circumstances under which employment was accepted — an engineer cannot owe unlimited fidelity to a new employer when that employer knowingly hired someone carrying a pre-existing adverse obligation.
The tension between Engineer A's ongoing professional accountability for the stamped water-rights analysis and the prohibition against adversarial participation in the proceeding is the most structurally unresolved tension in the case. The Board's isolation remedy addresses the adversarial participation side but does not fully reconcile it with the stamped document accountability principle, which independently requires Engineer A to be capable of standing behind, defending, or correcting his professional work product. These two obligations pull in opposite directions: accountability demands engagement with the document's technical content in the proceeding where it is operative, while the participation prohibition demands silence and distance from that same proceeding. The case teaches that when a stamped document becomes evidence in an adversarial proceeding where the stamping engineer has crossed to the opposing side, no clean resolution exists — isolation preserves the participation prohibition at the cost of partially suspending the accountability principle, and the profession must accept that this residual tension is the unavoidable consequence of the cross-side employment transition itself. The lesson for principle prioritization is that the participation prohibition takes precedence in the active proceeding context, but the accountability obligation survives in a dormant form, meaning Engineer A retains a duty to correct material errors in the stamped work through channels other than adversarial participation if such errors come to light.
The confidentiality principle and the objectivity obligation interact in this case to produce a compounding constraint that makes Engineer A's participation in the State's case ethically untenable even if the adversarial participation prohibition did not exist independently. Engineer A possesses insider knowledge of the former client's analytical methods, litigation strategy, and technical vulnerabilities embedded in the stamped report — knowledge that cannot be selectively quarantined from his professional judgment. Any technical contribution he made to the State's objection, even framed as neutral engineering analysis, would inevitably be shaped by that confidential knowledge, violating the confidentiality principle. Simultaneously, the objectivity obligation requires that his technical judgments be free from the distorting influence of prior client loyalty, which is structurally impossible when the subject matter is his own stamped work product. This case teaches that confidentiality and objectivity are not merely parallel obligations but mutually reinforcing constraints: when an engineer's confidential knowledge of one party's position is inseparable from the technical subject matter of an adversarial proceeding, both principles converge to prohibit participation, and isolation is the only mechanism that honors both simultaneously without requiring the engineer to choose between them.
Professional engineering ethics norms; NSPE Code
Conflict of Interest Disqualification Standard (Water Rights Context)
Conflict of Interest Disqualification Standard
In his current employment, he has been isolated from the State's case in the matter, and his current position does not include opposing this or other cases.
Governs Engineer A's recusal and isolation from the State's case in the water rights adjudication, establishing when disqualification or isolation is required due to prior employment with the opposing party
Conflict of Interest Disclosure Supersession — Engineering Profession Historical Evolution
The Board traces the historical evolution from absolute-avoidance to disclosure-based conflict management as the governing standard, establishing that the current constraint requires disclosure rather than absolute avoidance.
Engineering Profession / All Licensed Engineers
Conflict of Interest Disclosure Supersession of Absolute Avoidance Constraint
Engineers are constrained to apply the current evolved disclosure-based standard for conflict-of-interest management — requiring prompt disclosure of all known or potential conflicts — rather than the superseded absolute-avoidance standard, which required removal from all conflict situations regardless of practicability.
NSPE Code of Ethics (evolved conflict-of-interest provisions); engineering profession consensus on impracticability of absolute avoidance
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.
Ongoing — applies to all current professional engineering practice
Over time, the engineering profession came to the general conclusion that by the very nature of the engineer's role in society, conflicts of interests were virtually an immutable fact of professional engineering practice.
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 transitions from a position of single-client loyalty to a structurally conflicted position; dual obligations to former private client and new State employer are now irreconcilable without consent and isolation
At the moment Engineer A accepted State employment
Upon Engineer A accepting employment with the State, which is an active objector in the same water-rights proceeding, a direct and concrete conflict of interest came into existence. This event is the automatic result of two previously independent facts (Engineer A's prior work for the applicant and Engineer A's new employment with an adversary) converging.
Conflict of Interest Materializes (Event 3) → Consent Requirement Triggered (Event 7)
As an automatic consequence of the conflict of interest materializing and the isolation being implemented, a consent requirement was triggered, meaning that affected parties must provide informed consent for Engineer A's continued involvement in any capacity touching the proceeding.
Conflict of Interest Materializes (Event 3)
Without the conflict of interest materializing, no consent requirement would be triggered; the consent requirement is a direct legal and ethical consequence of the conflict itself
Applicable professional ethics rules requiring consent in dual-loyalty conflict scenarios
Conflict of interest formally materializing upon Engineer A joining the State
The isolation mechanism being implemented as a response
Engineer A (primary); State as employer (secondary)
Materialized conflict + isolation implementation + governing ethics rules = automatic triggering of consent requirement
Engineer A's ability to participate in the State's case is legally and ethically suspended; participation without consent would constitute a violation of professional obligations regardless of isolation measures already in place
Concurrent with conflict materialization; operative throughout remaining proceeding
As an automatic consequence of the conflict of interest materializing and the isolation being implemented, the requirement that Engineer A obtain consent from the former employer and private client before any participation in the State's case became operative. This is not a decision but an automatic normative trigger arising from the confluence of prior engagement, adversarial context, and employment transition.
Professional engineering ethics norms; government ethics regulations
Cooling-Off Period Framework (Employment Transition)
Provides guidance on the appropriate waiting period and isolation measures for Engineer A following his transition from the private firm to the State, particularly regarding participation in the ongoing water rights adjudication
How should Engineer A manage his conflicting obligations to his former private client and his current State employer — who are adversarial parties in the water-rights proceeding — given that he stamped the applicant's technical analysis and now works for the objecting State agency?
Engineer A's Conflict Management Obligations Upon Transitioning to the State as an Adversarial Party
Accept formal isolation from the State's water-rights case, refrain from disclosing any confidential technical or strategic information derived from the prior engagement, and limit State service to unrelated water-rights matters — while remaining available to stand behind the stamped analysis if called upon directly by the court or the former client through a non-adversarial channel
Seek retroactive informed consent from the former private firm and client to permit limited technical participation in the proceeding on behalf of the State, on the theory that consent under III.4.b. would cure the participation prohibition and allow Engineer A to contribute general water-rights expertise while maintaining confidentiality of litigation strategy
Resign from the State position rather than accept isolation, on the grounds that Engineer A's mere presence within the objecting agency as the engineer who stamped the opposing analysis creates an appearance of impropriety that organizational isolation alone cannot cure, and that complete departure is the only remedy that fully protects the former client's interests and the integrity of the adjudication
Does Engineer A's professional stamp on the water-rights analysis create a continuing obligation to defend, clarify, or correct that document during the remaining steps of the court proceeding, and if so, how can that accountability obligation be discharged without violating the prohibition on adversarial participation against the former client?
Engineer A's Ongoing Professional Accountability for the Stamped Water-Rights Analysis in an Active Adversarial Proceeding
Accept isolation from the proceeding while preserving a narrow, non-adversarial accountability channel — remaining available to respond to direct requests from the court or the former client regarding the stamped analysis, and communicating any identified material errors directly to the former private firm or through a neutral court-directed mechanism rather than through the State's litigation team
Treat the co-stamping engineer at the private firm as the sole accountable professional for the document going forward, declining all engagement with the stamped analysis on the grounds that the cross-side employment transition and isolation protocol together suspend Engineer A's accountability obligations for the duration of the active proceeding, with those obligations reviving only after the proceeding concludes
Proactively notify the court of Engineer A's recusal status and the existence of the co-stamping engineer, and offer to provide technical clarification of the stamped analysis to any party — including the State — under court supervision, on the theory that court-supervised neutral technical engagement with one's own stamped work product is categorically distinct from adversarial participation and satisfies both the accountability obligation and the objectivity standard
At what point was Engineer A obligated to disclose his prospective employment conflict, and is the informal isolation implemented by the State ethically sufficient to discharge the conflict-of-interest obligations that arose from the cross-side employment transition — or does the gravity of the transition require a formal, documented, and enforceable recusal protocol?
Timing and Adequacy of Engineer A's Conflict of Interest Disclosure and the Sufficiency of Informal Isolation as a Remedial Measure
Disclose the prospective employment conflict to the private firm and client at the earliest practicable moment — before stamping the final analysis — seek informed consent under III.4.b. before accepting the State position, and upon transition, work with the State to implement a formal, documented recusal protocol with defined information barriers, named personnel restrictions, and written supervisory accountability, disclosed to the court as a transparency measure
Treat the informal isolation already implemented by the State as ethically sufficient under the evolved conflict-disclosure-and-management standard — on the grounds that Code II.4.a. requires disclosure and management rather than avoidance, that Engineer A's voluntary compliance with isolation satisfies the management requirement, and that the profession's recognition of conflicts as virtually immutable in engineering practice supports informal good-faith arrangements as adequate remedies for revolving-door transitions
Disclose the conflict to the private firm and client retroactively upon accepting the State position — rather than before stamping — and propose a formal isolation protocol to the State, on the theory that the disclosure obligation under II.4.a. crystallized upon formal employment acceptance rather than during preliminary negotiations, and that retroactive disclosure with prospective formal isolation adequately protects all parties' interests going forward even if it does not address the pre-stamp period
How should Engineer A structure his relationship to the State's water-rights case following his transition from the private firm — through voluntary isolation, formal documented recusal, or complete withdrawal from State employment — to satisfy both the appearance of impropriety avoidance obligation and the private-to-public transition adversarial proceeding non-participation obligation?
Engineer A Water Rights Analysis: Isolation Adequacy and Non-Participation Obligation Following Cross-Side Employment Transition
Elect voluntary isolation from the State's water-rights case, accept formal assignment to unrelated duties, and request that the State implement a documented recusal protocol with defined information barriers acknowledged in writing by Engineer A and supervising personnel, with disclosure of the recusal arrangement to the court
Accept the State's informal supervisory arrangement assigning Engineer A to other duties without requiring a written recusal protocol, relying on the good faith of supervisors and colleagues to maintain separation throughout the remaining proceeding steps
Resign from the State position entirely rather than remain employed by an adversarial party in an active proceeding where Engineer A's stamped document is the central technical exhibit, on the ground that no isolation mechanism can cure the structural appearance of impropriety created by cross-side employment
Engineer A Water Rights Analysis Engineer
How should Engineer A discharge his ongoing professional accountability for the stamped water-rights analysis — by standing ready to defend or correct the document through any available channel, by limiting accountability responses strictly to neutral court-directed channels while maintaining isolation from the State's litigation posture, or by treating the isolation protocol as temporarily suspending active accountability duties for the duration of the proceeding?
Engineer A Stamped Document: Ongoing Professional Accountability Obligation Versus Adversarial Participation Prohibition in Active Court Proceeding
Maintain isolation from the State's litigation posture while preserving a narrow accountability channel — communicating any identified material errors in the stamped analysis directly to the former private firm or to the court through a neutral procedural mechanism, explicitly avoiding routing any such communication through the State's legal or technical team
Treat the isolation protocol as temporarily suspending active accountability duties for the duration of the proceeding, deferring entirely to the co-stamping engineer to defend or clarify the document, and reserving Engineer A's accountability obligations for post-proceeding contexts where the adversarial participation prohibition no longer applies
Proactively notify the court of Engineer A's recusal status and his concurrent professional accountability for the stamped document, requesting that the court establish a formal procedural mechanism — such as a court-appointed neutral technical reviewer — through which Engineer A can respond to direct challenges to the analysis without those responses being attributed to the State's adversarial posture
At what point should Engineer A have disclosed his prospective employment transition to the State and sought consent from the former private client — before stamping the final water-rights analysis, upon formally accepting the State position, or upon learning that the State was an active objector in the specific proceeding — and what disclosure and consent actions were required to satisfy Code Sections II.4.a. and III.4.b.?
Engineer A Pre-Transition Conduct: Timing of Conflict Disclosure and Consent Obligation Before Stamping and Accepting State Employment
Disclose the prospective State employment relationship to the private firm and client before stamping the final water-rights analysis, seek the former client's informed consent to the employment transition under Code Section III.4.b., and if consent is withheld, decline to stamp the document and arrange for reassignment of the stamping responsibility to an engineer without a prospective adverse relationship
Complete and stamp the water-rights analysis as assigned, then disclose the employment transition and seek the former client's consent upon formally accepting the State position — treating the disclosure obligation as crystallizing at the moment of formal employment acceptance rather than at the earlier stage of contemplation or negotiation
Complete and stamp the water-rights analysis, accept the State position, and rely on the State's subsequent implementation of an isolation protocol as a sufficient remedial substitute for pre-transition consent — on the ground that the public-interest dimension of State employment and the non-absolute character of former client loyalty under BER Case No. 98-4 together permit the transition without prospective client consent when robust isolation is implemented
State Employee, former Private Firm Engineer
Any public statement supporting the prior work could be construed as participating in the proceeding, even if not on behalf of the State
Engineer A's expressed willingness to support prior work could be perceived as continued loyalty to the former private client, creating appearance issues in his current State employment
The distinction between 'supporting prior work' and 'adversarial participation' may be difficult to maintain in practice during cross-examination or mediation
Duty of honesty and integrity in professional matters
Obligation not to repudiate technically sound prior work without cause
Professional duty to stand behind stamped and certified engineering work
Distinction between advocacy (prohibited) and technical integrity (required)
Engineer as faithful agent and trustee to former client (NSPE Code Section II.4)
Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the engineering profession (NSPE Code)
Professional accountability for stamped and certified documents
Maintain professional integrity by not abandoning or repudiating technically sound work that bears his professional stamp, while avoiding active participation in the adversarial proceedings on behalf of the State
Potential tension with the duty to remain fully isolated from the case as required by the discussion's conclusion
Risk of violating the prohibition on participating in a proceeding where specialized knowledge was gained for a former client, if 'supporting prior work' crosses into active participation
Ethical judgment to distinguish permissible passive support from prohibited adversarial participation
Self-awareness of the boundaries imposed by conflict-of-interest obligations
Technical expertise in water-rights analysis to assess continued validity of prior work
Ongoing during steps 3-5 of the court process, after joining the State
Engineer A determined that he can and should continue to support the technical work he performed and which was included in the stamped report, while simultaneously refraining from actively representing the State's adversarial interest in the same proceeding. This reflects Engineer A's view that his professional obligation to stand behind certified work is distinct from prohibited adversarial participation.
Deciding to Support Prior Stamped Work (Action 4) → Refraining from Disclosing Confidential Information (Action 5)
Engineer A determined that he can and should continue to support the technical work he performed and stamped, while simultaneously deciding not to disclose confidential technical processes or business affairs of the former employer, creating a dual obligation that shapes the boundaries of permissible support.
Deciding to Support Prior Stamped Work (Action 4)
Without the decision to support prior work, no tension with confidentiality obligations would arise; without the confidentiality constraint, Engineer A's support could be unrestricted, the interaction of both decisions defines the ethical boundary
Refraining from Disclosing Confidential Information (Action 5)
Engineer A's prior stamped authorship creating a legitimate basis for continued technical support
The existence of confidential information from the former private firm
The ongoing water-rights proceeding requiring technical testimony or analysis
Legitimate support interest + confidentiality obligation + active proceeding = constrained but permissible continued involvement in defending prior work
Does not fully resolve the conflict of interest since no consent was obtained from former employer and client
Engineer A's professional knowledge and judgment remain underutilized by his current employer in this matter
Limits the State's ability to leverage Engineer A's specialized expertise in the case
Duty not to participate in or represent an adversary interest in a specific proceeding where specialized knowledge was gained for a former client without consent (NSPE Code)
Duty to disclose conflicts of interest to current employer
Obligation to act so as not to compromise the integrity of the court proceedings
Obligation to protect confidential information of former employer and client
Avoidance of appearance of impropriety in adversarial proceedings
Engineers shall not disclose confidential information of former clients without consent (NSPE Code)
Engineers shall not participate in or represent an adversary interest in a specific proceeding where specialized knowledge was gained for a former client without consent of all interested parties (NSPE Code)
Protection of public trust in engineering judgment and court processes
Engineer A (newly employed State Engineer) and the State (as institutional employer)
Prevent Engineer A from participating in or representing the State's adversarial interest in a proceeding where he gained specialized knowledge on behalf of the opposing private client, thereby honoring confidentiality and loyalty obligations to the former employer and client
Administrative capacity to reassign duties within the State agency
Institutional conflict-of-interest management procedures
Knowledge of NSPE Code obligations regarding former clients in adversarial proceedings
Self-assessment of conflict-of-interest scope and duration
Upon commencement of State employment, during steps 3-5 of the court process
Isolation alone does not fully satisfy the NSPE Code requirement to obtain consent from former employer and client before any participation; the discussion notes consent was not obtained
Upon joining the State, Engineer A (in coordination with the State as employer) decided to be isolated from the State's involvement in the specific water-rights case where the former private firm's client is the applicant. This decision was made to manage the conflict of interest created by Engineer A's prior work and stamped document on behalf of the opposing party.
Electing Isolation from State's Case (Action 3) → Isolation Formally Implemented (Event 5)
Upon joining the State, Engineer A (in coordination with the State as employer) decided to be isolated from the State's case, which directly produced the formal isolation mechanism documented in Event 5.
Electing Isolation from State's Case (Action 3)
Without Engineer A's election of isolation (or without the State's cooperation), the formal isolation mechanism would not have been implemented, leaving the conflict unmitigated and potentially violating ethics codes
Isolation Formally Implemented (Event 5)
Engineer A's volitional decision to accept isolation
Existence of an active conflict requiring mitigation
State's cooperation and coordination in implementing the isolation
Engineer A and State (joint decision-makers)
Mutual agreement between Engineer A and State + active conflict = formal isolation implemented
Engineer A — Conflict of Interest Recognition and Recusal
Conflict of Interest Recognition and Recusal Capability
Engineer A possesses the capability to recognize that his prior employment relationship with the private firm — and his role in stamping the water-rights analysis — creates an actual conflict of interest in his current State role as an employee of the formal objector, and to assess that recusal (implemented through the isolation arrangement) is the appropriate remedial action.
Engineer A's prior work on the water-rights analysis for the private client, combined with his current employment by the State (the objector), creates a direct conflict of interest requiring recusal from the State's adversarial case.
Engineer A's acceptance of the isolation arrangement imposed by the State and his recognition of the ethical concerns surrounding the remaining steps in the court proceeding.
Engineer A worked on the project through step No. 2 and resigned from the firm to work for the State, who is an objector in this specific analysis.
Engineer A — Current Employer Litigation Strategy Confidentiality
Current Employer Litigation Strategy Confidentiality Capability
Engineer A must possess the capability to recognize and protect the confidentiality of the State's litigation strategy, internal technical assessments, and legal positions in the water-rights proceeding, honoring the isolation arrangement as the operative mechanism for managing this obligation.
Engineer A is employed by the State, which is an adversarial party in the water-rights proceeding. The State has imposed an isolation arrangement to manage the conflict, and Engineer A must honor the confidentiality of the State's litigation strategy.
Engineer A's awareness that he has been isolated from the State's case and that his current position does not include opposing this or other cases.
Engineer A — Dual Loyalty Conflict Navigation
Dual Loyalty Conflict Navigation Capability
Engineer A must possess the capability to navigate the concurrent loyalty obligations he owes to his former private employer's client (whose water-rights analysis he stamped) and his current public employer (the State, which is the formal objector in that same proceeding), recognizing that the isolation arrangement is the structural mechanism that honors both obligations simultaneously.
Engineer A's transition from the private firm to the State placed him at the intersection of two adversarial parties in the same water-rights proceeding, requiring navigation of concurrent loyalty obligations.
Engineer A's recognition of the tension between supporting his prior stamped work and his concerns about the remaining adversarial steps in the court process, combined with his acceptance of the State's isolation arrangement.
Engineer A feels that he can and should support the work he performed and which was included in the stamped report, but he is concerned about the remaining steps in the court process.
In his current employment, he has been isolated from the State's case in the matter.
Engineer A — Former Employer Ongoing Duty Recognition
Former Employer Ongoing Duty Recognition Capability
Engineer A possesses the capability to recognize that his prior employment at the private firm — and his professional relationship with the client whose water-rights analysis he stamped — creates ongoing loyalty and confidentiality duties that persist after his transition to State employment, prohibiting him from participating in proceedings adverse to the former client.
Engineer A's transition from the private firm to the State did not extinguish his professional duties to the former employer's client, whose water-rights analysis he stamped.
Engineer A's recognition that he 'can and should support the work he performed' (honoring the former client relationship) while being concerned about participating in the adversarial steps of the proceeding.
Engineer A — Private-to-Public Adversarial Proceeding Participation Boundary
Private-to-Public Adversarial Proceeding Participation Boundary Capability
Engineer A must possess the capability to correctly identify the boundary between permissible support of his prior stamped work and impermissible active participation in the adversarial water-rights court proceeding on behalf of either the former private client or the State.
Engineer A transitioned from the private firm (which prepared the water-rights analysis) to the State (the formal objector), creating a participation boundary question for steps 3–5 of the court proceeding.
Engineer A's concern about 'the remaining steps in the court process' and his recognition that his current position includes an isolation arrangement from the State's case.
Engineer A — Revolving Door Recusal Obligation Assessment
Revolving Door Recusal Obligation Assessment Capability
Engineer A possesses the capability to assess whether his prior employment at the private firm creates a conflict of interest requiring recusal from the State's adversarial case against the former client's water-rights application, and to recognize that the isolation arrangement imposed by the State is the appropriate recusal mechanism.
Engineer A transitioned from private to public employment, placing him in a revolving-door conflict scenario requiring assessment of recusal obligations in the water-rights court proceeding.
Engineer A's compliance with the State's isolation arrangement and his recognition of the ethical concerns surrounding his participation in the remaining steps of the court proceeding.
Engineer A — Revolving Door Regulatory Gap Navigation
Revolving Door Regulatory Gap Navigation Capability
Engineer A must possess the capability to recognize that formal revolving-door provisions or cooling-off period clauses may be absent from his employment arrangement with the State, and to apply professional ethics principles to fill that regulatory gap — maintaining ethical standards that require recusal and isolation even in the absence of explicit formal rules.
The case does not describe explicit revolving-door regulations governing Engineer A's transition, requiring him to apply professional ethics principles to navigate the gap.
Engineer A's acceptance of the State's isolation arrangement as the operative ethical mechanism, even where no explicit regulatory cooling-off period is described.
Engineer A — Stamped Document Ongoing Technical Accountability
Stamped Document Ongoing Technical Accountability Capability
Engineer A possesses the capability to recognize that stamping the water-rights analysis report created an ongoing professional accountability obligation, and to assess the scope and limits of that accountability as the court proceeding advances beyond the engineering support step.
Engineer A stamped the water-rights analysis report while employed at the private firm, then transitioned to the State (the objector), creating an ongoing accountability question for the stamped document.
Engineer A's recognition that he 'can and should support the work he performed and which was included in the stamped report' while simultaneously expressing concern about the remaining steps in the court process.
Engineer A, along with one other employee at the firm, stamped the final document.
Engineer A — Water Rights Engineering Technical Competence
Water Rights Engineering Technical Competence
Engineer A possesses advanced technical competence in water rights engineering, having performed and stamped a water-rights analysis that quantified water and established terms and conditions for future use in a court-based adjudication process.
Engineer A worked for a private engineering firm in the field of water rights and participated in completing a water-rights analysis through the engineering support step before transitioning to State employment.
Engineer A's participation in and stamping of the water-rights analysis report prepared for the client, covering the engineering support step of the multi-step court process.
Engineer A worked for a private engineering company in the field of water rights.
The firm was hired by a client to complete a water-rights analysis in which Engineer A participated.
These types of analyses quantify water and provide terms and conditions for future use that must be approved by the local courts.
Engineer A's employment with the State overlaps ongoing water-rights court proceeding (steps 3-5)
In his current employment, he has been isolated from the State's case in the matter... he is concerned about the remaining steps in the court process
ongoing water-rights court proceeding (steps 3-5)
Entity1 starts before Entity2 and ends during Entity2
Engineer A's engagement with Attorney X (BER 98-4) before Engineer A's second engagement with ABC Manufacturing (BER 98-4)
Several years later, Engineer A was again retained by ABC Manufacturing in a different patent litigation matter not related to either of the preceding events
Engineer A's engagement with Attorney X (BER 98-4)
Engineer A's second engagement with ABC Manufacturing (BER 98-4)
Engineer A's first engagement with ABC Manufacturing (BER 98-4) before Engineer A's engagement with Attorney X (BER 98-4)
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's first engagement with ABC Manufacturing (BER 98-4)
Engineer A's isolation from the State's case starts Engineer A's employment with the State
In his current employment, he has been isolated from the State's case in the matter
Engineer A's isolation from the State's case
Entity1 and Entity2 start at the same time, Entity1 ends first
Engineer A's performance of services for ABC Manufacturing and Attorney X (BER 98-4) before cross-examination at trial questioning Engineer A's prior relationships
However, during cross-examination at trial, opposing counsel questioned Engineer A's previous relationship, both in defense of and in litigation with ABC Manufacturing
Engineer A's performance of services for ABC Manufacturing and Attorney X (BER 98-4)
cross-examination at trial questioning Engineer A's prior relationships
Engineer A's resignation from the private firm before Engineer A's employment with the State
Engineer A worked on the project through step No. 2 and resigned from the firm to work for the State, who is an objector in this specific analysis
Engineer A's resignation from the private firm
Engineer A's work on steps 1 and 2 (water-rights analysis) before Engineer A's resignation from the private firm
Engineer A worked on the project through step No. 2 and resigned from the firm to work for the State
Engineer A's work on steps 1 and 2 (water-rights analysis)
Engineer Expert Non-Advocate Independence — Engineer A BER 98-4 Expert Witness Role
During cross-examination, opposing counsel implied Engineer A acted improperly by serving both sides sequentially, attempting to draw a parallel to the plaintiff/defense bar structure of the legal profession — the Board rejected this framing as inconsistent with the engineer's non-advocate role.
Engineer Expert Non-Advocate Independence Constraint
Engineer A, as an expert witness in patent and product liability litigation, was constrained to render objective technical opinions as an assistant to the trier of fact — not as an advocate for the retaining party — and was prohibited from allowing opposing counsel's implication of impropriety to compromise her professional independence or cause her to adopt an advocacy posture.
NSPE Code of Ethics professional independence provisions; BER Case No. 98-4
unlike attorneys, they are not advocates in rendering their professional services, and thus they should not be expected to compromise their professional independence and autonomy.
Duration of each expert witness engagement
It is important to note that the engineer's role as an expert witness in a litigation matter is to assist the trier of fact, which may be a judge or jury, in better understanding the technical complexities of the case.
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.
Insider Knowledge Non-Deployment — Engineer A Former Private Client Water Rights
Engineer A's detailed insider knowledge of the analysis he performed and co-stamped, now held while employed by the opposing party, creates a specific constraint on the use of that knowledge in the adversarial proceeding
Insider Knowledge Non-Deployment Against Former Client Constraint
Engineer A is prohibited from deploying his specialized insider knowledge of the water-rights analysis — including knowledge of its analytical assumptions, data sources, technical vulnerabilities, and preparation methodology — against the former private client in the adversarial court proceeding, even if requested to do so by his current employer (the State).
NSPE Code of Ethics — Conflict of Interest and Faithful Agent provisions; BER Case No. 98-4
For the duration of the active water-rights court proceeding
Engineer A resigned from the firm to work for the State, who is an objector in this specific analysis
Engineer A is formally walled off from the State's case; institutional protocols are in place; the conflict is managed but not resolved; Engineer A's participation in the proceeding on either side is suspended pending consent
Upon or shortly after Engineer A joining the State
Upon joining the State, Engineer A was formally isolated from the State's case in the water-rights proceeding. This outcome, whether initiated by Engineer A, the State, or both, represents the institutional recognition and operationalization of the conflict-of-interest constraint.
Primary normative authority governing Engineer A's professional obligations regarding conflict of interest, responsibility for stamped work, and conduct during employment transition from private firm to State agency
The Code also states that 'Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained particular specialized knowledge on behalf of a former client or employer.'
The NSPE Code of Ethics (and the codes of other engineering societies) make it clear that 'Engineers shall not disclose, without consent, confidential information concerning the business affairs or technical processes of any present or former client or employer...'
NSPE Board of Ethical Review in analyzing Engineer A's obligations
Primary normative authority cited throughout the discussion, including Section II.4 on faithful agent and trustee obligations, confidentiality provisions, and the prohibition on representing adverse interests without consent
Non-Absolute Former Client Loyalty — Engineer A BER 98-4 Sequential Adverse Service
Engineer A served ABC Manufacturing, then served an adverse plaintiff in an unrelated matter, then served ABC Manufacturing again — the Board held this was not a prohibited conflict because faithful agent status does not create absolute perpetual loyalty.
Non-Absolute Former Client Loyalty Perpetuity Prohibition Constraint
Engineer A's faithful agent obligation to ABC Manufacturing did not create a perpetual absolute loyalty bar preventing her from serving an adverse plaintiff in an entirely unrelated product liability matter — the non-absolute loyalty principle permitted the adverse service in unrelated matters without ethical violation.
NSPE Code Section II.4 (faithful agent and trustee); BER Case No. 98-4
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.
Duration of the sequential engagements across unrelated matters
Post-Employment Confidential Information Non-Exploitation — Engineer A Former Employer and Client
Engineer A co-stamped the water-rights analysis and has detailed insider knowledge of its preparation; he is now employed by the opposing State agency and must not deploy that knowledge against his former employer and client.
Post-Employment Confidential Information Non-Exploitation Constraint
Engineer A is prohibited from exploiting confidential information, technical processes, and business affairs of his former private firm employer and the water-rights applicant client — including insider knowledge of the water-rights analysis's assumptions, data gaps, and vulnerabilities — to benefit his current employer (the State) in the adversarial proceeding, as these confidentiality obligations survive employment termination.
NSPE Code of Ethics — 'Engineers shall not disclose, without consent, confidential information concerning the business affairs or technical processes of any present or former client or employer'
The NSPE Code of Ethics (and the codes of other engineering societies) make it clear that 'Engineers shall not disclose, without consent, confidential information concerning the business affairs or technical processes of any present or former client or employer, or public body on which they serve.'
Ongoing — confidentiality obligations survive employment termination indefinitely
Engineer A clearly has an ongoing duty to honor his obligations both to his former employer and the private client.
The ethical analysis is anchored to established precedent; Engineer A's obligations are clarified and reinforced by prior BER reasoning; the conclusion that consent is required before any participation is normatively grounded
Referenced during ethical analysis; precedent pre-dates current case
The Board of Ethical Review's prior case No. 98-4, addressing analogous conflict-of-interest dynamics in adversarial proceedings, became applicable to Engineer A's situation. This exogenous event, the existence of established ethical precedent, shapes and constrains the normative analysis of Engineer A's obligations.
Prior Employment Recusal — Engineer A Cross-Side Employment Water Rights
Engineer A transitioned from the private firm (where he co-stamped the water-rights analysis) to the State agency (which is an objector in the same proceeding) — his prior technical role requires full recusal from the State's case.
Engineer A is required to recuse himself from any exercise of official State authority or technical participation in the water-rights proceeding involving his former private firm employer and client, because his prior principal technical role in preparing the contested analysis creates an appearance of compromised impartiality that cannot be adequately mitigated by disclosure alone.
NSPE Code of Ethics conflict of interest provisions; principle of appearance of impartiality in public agency roles
Engineer A should be assigned other duties by the state, remain isolated from the State's water rights case involving Engineer A's former employer and its client.
Throughout the active water-rights court proceeding
Prior Employment Recusal — Engineer A State Water Rights Case
Engineer A's transition from the private firm to the State agency that is an objector in the same proceeding requires formal recusal from the State's case, implemented through organizational isolation
Engineer A must recuse himself from any administrative, technical, or advisory role in the State's case against the former private client's water-rights application, because his prior employment with the private firm and his co-authorship of the disputed analysis create an appearance of compromised impartiality that cannot be adequately mitigated by disclosure alone.
NSPE Code of Ethics — Conflict of Interest provisions; Public Official Conflict of Interest Standard
he has been isolated from the State's case in the matter
his current position does not include opposing this or other cases
{'sector': 'Private', 'specialty': 'Water rights engineering'}
The private engineering firm employed Engineer A, assigned him to the water-rights analysis project, and was the entity through which the client retained engineering services. Engineer A subsequently resigned to join the State.
{'type': 'client', 'target': 'Water Rights Analysis Client'}
{'type': 'employee', 'target': 'Engineer A Water Rights Analysis Engineer'}
Engineer A worked for a private engineering company in the field of water rights
The firm was hired by a client to complete a water-rights analysis in which Engineer A participated
The adversarial context in which Engineer A's conflict is embedded remains live; Engineer A's obligations of isolation and non-participation are not time-limited but extend through all remaining steps of the proceeding
Ongoing after Engineer A joined the State
The water-rights proceeding remained active and ongoing after Engineer A's employment transition, with Steps 3 through 5 (objections, rebuttal, and mediation/trial) yet to be completed. This exogenous continuation of the proceeding means that Engineer A's prior work product remains live and contested in an adversarial forum.
NSPE Code of Ethics; state licensing board rules
Professional Responsibility Acknowledgment Standard (Stamped Document)
Professional Responsibility Acknowledgment Standard
Engineer A feels that he can and should support the work he performed and which was included in the stamped report
Establishes Engineer A's ongoing professional obligation to accept responsibility for and support the water-rights analysis he stamped, even after transitioning to a new employer
State ethics laws; professional engineering norms
Public Official Conflict of Interest Standard (State Employee Context)
Public Official Conflict of Interest Standard
resigned from the firm to work for the State, who is an objector in this specific analysis
Engineer A in his role as State employee
Governs Engineer A's conduct as a new State employee who previously stamped a report for a private client now adverse to the State, establishing obligations of impartiality and avoidance of exploiting prior private-sector work
What are Engineer A’s ethical obligations under the circumstances?
At what point in the court proceeding did Engineer A's conflict of interest become sufficiently concrete to trigger a disclosure obligation — upon accepting the State position, upon learning the State was an objector in this specific case, or earlier when the possibility of transitioning to the State was first contemplated?
Does Engineer A's co-stamping of the final document create any independent ethical obligations for the other employee who also stamped the report, and does that shared professional accountability alter Engineer A's own obligations in the proceeding?
Is the informal isolation implemented by Engineer A's current State employer ethically sufficient, or does the gravity of the cross-side employment transition require a formal, documented recusal protocol with enforceable boundaries to adequately protect the former client's interests?
Should Engineer A have sought explicit consent from the former private client before accepting employment with the State, given that the State was already an active objector in the specific water-rights proceeding in which Engineer A had stamped work product?
Does Engineer A's ongoing professional accountability for the stamped water-rights analysis — which may require him to defend or clarify that work — conflict with the former client adversarial participation prohibition that bars him from taking any active role in a proceeding where the State opposes that same client?
Does the faithful agent duty Engineer A owes to his current State employer — which might reasonably expect access to his full technical expertise in water-rights matters — conflict with the confidentiality obligation he retains toward his former private employer and client whose proprietary analytical methods and litigation strategy are embedded in the stamped report?
Does the objectivity obligation that governs Engineer A's professional conduct in an adversarial proceeding — requiring impartial technical judgment — conflict with the loyalty principle that demands ongoing fidelity to the former employer and client whose analysis Engineer A stamped, particularly if neutral technical review of that analysis would reveal weaknesses?
Does the conflict of interest recusal principle — which isolates Engineer A from the State's case to protect the former client — conflict with the dual role appearance of impropriety principle, in that Engineer A's mere presence within the State agency as a water-rights expert who stamped the opposing analysis may itself create an appearance of impropriety that isolation alone cannot cure?
From a deontological perspective, does Engineer A's duty as a faithful agent to his former private client create an absolute prohibition against any participation—direct or indirect—in the State's adversarial case, regardless of whether his isolation is formally implemented by his current employer?
From a consequentialist perspective, does the State's formal isolation of Engineer A adequately prevent harm to the integrity of the water-rights adjudication process, or does the mere fact of Engineer A's employment on the opposing side produce systemic damage to public trust in engineering expertise that isolation cannot remedy?
From a virtue ethics perspective, does Engineer A demonstrate genuine professional integrity by voluntarily electing isolation and expressing willingness to stand behind his stamped work, or does accepting employment with an adversarial party in an active proceeding—regardless of subsequent recusal—reflect a failure of the practical wisdom expected of a licensed engineer?
From a deontological perspective, does Engineer A's ongoing accountability for the stamped water-rights analysis create a positive duty to affirmatively correct or clarify that document if errors are later identified during the adversarial proceeding, even when doing so might incidentally benefit the State—his current employer and the opposing party?
Would the conflict of interest have been avoided entirely if Engineer A had disclosed his pending employment transition to the State before completing and stamping the water-rights analysis in Step 2, allowing the private firm and client to reassign the work to an engineer without a prospective adverse relationship?
If the State had not implemented formal isolation and instead assigned Engineer A to duties that required him to review or advise on technical aspects of the water-rights objection, would Engineer A have been obligated to refuse those assignments and, if refused, to resign from the State position rather than participate adversarially against his former client?
If the former private client had provided informed consent to Engineer A's participation in the State's case—analogous to the consent mechanism discussed in BER Case No. 98-4—would Engineer A's ethical obligations have been fully satisfied, or do the unique features of a stamped engineering document in an active court proceeding impose non-waivable constraints that consent cannot override?
Had Engineer A joined the State before completing the water-rights analysis rather than after stamping it, would the ethical analysis change materially—specifically, would the absence of a stamped document eliminate the ongoing professional accountability obligation, or would the cross-side employment transition alone be sufficient to trigger the same conflict-of-interest constraints?
Refraining from Disclosing Confidential Information
Demonstrates professional integrity but may be perceived as a limitation on Engineer A's usefulness to the State
Limits the State's ability to benefit from Engineer A's insider knowledge of the opposing party's technical approach
May create tension with Engineer A's duty of loyalty to his current employer, the State
Duty to protect the intellectual property and strategic interests of the former private firm and its client
NSPE Code obligation not to disclose confidential information concerning business affairs or technical processes of a former employer or client without consent
Obligation to maintain the integrity of the court process by not enabling improper use of insider knowledge
Engineers shall not disclose, without consent, confidential information concerning the business affairs or technical processes of any present or former client or employer (NSPE Code)
Integrity and honesty in professional dealings
Protection of public trust in engineering as a profession
Honor post-employment confidentiality obligations to the former private firm and its client by ensuring that proprietary technical processes, business strategies, and case-specific information learned during prior employment are not shared with the State as adversary
Ethical discipline to refrain from sharing information that could benefit current employer
Judgment to identify what information is confidential vs. publicly available
Knowledge of NSPE Code confidentiality provisions and their post-employment applicability
Ongoing from the moment of joining the State through the duration of the court proceedings
Engineer A decided not to disclose confidential technical processes or business affairs of the former private employer and client to the State, despite his new employment with the State as an objector in the same proceeding. This ongoing decision reflects Engineer A's recognition of his post-employment confidentiality obligations.
Licensed Engineer, transitioning from Private Firm to State employment
Creates a direct conflict of interest by joining an objector in the same proceeding where Engineer A stamped documents for the opposing party
Places Engineer A in a position where his specialized knowledge of the case becomes an ethical liability rather than an asset
Triggers confidentiality and loyalty obligations to the former employer and client that persist post-resignation
Engineer's right to professional autonomy and career advancement
Avoiding representation of adversary interests in proceedings where specialized knowledge was gained on behalf of a former client (NSPE Code)
Disclosure of conflicts of interest to all affected parties
Advance Engineer A's career by accepting a position with the State
General duty to disclose known or potential conflicts of interest upon becoming aware of them
Potential violation of duty not to place oneself in a position adverse to a former client's interests in the same specific proceeding without consent (NSPE Code)
Risk of compromising confidentiality obligations to former employer and client by proximity to the adversarial party
Knowledge of professional ethics obligations upon changing employers
Self-assessment of conflict-of-interest implications
Understanding of water-rights court process and the State's adversarial role
After completing step 2, before steps 3-5 of the court process commenced or concluded
Engineer A voluntarily resigned from the private engineering firm after completing step 2 of the water-rights proceeding, choosing to accept employment with the State, which is an active objector in the very same case. This decision created the foundational conflict-of-interest situation analyzed throughout the case.
State government ethics regulations; professional engineering norms
Revolving Door Employment Policy (Private Firm to State Agency)
Addresses the ethical and legal constraints on Engineer A's transition from a private engineering firm to the State agency that is an objector in the very case Engineer A worked on, governing permissible conduct in subsequent proceedings
Revolving Door Transition Ethics — Engineer A Private to State Employment
Engineer A transitioned from private firm employment on the applicant side to State employment on the objector side of the same active water-rights court proceeding, triggering revolving door ethics concerns
Engineer A's transition from the private engineering firm (serving the water-rights applicant) to the State agency (serving as objector in the same proceeding) implicates revolving door ethics constraints requiring that he not exploit his prior private-sector position to benefit or disadvantage either party, and that appropriate isolation measures be implemented to preserve the integrity of both the proceeding and his new public employment.
NSPE Code of Ethics — Purity of enterprise and conflict of interest provisions; Revolving-Door-Employment-Policy-WaterRights
From the date of employment transition through the conclusion of the water-rights proceeding
Stamped Document Adversarial Non-Weaponization — Engineer A Water Rights Analysis
Engineer A co-stamped the analysis for the private client; his transition to the State creates a specific risk that his insider knowledge of the document will be exploited adversarially against the former client
Stamped Document Author Adversarial Non-Weaponization Constraint
Engineer A is prohibited from allowing his co-authorship of and insider knowledge about the water-rights analysis to be weaponized by the State against the former private client, including by briefing State counsel on the document's weaknesses, identifying exploitable gaps in the analysis, or otherwise converting his professional accountability for the stamped work into an adversarial instrument against the client for whom it was prepared.
NSPE Code of Ethics — Faithful Agent, Conflict of Interest, and Confidentiality provisions
Engineer A feels that he can and should support the work he performed
Creates an ongoing professional obligation to stand behind the stamped work through subsequent court proceedings
Establishes a permanent record of Engineer A's professional involvement in this specific proceeding
Duty to provide technically competent engineering support for the client's application
Obligation to act as faithful agent and trustee to the private firm's client
Professional responsibility to certify only work personally reviewed and approved
Engineer as faithful agent and trustee (NSPE Code Section II.4)
Professional competence and integrity in certification
Public safety and accuracy in documents entering the court record
Formally certify the completed water-rights analysis as professionally sound and legally defensible, enabling the client to advance the court process
Knowledge of terms and conditions for future water use
Professional licensure in relevant jurisdiction
After completing step 2 (engineering support), prior to resignation
Engineer A and a colleague affixed their professional stamps to the final water-rights analysis document, formally certifying the work completed through step 2 of the court process. This act constituted an explicit assumption of professional responsibility for the accuracy and integrity of the analysis.
Stamping Final Analysis Document (Action 1) → Conflict of Interest Materializes (Event 3)
Engineer A and a colleague affixed their professional stamps to the final water-rights analysis document, creating a professional record of authorship that later became the basis for the conflict when Engineer A joined the opposing State agency.
Stamping Final Analysis Document (Action 1)
Without the professional stamp, Engineer A's prior involvement would be less formally documented and the conflict might not have triggered the same ethical obligations; without the State employment, no conflict would arise at all
Engineer A's professional stamp affixed to the document
Engineer A's subsequent employment with the State as an active objector
The water-rights proceeding remaining active and ongoing
Stamped professional authorship + transition to opposing employer + active proceeding = conflict of interest materializes
State Litigation Strategy Confidentiality — Engineer A Current Employer Obligation
Engineer A's organizational isolation from the State's case serves the dual purpose of preventing him from participating adversarially and preventing inadvertent disclosure of State strategy to the former private client
Current Employer Adversarial Strategy Confidentiality Constraint
Engineer A is constrained from accessing, disclosing, or transmitting the State's litigation strategy, internal technical assessments, or legal positions in the water-rights proceeding to any external party, including his former private employer or the private client, as a condition of his faithful agent duty to his current employer.
NSPE Code of Ethics Section II.4 — Faithful Agent and Trustee; Confidentiality provisions
Throughout Engineer A's employment with the State and for the duration of the water-rights proceeding
{'sector': 'Public', 'typical_role': 'Objector in most water-rights cases', 'conflict_management': 'Isolated Engineer A from the case'}
The State is the formal objector in the water-rights court proceeding and is also Engineer A's current employer. Engineer A has been isolated from the State's case to manage the conflict of interest arising from his prior work on the application.
{'type': 'adversarial_party', 'target': 'Water Rights Analysis Client'}
{'type': 'employer', 'target': 'Engineer A Private-to-Public Transitioning Engineer'}
resigned from the firm to work for the State, who is an objector in this specific analysis (the State is typically an objector in most cases)
Engineer A has formally contributed substantive engineering work to an adversarial proceeding; a professional and legal record now exists tying Engineer A to the private client's position
Prior to or concurrent with Engineer A's resignation
Engineer A completed the application support (Step 1) and engineering analysis support (Step 2) for the private firm's client in the water-rights proceeding. This outcome marks the formal conclusion of Engineer A's active technical contribution to the case while employed at the private firm.
Temporal Recency Conflict Weight — Engineer A Recent Transition Water Rights
Engineer A resigned mid-project (after step 2 of a 5-step process) to join the opposing party, making this a maximally recent transition with no temporal buffer to mitigate the conflict
Temporal Recency Conflict Assessment Constraint
Because Engineer A's transition from the private firm to the State occurred while the water-rights proceeding was actively ongoing (he completed only step 2 before resigning), the temporal proximity of the transition carries maximum ethical weight, requiring the most stringent form of recusal and isolation rather than any lesser mitigation measure.
NSPE Code of Ethics — Conflict of Interest provisions; Temporal Recency Conflict Assessment Constraint
Assessed at the time of employment transition and throughout the active proceeding
he is concerned about the remaining steps in the court process
the court process takes years to complete
Transitional Employment Ethics Framework
Provides the overarching ethical decision framework for Engineer A's obligations and constraints when transitioning from the private firm to the State, including conflict of interest management, permissible support of prior work, and isolation protocols
State Water Rights Court Adjudication Process
Water Rights Adjudication Legal Framework
Typically, the court process takes years to complete and, in short, it includes the following steps: Application (proposal) Engineering to support application Objections from the public/other water users Rebuttal of objector's comments Mediation or trial
Engineer A; the firm; the State as objector; local courts
Defines the multi-stage legal process (application, engineering support, objections, rebuttal, mediation/trial) within which Engineer A's professional obligations arise after transitioning to the State
A legally structured, adversarial engineering context is established; the State is formally positioned as an objector; the proceeding's multi-year timeline is set in motion
Before Engineer A's involvement; pre-case background
A formal water-rights proceeding was commenced, triggering a multi-step, multi-year legal and engineering process involving multiple parties including the State as an objector. This exogenous event established the adversarial context in which all subsequent professional obligations arose.
A formal water-rights proceeding was commenced, triggering a multi-step, multi-year legal and engineering process that required Engineer A to complete application support (Step 1) and engineering analysis support (Step 2) on behalf of the private firm.
Water-Rights Proceeding Initiated (Event 1)
Without the water-rights proceeding being initiated, there would be no engineering analysis to perform, no document to stamp, and no subsequent conflict, the proceeding is the foundational triggering event for the entire causal chain
Steps 1–2 Completed by Engineer A (Event 2)
Engineer A's assignment to and acceptance of the work
Formal initiation of the water-rights proceeding
Private firm's need for engineering analysis support
Private engineering firm (assignment); Engineer A (execution)
Proceeding initiation + firm assignment + Engineer A's professional execution = completion of Steps 1 and 2
Water-Rights Proceeding Initiated (Event 1) → Steps 1–2 Completed by Engineer A (Event 2)
{'sector': 'Private (implied)', 'proceeding_role': 'Applicant in water-rights court process'}
The client hired the private engineering firm to complete a water-rights analysis, initiating the multi-step court process. The client's application is now subject to objection by the State, which employs Engineer A.
{'type': 'adversarial_party', 'target': 'State Objector Agency'}
{'type': 'service_provider', 'target': 'Private Engineering Firm'}
co-stamping of the final document before Engineer A's resignation from the private firm
Engineer A, along with one other employee at the firm, stamped the final document... Engineer A worked on the project through step No. 2 and resigned from the firm
completion of steps 1 and 2 before steps 3-5 (objections, rebuttal, mediation/trial)
Engineer A worked on the project through step No. 2 and resigned from the firm to work for the State... he is concerned about the remaining steps in the court process
steps 3-5 (objections, rebuttal, mediation/trial)
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.92
The appearance of impropriety requires recusal and reassignment regardless of Engineer A's actual intent or technical competence
Defeasibility edge from constraintstatement
source_field=constraintstatement; confidence=0.89
The State is constrained to assign Engineer A to other duties and maintain his formal organizational isolation from the water-rights proceeding, and Engineer A is constrained to comply with and respect that isolation arrangement — because Engineer A's dual role as former technical author of the contested analysis and current State employee creates an appearance of compromised impartiality that could be called into question by parties, the public, and the media, and that cannot be mitigated by disclosure alone.
source_field=tensionresolution; confidence=0.91
source_field=tensionresolution; confidence=0.97
The confidentiality and specialized knowledge obligations to the former client override the current employer loyalty obligation; Engineer A should be assigned other duties rather than participate in the State's case
source_field=tensionresolution; confidence=0.96
Disclosure manages most conflicts; recusal is reserved for cases involving specialized knowledge in specific adversarial proceedings where consent cannot be obtained
source_field=tensionresolution; confidence=0.95
The ongoing accountability for stamped work is acknowledged but constrained by the conflict of interest arising from the private-to-public transition; Engineer A may stand behind the technical integrity of the work but cannot participate in the adversarial proceeding
source_field=tensionresolution; confidence=0.88
The institutional isolation arrangement satisfies the recusal obligation by removing Engineer A from the State's case entirely, while leaving open the question of whether he may separately defend the technical integrity of his stamped work if called upon in appropriate proceedings
source_field=tensionresolution; confidence=0.94
source_field=tensionresolution; confidence=0.9
Institutional isolation resolves the tension by ensuring Engineer A has no access to the State's confidential litigation information, thereby eliminating the risk of improper disclosure in either direction
source_field=tensionresolution; confidence=0.87
The engineer's role as objective technical expert takes precedence over any expectation of partisan loyalty; the adversarial legal context does not transform the engineer into an advocate
Confidentiality to former client prevails; Engineer A remains silent and is assigned other duties rather than disclosing confidential information to benefit the State
Loyalty to former client and employer prevails over current employer's interest in Engineer A's participation; Engineer A is assigned other duties
source_field=tensionresolution; confidence=0.93
Loyalty to current employer is primary but bounded: Engineer A must not act against the State's interests in the proceeding, but may defend the technical integrity of his prior work if called upon in a forum that does not require him to act as an advocate against the State
source_field=constraintstatement; confidence=0.95
Engineer A is absolutely barred from disclosing confidential information, participating in, or representing the State's interest in the water-rights court proceeding unless and until he obtains the permission and consent of both his former private firm employer and the private water-rights applicant client — consent that is highly unlikely to be granted given the adversarial nature of the proceeding.
source_field=constraintstatement; confidence=0.88
In BER 98-4, the consent prerequisite constraint was not triggered because Engineer A's sequential adverse service to ABC Manufacturing and the adverse plaintiff involved entirely unrelated matters — the specialized-knowledge-gained-on-behalf-of condition was not satisfied, making the consent requirement inapplicable and the adverse service permissible.
Recusal and reassignment resolve the conflict; Engineer A is isolated from the State's water rights case and assigned other duties
Engineer A must correctly apply the non-absolute loyalty principle — recognizing that while faithful agent status does not create perpetual absolute loyalty in unrelated matters (BER 98-4), the water-rights proceeding is directly related to the specialized knowledge he gained while employed by the private firm, triggering the consent prerequisite constraint and overriding the non-absolute loyalty principle's permissive scope.
source_field=interpretation; confidence=0.88
Loyalty obligations to former clients and employers are not extinguished by change of employment; they persist and constrain the engineer's conduct in adversarial proceedings involving the former relationship
source_field=constraintstatement; confidence=0.94
source_field=interpretation; confidence=0.93
The specialized knowledge Engineer A acquired in performing and stamping the water-rights analysis creates a bar to adverse participation in the very proceeding that analysis was prepared for, regardless of Engineer A's current employment by the State
Engineer A's instinct to support the stamped work is professionally sound in principle; the resolution lies in limiting that support to technically appropriate forums (e.g., if called as a fact witness about what the analysis showed) rather than volunteering as an advocate against his current employer
source_field=constraintstatement; confidence=0.91
Engineer A is prohibited from actively participating in the water-rights court proceeding on behalf of the State (his current employer) because he previously performed and stamped the engineering analysis that is the subject of the proceeding while employed by the opposing private firm, creating an irresolvable conflict of interest that bars participation regardless of his desire to support his prior work.
source_field=tensionresolution; confidence=0.89
The institutional isolation arrangement adopted by Engineer A's current employer represents a reasonable structural resolution: it protects the State's litigation integrity while preserving Engineer A's right to account for his prior technical work in appropriate contexts
source_field=interpretation; confidence=0.9
Engineer A's professional seal represents a personal attestation of technical adequacy; abandoning or repudiating that work solely because of changed employment circumstances would violate the integrity of the sealing function — but the accountability must be exercised within conflict-of-interest constraints
Engineer A retains ongoing professional accountability for the technical integrity of the water-rights analysis he co-stamped and may not disavow or abandon that work solely because of his subsequent employment transition, but must exercise this accountability in a manner consistent with his conflict of interest recusal obligations — meaning he may acknowledge responsibility for the work but may not participate in the adversarial proceeding to defend it.
Accountability for the technical work is satisfied by Engineer A's willingness to explain and defend the analysis on its technical merits; it does not extend to adversarial advocacy that would conflict with his duties to his current employer
historical engineering code requiring avoidance of all conflicts of interest before revised engineering code requiring disclosure of conflicts of interest
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
historical engineering code requiring avoidance of all conflicts of interest
revised engineering code requiring disclosure of conflicts of interest
Engineer A's sequential service to ABC Manufacturing (patent litigation), then to an adverse plaintiff (product liability), then again to ABC Manufacturing (different patent litigation) was held not to violate the NSPE Code because engineer
The Board affirms that engineers serving as expert witnesses must render objective technical opinions based on technical assessment rather than partisan loyalty to the retaining party, distinguishing the engineering expert role from the att
The NSPE Board rejected the attorney's implication that Engineer A acted improperly by serving adverse parties, distinguishing the engineering expert witness role from the attorney advocate role and affirming that engineers are not expected
The Board's discussion traces the profession's evolution from absolute conflict avoidance to disclosure-and-management, contextualizing both the BER 98-4 analysis and the current case within the modern disclosure standard
Engineer A's current employer (the State) has isolated him from the water-rights case in which his prior stamped work is the subject of the State's objection, implementing a structural recusal to prevent his prior private-client relationshi
Engineer A's transition from the private firm (which performed the water-rights analysis for the client) to the State (which is the formal objector in the water-rights proceeding) creates a conflict of interest requiring recusal from the St
Engineer A's transition from the private firm that stamped the water-rights analysis to the State agency that is the formal objector in that same proceeding creates a direct conflict of interest requiring disclosure, institutional isolation
Engineer A is prohibited from disclosing confidential information concerning the business affairs or technical processes of his former private firm employer or the water-rights client without their consent, even in his capacity as a state e
Engineer A faces competing loyalty obligations: a residual professional loyalty to the former private client whose analysis he stamped, and a current employment loyalty to the State as his new employer — the two loyalties are in direct tens
Engineer A's simultaneous status as former technical contributor to the water-rights analysis (stamped on behalf of private client) and current employee of the State (adversarial objector) creates an appearance of impropriety that could com
Engineer A cannot participate in or represent the State's interest in the water rights proceeding because he gained particular specialized knowledge about the water-rights analysis on behalf of the private client while employed at the priva
Engineer A retains ongoing loyalty obligations to both his former private firm employer and the water-rights client, requiring him to refrain from acting adversely to their interests in the water rights proceeding even though he is now empl
If Engineer A were to participate in any aspect of the water-rights proceeding — whether defending his prior stamped work or otherwise — he would be required to maintain objectivity grounded in the technical facts of the analysis rather tha
Engineer A's professional accountability for the stamped water-rights analysis persists after his departure from the private firm; he cannot disclaim responsibility for the technical conclusions in the report merely because he has changed e
Engineer A's stamping of the water-rights analysis report creates a continuing professional accountability for the technical integrity of that document, which he recognizes by asserting that he 'can and should support the work he performed'
Engineer A's stamping of the water-rights analysis report creates continuing professional accountability for its technical integrity, which persists after his departure from the private firm and survives his transition to state employment —
Engineer A correctly recognized that her faithful agent duty to ABC Manufacturing did not create an absolute perpetual loyalty obligation preventing her from subsequently serving an adverse party in an unrelated matter, preserving her profe
In BER 98-4, Engineer A's sequential service to ABC Manufacturing and then to an adverse plaintiff was permissible because the matters were unrelated and did not involve specialized knowledge gained from the former client — distinguishing t
As a State employee, Engineer A is obligated not to share the State's litigation strategy, internal technical assessments, or confidential information about the State's objection with the former private client or its representatives — even
Engineer A must correctly distinguish between the non-absolute loyalty principle (which would permit adverse service in unrelated matters) and the consent-prerequisite rule (which prohibits participation in this specific proceeding involvin
Engineer A, as an expert witness in patent and product liability litigation, was obligated to render objective technical opinions as an assistant to the trier of fact rather than as a partisan advocate, and was not subject to the institutio
Engineer A retains ongoing loyalty obligations to both his former private firm employer and the water-rights client, requiring him to refrain from disclosing confidential information and from participating in the State's adversarial proceed
Engineer A is obligated to refrain from actively participating in the water-rights court proceeding on behalf of either the former private client or the State, given that his transition from the private firm to the State — an adversarial pa
Engineer A is obligated to act as a faithful agent to his current employer (the State) by respecting the isolation arrangement imposed by the State, not taking actions that would undermine the State's legal position, and not using his State
Engineer A's professional seal on the water-rights analysis creates a continuing accountability for the technical integrity of that document that persists after his departure from the private firm and his transition to State employment.
Engineer A is obligated to maintain ongoing professional accountability for the technical integrity of the water-rights analysis he stamped, and may not disclaim or disavow that work without technical basis, even after departing the private
Engineer A is obligated to refrain from participating in or representing the State's interest in the water-rights proceeding unless and until he obtains the informed consent of both his former private firm employer and the water-rights clie
Engineers are obligated to apply the current evolved standard of conflict-of-interest management — prompt disclosure to employers and clients of all known or potential conflicts — rather than the outdated absolute-avoidance standard, recogn
Engineer A is obligated to refrain from participating on either side of the water-rights proceeding — neither representing the State's interest nor defending the former client's position — because his transition from the private firm to the
Engineer A is obligated to recuse himself from any involvement in the State's adversarial case against the former private client's water-rights application, given that he stamped the analysis that is the subject of the State's objection and
As a State employee, Engineer A is obligated not to share the State's litigation strategy, internal technical assessments, or confidential deliberations regarding the water-rights proceeding with his former private firm employer or the wate
Engineer A is obligated to honor residual loyalty to his former private client by refraining from participating in the State's adversarial case against that client's water-rights application, and by not disclosing any confidential informati
Cross-Side Employment Participation Bar — Engineer A Water Rights Proceeding
Engineer A transitioned from the private firm (applicant side) to the State (objector side) after completing step 2 of the multi-stage water-rights court process, creating a cross-side employment conflict in the same active proceeding
Cross-Side Employment Adversarial Participation Prohibition Constraint
NSPE Code of Ethics — Conflict of Interest provisions; BER Case No. 98-4
For the duration of the active water-rights court proceeding (steps 3–5: objections, rebuttal, mediation/trial)
Dual Employment Appearance of Impropriety Isolation — Engineer A State Water Rights Case
Engineer A co-stamped the water-rights analysis now at issue in the court proceeding; he now works for the opposing State agency; his dual role creates multi-party appearance concerns requiring employer-implemented structural isolation.
Dual Employment Appearance of Impropriety Isolation Constraint
NSPE Code of Ethics conflict of interest and faithful agent provisions; principle that appearance of impropriety must be managed through structural isolation
Engineer A should be assigned other duties by the state, remain isolated from the State's water rights case involving Engineer A's former employer and its client—and the state should recognize and respect Engineer A's ethical obligations in this matter.
Throughout the duration of the active water-rights court proceeding
Any involvement by Engineer A in the state's case could potentially compromise the interests of all parties—the former employer, the private client, and the state—as Engineer A's dual role and his professional opinion/judgment—as an employee of the private firm and now as a state employee—could be called into question—by one of the parties, the public, the media, etc.
By refraining from becoming involved in this matter for the state, Engineer A is not 'representing the client' (as the facts suggest) or providing any services to the client. Engineer A is merely remaining silent.
Former Client Adversarial Consent Prerequisite — BER 98-4 Permissibility Boundary
Engineer A served ABC Manufacturing in patent litigation, then served an adverse plaintiff in unrelated product liability litigation, then served ABC Manufacturing again in a different patent matter — opposing counsel implied impropriety but the Board found no violation because the matters were unrelated.
Former Client Adversarial Proceeding Consent Prerequisite Constraint
NSPE Code of Ethics Section III.4; BER Case No. 98-4
Duration of each sequential engagement in the patent and product liability matters
Former Client Adversarial Consent Prerequisite — Engineer A Water Rights Proceeding
Engineer A co-stamped a water-rights analysis for a private firm's client; he subsequently joined the State agency that is an objector in the same multi-step court proceeding; the State seeks to use his specialized knowledge of the analysis against the former client.
NSPE Code of Ethics Section III.4 — confidentiality and adverse interest provisions; BER Case No. 98-4 precedent
Throughout the duration of the active water-rights court proceeding, including all remaining steps (objections, rebuttal, mediation, trial)
In light of the facts and circumstances, it is doubtful that such permission/consent would be granted by either party.
Stamped Document Non-Abandonment — Engineer A Water Rights Analysis
Engineer A co-stamped the water-rights analysis and feels he should support the work, but his cross-side employment creates a constraint on how that support may be rendered
Stamped Document Ongoing Technical Accountability Non-Abandonment Constraint
NSPE Code of Ethics — Responsible Charge and Seal provisions; Engineer Stamped Document Responsibility Standard
Ongoing, for the life of the stamped document and the active proceeding
BER 98-4 Engineer A Sequential Adverse Representation
From Engineer A's second engagement (plaintiff adverse to ABC Manufacturing) through the cross-examination challenge at trial in the third engagement
Opposing counsel who raised the implication of impropriety
Engineer A was retained by ABC Manufacturing for the purpose of reviewing documents to form an opinion in a patent litigation matter
Sequential Adverse Representation in Unrelated Matters State
Engineer A's sequential expert engagements for ABC Manufacturing and adverse plaintiff across unrelated patent and product liability matters
Board determination that the sequential representation did not constitute a prohibited conflict of interest under NSPE Code
Engineer A was again retained by ABC Manufacturing in a different patent litigation matter not related to either of the preceding events
opposing counsel questioned 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
the Board noted that it does not believe the facts rose to the level of a conflict of interest prohibited by the NSPE Code
Engineer A's acceptance of retention by Attorney X representing a plaintiff adverse to ABC Manufacturing in a product liability matter, following prior patent litigation work for ABC Manufacturing
BER 98-4 Engineer Expert Non-Advocate Independence
Throughout Engineer A's expert engagements in adversarial proceedings, particularly during cross-examination when the advocacy-analogy challenge was raised
unlike attorneys, they are not advocates in rendering their professional services, and thus they should not be expected to compromise their professional independence and autonomy
Engineer Non-Advocate Expert Independence State
Engineer A's professional role as expert witness in adversarial patent and product liability proceedings, where opposing counsel implied impropriety by analogy to attorney advocacy norms
Board's clarification that engineers are not advocates and are not bound by attorney-style loyalty constraints
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
the engineer's role as an expert witness in a litigation matter is to assist the trier of fact
Opposing counsel's cross-examination implying Engineer A acted improperly by drawing a parallel to the institutionalized plaintiff's bar and defense bar in the legal profession
Engineer A Adversarial Proceeding Fact Polarization
Throughout the remaining adversarial stages of the court proceeding (objections, rebuttal, mediation/trial)
Objections from the public/other water users
Adversarial Proceeding Fact Polarization State
The adversarial structure of the water-rights court proceeding, which creates pressure on all technical participants — including Engineer A — to frame technical facts according to their employing party's interests
Final court judgment or mediated settlement
Engineer A worked on the project through step No. 2 and resigned from the firm to work for the State, who is an objector
Entry of the water-rights proceeding into the objection and rebuttal stages, with the State as a formal objector
Engineer A Insider Knowledge of Opposing Analysis
From Engineer A's transition to State employment, persisting throughout the remaining court stages
Engineer A's detailed insider knowledge of the water-rights analysis he performed and co-stamped, now held while employed by the opposing party (the State)
Engineer A, along with one other employee at the firm, stamped the final document
Engineer A's deep participation in and co-stamping of the water-rights analysis, followed by transition to employment with the objecting State
Engineer A Mandatory Silence and Isolation — State Water Rights Case
From Engineer A's transition to state employment through the duration of the water rights proceeding
Mandatory Silence and Isolation Compliance State
Engineer A's ethical compliance posture of remaining silent and isolated from the state's water rights proceeding, with the state obligated to assign Engineer A to other duties
Consent of all interested parties, conclusion of the proceeding, or Engineer A's departure from state employment
Any involvement by Engineer A in the state's case could potentially compromise the interests of all parties
Engineer A should be assigned other duties by the state, remain isolated from the State's water rights case involving Engineer A's former employer and its client
the state should recognize and respect Engineer A's ethical obligations in this matter
Determination that Engineer A cannot participate in the state's water rights case without consent of former employer and client, combined with the unlikelihood of such consent being granted
Engineer A Private-to-Public Transitioning Engineer
{'license': 'Professional Engineer (implied by stamping authority)', 'specialty': 'Water rights engineering', 'transition_direction': 'Private to public sector', 'isolation_status': "Isolated from the State's case in the matter"}
Engineer A transitioned from a private engineering firm where he stamped a water-rights analysis to the State, which is the formal objector in the same proceeding. He has been isolated from the State's case and his current position does not include opposing this or other cases, but he is concerned about his obligations regarding the remaining steps in the court process.
{'type': 'adversarial_party', 'target': 'Original Client of Water-Rights Analysis'}
{'type': 'current_employer', 'target': 'State Objector Agency'}
{'type': 'former_employer', 'target': 'Private Engineering Firm'}
Private-to-Public Transitioning Engineer
Engineer A Stamped Document Author in Active Proceeding
From the stamping of the final document through all remaining stages of the court proceeding
Stamped Document Author in Active Adversarial Proceeding State
Engineer A's professional responsibility for the co-stamped water-rights analysis document that is now the subject of an ongoing adversarial court proceeding
Final court judgment on the water-rights application
Engineer A co-stamping the final water-rights analysis document, combined with the document entering the adversarial court process and Engineer A transitioning to the opposing side
Non-Absolute Former Client Loyalty — Engineer A Water Rights Proceeding Distinction
Engineer A must distinguish between the non-absolute loyalty principle (permitting adverse service in unrelated matters) and the specialized-knowledge consent requirement (barring adverse participation in directly related matters) — the water-rights proceeding falls in the latter category.
NSPE Code Section II.4; BER Case No. 98-4 (distinguished); NSPE Code Section III.4
Turning to the facts in the case Engineer A clearly has an ongoing duty to honor his obligations both to his former employer and the private client.
Objectivity Obligation — Engineer A in Adversarial Water Rights Proceeding
Stamped Document Ongoing Professional Accountability
If Engineer A were to participate in any aspect of the water-rights proceeding — whether defending his prior stamped work or otherwise — he would be required to maintain objectivity grounded in the technical facts of the analysis rather than advocacy for either the former private client or the State
Objectivity requires that Engineer A's defense of his prior work be grounded in genuine technical assessment of what the analysis showed and whether it was methodologically sound — not in loyalty to the former client or in desire to protect his professional reputation at the expense of accurate technical disclosure
Objectivity and accountability are complementary here: Engineer A should support the stamped work only to the extent that it is technically defensible on its merits, and should acknowledge any limitations or errors if they exist
State Litigation Strategy Confidentiality — Engineer A Current Employer
As a State employee, Engineer A has been isolated from the State's case. However, his knowledge of the State's internal workings and any incidental awareness of the State's litigation posture must be kept confidential from the adverse party (his former client).
Current Employer Litigation Strategy Confidentiality Obligation
Engineer A is obligated to protect the State's litigation strategy, internal technical assessments, and legal positions in the water-rights proceeding from disclosure to the former private client, the private firm, or their counsel, notwithstanding his personal and professional connections to the prior work.
For the duration of the water-rights court proceeding and thereafter as required by applicable law
Water-Rights Court Proceeding Active State
From the initial application filing through the final court judgment, spanning multiple years
These types of analyses quantify water and provide terms and conditions for future use that must be approved by the local courts
Multi-Stage Court Proceeding Active State
The ongoing multi-step water-rights court process in which the engineering analysis is embedded, currently past step 2 with steps 3-5 (objections, rebuttal, mediation/trial) remaining
Final court approval or rejection of the water-rights application
Engineer A worked on the project through step No. 2
Typically, the court process takes years to complete
it includes the following steps: Application, Engineering to support application, Objections from the public/other water users, Rebuttal of objector's comments, Mediation or trial
Filing of the water-rights application initiating the formal court process
Non-Absolute Former Client Loyalty Boundary — Engineer A BER 98-4 Sequential Adverse Service
Engineer A served ABC Manufacturing in patent litigation, then served an adverse plaintiff in unrelated product liability litigation, then served ABC Manufacturing again. The Board affirmed this was ethically permissible.
Non-Absolute Former Client Loyalty Boundary Obligation
Engineer A correctly recognized that her faithful agent duty to ABC Manufacturing did not create an absolute perpetual loyalty obligation preventing her from subsequently serving an adverse party in an unrelated matter, preserving her professional autonomy and independence.
At each point of accepting a new engagement following prior client service
Conflict of Interest Disclosure Evolution Compliance — Engineering Profession Historical Context
The Board traces the evolution of conflict-of-interest standards from absolute avoidance to disclosure-and-management as background for analyzing Engineer A's situation.
Engineers generally; Engineer A specifically
Conflict of Interest Disclosure Evolution Compliance Obligation
Engineers are obligated to apply the current evolved standard of conflict-of-interest management — prompt disclosure to employers and clients of all known or potential conflicts — rather than the outdated absolute-avoidance standard, recognizing that the profession has evolved its approach to reflect the practical realities of engineering practice.
Ongoing; applicable to all conflict-of-interest situations in current engineering practice
over time, the engineering profession came to the general conclusion that by the very nature of the engineer's role in society, conflicts of interests were virtually an immutable fact of professional engineering practice
Engineer A Conflict of Interest — Cross-Side Employment
From Engineer A's transition to State employment through the conclusion of the court proceeding
Engineer A's professional situation in which his prior obligations to the private firm's client and his current employment with the opposing State create competing professional interests in the same active proceeding
Engineer A accepting employment with the State while the water-rights proceeding in which he performed work for the opposing side remains active
Engineer A Cross-Side Employment Transition
From the moment Engineer A resigned from the private firm and began employment with the State, persisting throughout the remaining stages of the court proceeding
Private engineering firm (former employer)
The State (current employer and objector)
Engineer A's transition from private firm (applicant side) to the State (objector side) in the same active water-rights court proceeding
Conclusion of the water-rights court proceeding or Engineer A's departure from State employment
the State is typically an objector in most cases
Engineer A's resignation from the private engineering firm and commencement of employment with the State, which is a formal objector in the same water-rights proceeding
Engineer A Cross-Side Employment Transition — Water Rights Proceeding
From Engineer A's commencement of state employment through the duration of the water rights proceeding
Engineer A clearly has an ongoing duty to honor his obligations both to his former employer and the private client
Engineer A's transition from private firm employment (serving the private client in the water rights matter) to state employment (where the state is an opposing party in the same water rights proceeding)
Conclusion of the water rights proceeding or Engineer A's departure from state employment
Any involvement by Engineer A in the state's case could potentially compromise the interests of all parties—the former employer, the private client, and the state—as Engineer A's dual role and his professional opinion/judgment—as an employee of the private firm and now as a state employee—could be called into question
Engineer A cannot disclose, participate or represent the state's interest in connection with this proceeding
Engineer A accepting employment with the state while the water rights proceeding involving Engineer A's former employer and private client remains active
Former Client Adversarial Proceeding Consent Prerequisite — Engineer A BER 98-4 Multi-Party Litigation
Engineer A was retained by ABC Manufacturing for patent litigation, then by Attorney X for unrelated product liability litigation against ABC Manufacturing, then again by ABC Manufacturing for a different patent matter. The Board found no NSPE Code violation.
Former Client Adversarial Proceeding Consent Prerequisite Obligation
In BER 98-4, Engineer A's sequential service to ABC Manufacturing and then to an adverse plaintiff was permissible because the matters were unrelated and did not involve specialized knowledge gained from the former client — distinguishing the consent-prerequisite trigger from the general loyalty question.
Each engagement evaluated at time of retention
Objectivity Principle Invoked for Engineer Expert Witness Role
Patent litigation expert witness engagements
Product liability expert witness engagement
Faithful Agent Obligation Within Ethical Limits
The Board affirms that engineers serving as expert witnesses must render objective technical opinions based on technical assessment rather than partisan loyalty to the retaining party, distinguishing the engineering expert role from the attorney advocate role
Objectivity in adversarial proceedings requires that the engineer's technical opinions be grounded in technical facts rather than the retaining party's litigation interests, and that the engineer resist pressure to adopt partisan stances
Engineer A BER 98-4 Multi-Party Litigation Expert
the engineer's role as an expert witness in a litigation matter is to assist the trier of fact, which may be a judge or jury, in better understanding the technical complexities of the case
Objectivity as a professional virtue obligation takes precedence over client loyalty in expert witness contexts; the engineer serves the trier of fact, not the retaining party
engineers must analyze technical matters, weighing all appropriate considerations
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
Conflict of Interest Disclosure Evolution Principle Invoked in Case Discussion
Engineer A's private-to-public transition conflict
Engineer A's sequential adverse engagements in BER 98-4
NSPE Code conflict of interest provisions
The modern standard requires disclosure rather than absolute avoidance; however, disclosure is insufficient where the conflict involves specialized knowledge in a specific adversarial proceeding — in such cases, recusal remains required even under the evolved standard
Engineer A Current Case Private-to-Public Transitioning Engineer
Conflict of Interest Disclosure Evolution Principle
over time, the engineering profession came to the general conclusion that by the very nature of the engineer's role 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.
Conflict of Interest Recusal — Engineer A Isolated from State Case
State's objection proceedings in water-rights case
Engineer A's current employer (the State) has isolated him from the water-rights case in which his prior stamped work is the subject of the State's objection, implementing a structural recusal to prevent his prior private-client relationship from compromising the State's litigation position or creating an appearance of bias
The recusal obligation here runs in both directions: Engineer A should not participate in the State's adversarial strategy against his former client's analysis, and the State should not leverage Engineer A's insider knowledge of the private firm's work product
Engineer Non-Advocate Status Invoked Against Attorney Implication in BER 98-4
Attorney X cross-examination challenge to Engineer A's professional conduct
Expert witness role in patent and product liability litigation
The NSPE Board rejected the attorney's implication that Engineer A acted improperly by serving adverse parties, distinguishing the engineering expert witness role from the attorney advocate role and affirming that engineers are not expected to maintain plaintiff-bar or defense-bar allegiances
Engineers in adversarial proceedings serve as objective technical experts assisting the trier of fact, not as advocates for the retaining party; the institutionalized plaintiff/defense bar distinction of the legal profession does not apply to engineering
Engineer Non-Advocate Status in Adversarial Proceedings
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, and thus they should not be expected to compromise their professional independence and autonomy
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.
Expert Witness Engineering Non-Advocate Objectivity — Engineer A BER 98-4 Expert Role
Opposing counsel implied Engineer A acted improperly by serving both ABC Manufacturing and an adverse plaintiff, drawing a parallel to the legal profession's advocate structure. The Board rejected this characterization.
Expert Witness Engineering Non-Advocate Objectivity Obligation
Engineer A, as an expert witness in patent and product liability litigation, was obligated to render objective technical opinions as an assistant to the trier of fact rather than as a partisan advocate, and was not subject to the institutionalized plaintiff/defense bar structure applicable to attorneys.
Private-to-Public Employment Transition Conflict Obligation Invoked for Engineer A Water Rights
Former private firm employer's client water rights application
Engineer A's transition from the private firm (which performed the water-rights analysis for the client) to the State (which is the formal objector in the water-rights proceeding) creates a conflict of interest requiring recusal from the State's case and isolation from all aspects of the proceeding involving the former employer and client
The transition from private practice to public agency employment, where the agency is adversarially positioned against the engineer's former private work, requires recusal and reassignment — the engineer cannot use confidential knowledge of either party's position to benefit the other
Private-to-Public Employment Transition Conflict Obligation
Private-to-Public Transition Adversarial Proceeding Non-Participation — Engineer A Water Rights
Engineer A transitioned from the private firm (which performed the water-rights analysis) to the State (which is the formal objector). The State has isolated him from the case.
Private-to-Public Transition Adversarial Proceeding Non-Participation Obligation
Engineer A is obligated to refrain from participating on either side of the water-rights proceeding — neither representing the State's interest nor defending the former client's position — because his transition from the private firm to the State creates irreconcilable conflicts on both sides, and the appropriate resolution is complete non-participation enforced through formal isolation.
For the duration of the water-rights proceeding
Any involvement by Engineer A in the state's case could potentially compromise the interests of all parties.
Confidentiality Principle Invoked for Former Employer and Client Information
Water-rights analysis technical processes
Engineer A is prohibited from disclosing confidential information concerning the business affairs or technical processes of his former private firm employer or the water-rights client without their consent, even in his capacity as a state employee
Confidentiality obligations to former clients and employers survive the employment relationship and apply even when the engineer's current employer is an adversarial party in proceedings involving that former client's work
Engineer A Formal Recusal from State's Case
From the commencement of Engineer A's employment with the State, persisting throughout the remaining stages of the court proceeding
State legal/technical team handling the case
Engineer A's formal organizational isolation from the State's case in the water-rights proceeding, implemented by his current employer
Conclusion of the court proceeding or lifting of the isolation arrangement
State employer's decision to isolate Engineer A from the specific water-rights case upon his hiring, presumably in recognition of his prior involvement
{'license': 'Professional Engineer (stamping authority confirmed)', 'specialty': 'Water rights analysis', 'document_status': 'Stamped and sealed final report', 'proceeding_stage_at_departure': 'Step 2 (Engineering to support application)'}
Engineer A participated in and stamped the water-rights analysis report prepared for the client, creating ongoing professional accountability for the sealed document through the multi-step judicial process.
{'type': 'co-stamper', 'target': 'Co-Stamping Engineer at Firm'}
{'type': 'employer', 'target': 'Private Engineering Firm'}
Confidentiality Obligation — Engineer A Former Employer and Client Technical Information
Engineer A gained confidential technical knowledge through his work on the water-rights analysis for the private client. This knowledge cannot be disclosed to the State or used in the State's adversarial proceeding.
Engineer A is obligated not to disclose, without consent, confidential information concerning the business affairs or technical processes of his former private firm employer or the water-rights client.
Ongoing; no expiration of confidentiality obligation upon departure from former employer
Current Employer Litigation Strategy Confidentiality — Engineer A State Employment
Engineer A is now employed by the State, which is an adversarial party in the water-rights proceeding. His isolation from the case protects against inadvertent disclosure of State litigation strategy.
As a State employee, Engineer A is obligated not to share the State's litigation strategy, internal technical assessments, or confidential deliberations regarding the water-rights proceeding with his former private firm employer or the water-rights client.
Any involvement by Engineer A in the state's case could potentially compromise the interests of all parties—the former employer, the private client, and the state—as Engineer A's dual role and his professional opinion/judgment—as an employee of the private firm and now as a state employee—could be called into question.
Throughout State employment and the duration of the proceeding
Engineer A should be assigned other duties by the state, remain isolated from the State's water rights case
Dual Role Appearance of Impropriety Invoked for Engineer A Water Rights Transition
Interests of former employer, private client, and State
Engineer A's simultaneous status as former technical contributor to the water-rights analysis (stamped on behalf of private client) and current employee of the State (adversarial objector) creates an appearance of impropriety that could compromise the interests of all parties and call Engineer A's professional judgment into question
Even if Engineer A could technically maintain objectivity, the dual role creates a reasonable perception of bias or improper advantage that undermines the integrity of the proceeding and the profession
Dual Role Appearance of Impropriety Avoidance
Non-Absolute Former Client Loyalty Boundary — Engineer A Water Rights Proceeding Distinction
The Board contrasts BER 98-4 (unrelated matters, no consent required) with the current water-rights case (same proceeding, specialized knowledge, consent required) to illustrate the boundary of the non-absolute loyalty principle.
Engineer A must correctly distinguish between the non-absolute loyalty principle (which would permit adverse service in unrelated matters) and the consent-prerequisite rule (which prohibits participation in this specific proceeding involving his prior specialized knowledge without consent), applying the correct standard to the water-rights case.
At the time of Engineer A's transition to State employment and throughout the proceeding
Private-to-Public Transition Conflict — Engineer A Water Rights Case
Engineer A's transition from the private firm that stamped the water-rights analysis to the State agency that is the formal objector in that same proceeding creates a direct conflict of interest requiring disclosure, institutional isolation, and careful management of the boundary between defending prior technical work and acting adversarially against his current employer
The principle requires Engineer A to accept the institutional isolation his employer has imposed, to refrain from using knowledge of the State's litigation strategy to benefit the former private client, and to limit any defense of his prior work to technically appropriate forums rather than adversarial advocacy against the State
Engineer A worked on the project through step No. 2 and resigned from the firm to work for the State, who is an objector in this specific analysis (the State is typically an objector in most cases).
Professional Accountability for Stamped Work — Engineer A
Court proceedings challenging the analysis
Engineer A's professional accountability for the stamped water-rights analysis persists after his departure from the private firm; he cannot disclaim responsibility for the technical conclusions in the report merely because he has changed employers, and must be prepared to account for his professional judgment if the document's adequacy is challenged
Professional accountability here requires Engineer A to acknowledge his role in the stamped document and to be truthful about the technical basis of its conclusions — but does not require him to act as an advocate for the former client's position in adversarial proceedings against his current employer
Absolute Loyalty Prohibition Invoked in BER 98-4 Engineer A Multi-Party Litigation
ABC Manufacturing patent litigation engagements
Adverse plaintiff product liability engagement
Engineer A's sequential service to ABC Manufacturing (patent litigation), then to an adverse plaintiff (product liability), then again to ABC Manufacturing (different patent litigation) was held not to violate the NSPE Code because engineers do not owe perpetual absolute loyalty to former clients
The principle establishes that professional independence and autonomy require that loyalty obligations be bounded in time and scope — they do not prohibit all future adverse engagements with former clients, particularly where the matters are unrelated
Absolute Loyalty Prohibition to Former Clients
The Board resolved the tension by holding that unrelated adverse engagements do not constitute prohibited conflicts of interest, preserving professional autonomy while maintaining confidentiality obligations for related matters
Being a 'faithful agent and trustee' to a client does not obligate an engineer to a duty of absolute devotion in perpetuity.
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
Appearance of Impropriety Avoidance Through Isolation — Engineer A State Isolation Protocol
Engineer A stamped the water-rights analysis for the private client and has now joined the State, which is the formal objector. The State has already isolated Engineer A from the case.
Appearance of Impropriety Avoidance Through Isolation Obligation
The State is obligated to assign Engineer A to other duties and maintain his formal isolation from the water-rights case, and Engineer A is obligated to comply with this isolation, to avoid compromising the interests of all parties and to prevent his dual role from calling his professional judgment into question.
Confidentiality of Employer Information — Engineer A State Employment
State's litigation strategy in water-rights objection
As a State employee, Engineer A is obligated not to share the State's litigation strategy, internal technical assessments, or confidential information about the State's objection with the former private client or its representatives — even though he has personal knowledge of and accountability for the work the State is objecting to
The confidentiality obligation to the current public employer is not suspended by Engineer A's prior involvement in the work being objected to; his institutional isolation is the structural mechanism for honoring this obligation
Former Employer Confidentiality Obligated State Engineer
Confidentiality of Employer Information in Public Agency Context
Conflict of Interest Recusal — Engineer A Water Rights Proceeding
Engineer A stamped the water-rights analysis while at the private firm. The State (his current employer) is the formal objector to that analysis. The State has already isolated Engineer A from the case, which constitutes the appropriate recusal mechanism.
Conflict of Interest Recusal from Former Employer Work Obligation
Engineer A is obligated to recuse himself from any involvement in the State's adversarial case against the former private client's water-rights application, given that he stamped the analysis that is the subject of the State's objection and that his prior employment relationship creates an irreconcilable conflict of interest.
For the duration of the water-rights court proceeding
{'license': 'Professional Engineer (implied)', 'specialty': 'Area of expertise relevant to patent and product liability matters', 'engagement_type': 'Expert review and opinion in adversarial litigation', 'conflict_finding': 'No prohibited conflict of interest per NSPE Board'}
Retained sequentially by ABC Manufacturing (patent litigation), then by Attorney X representing a plaintiff adverse to ABC Manufacturing (product liability), then again by ABC Manufacturing (separate patent litigation). Cross-examined about prior relationships with both sides. Board found no prohibited conflict of interest.
{'type': 'adversarial_cross_examination', 'target': 'Opposing Counsel BER 98-4'}
{'type': 'client', 'target': "Attorney X (plaintiff's counsel)"}
{'type': 'client', 'target': 'ABC Manufacturing'}
Engineer A was retained by Attorney X, who represented a plaintiff in product liability litigation against ABC Manufacturing
opposing counsel questioned Engineer A's previous relationship, both in defense of and in litigation with ABC Manufacturing
Engineer A Prior Specialized Knowledge Participation Bar — Water Rights Proceeding
From Engineer A's transition to state employment through the duration of the water rights proceeding, absent consent of all interested parties
Engineer A cannot disclose, participate or represent the state's interest in connection with this proceeding unless Engineer A first obtains the permission/consent of Engineer A's former private firm employer and also the client
Prior Specialized Knowledge Participation Bar State
Engineer A's prohibition on participating in the state's water rights case due to specialized knowledge gained while employed by the private firm on behalf of the private client
Consent of all interested parties (deemed unlikely under the facts) or conclusion of the proceeding
Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained particular specialized knowledge on behalf of a former client or employer
it is doubtful that such permission/consent would be granted by either party
Engineer A's transition to state employment in a role that would involve the water rights proceeding in which Engineer A's former employer and private client are parties, combined with Engineer A's possession of specialized knowledge gained in prior role
Former Employer Client Loyalty — Engineer A Non-Adverse Participation
Engineer A stamped the water-rights analysis for the private firm's client. He then joined the State, which is the formal objector to that client's application. His residual loyalty to the former client prohibits him from assisting the State's opposition.
Former Employer Loyalty Boundary in Public Role Obligation
Engineer A is obligated to honor residual loyalty to his former private client by refraining from participating in the State's adversarial case against that client's water-rights application, and by not disclosing any confidential information about the former client's project that he acquired during his private employment.
For the duration of the water-rights court proceeding and with respect to any confidential information acquired during private employment
Loyalty Conflict — Engineer A Dual Obligations
Former private client's water-rights application
State objector agency as current employer
Engineer A faces competing loyalty obligations: a residual professional loyalty to the former private client whose analysis he stamped, and a current employment loyalty to the State as his new employer — the two loyalties are in direct tension because the State is the formal adversarial objector to the former client's water-rights application
The principle of loyalty requires that Engineer A's primary loyalty now runs to his current employer (the State) within ethical limits, and that he not use his insider knowledge of the former client's analysis to undermine the State's legitimate objection — while also not using his State position to harm the former client beyond what the State's legitimate legal position requires
Loyalty to the current employer is primary but bounded: Engineer A must not act against the State's interests in the proceeding, but may defend the technical integrity of his prior work if called upon in a forum that does not require him to act as an advocate against the State
Private-to-Public Adversarial Non-Participation — Engineer A Water Rights Proceeding
Engineer A transitioned from the private firm (whose client's water-rights application is before the court) to the State (which is the formal objector in that proceeding). He has been isolated from the State's case. He believes he should support his prior stamped work but is concerned about the remaining court steps.
Engineer A is obligated to refrain from actively participating in the water-rights court proceeding on behalf of either the former private client or the State, given that his transition from the private firm to the State — an adversarial party in that same proceeding — creates irreconcilable dual loyalty conflicts that preclude participation on either side.
Engineer A feels that he can and should support the work he performed and which was included in the stamped report, but he is concerned about the remaining steps in the court process
Stamped Document Accountability — Engineer A Water Rights Analysis
Subsequent court proceedings (steps 3–5)
Engineer A's stamping of the water-rights analysis report creates a continuing professional accountability for the technical integrity of that document, which he recognizes by asserting that he 'can and should support the work he performed' — even after leaving the firm and joining an adversarial party
Stamped Document Ongoing Professional Accountability Invoked for Engineer A Water Rights Analysis
Water-rights analysis report stamped by Engineer A
Engineer A's stamping of the water-rights analysis report creates continuing professional accountability for its technical integrity, which persists after his departure from the private firm and survives his transition to state employment — this accountability is the basis for his entitlement to defend the technical soundness of that work in appropriate forums, subject to conflict-of-interest constraints
The seal creates a professional accountability that both constrains (conflict of interest in adversarial participation) and protects (right to defend technical integrity) Engineer A's relationship to the stamped work
Engineer A participated in and stamped the water-rights analysis report prepared for the client, creating ongoing professional accountability for the technical integrity of that work.
Engineer A participated in and stamped the water-rights analysis report prepared for the client
Former Client Adversarial Participation Prohibition Invoked for Engineer A Water Rights Transition
Water-rights analysis stamped by Engineer A for private client
Engineer A cannot participate in or represent the State's interest in the water rights proceeding because he gained particular specialized knowledge about the water-rights analysis on behalf of the private client while employed at the private firm, and consent of all interested parties (former employer and client) has not been and is unlikely to be obtained
Former Client Adversarial Participation Prohibition
Former Employer Loyalty Boundary in Public Role — Engineer A Ongoing Obligations to Private Firm and Client
Engineer A transitioned from the private firm to the State. The State is the formal objector in the water-rights proceeding involving Engineer A's former employer's client.
Engineer A retains ongoing loyalty obligations to both his former private firm employer and the water-rights client, requiring him to refrain from disclosing confidential information and from participating in the State's adversarial proceeding against them.
Ongoing from the time of transition through the conclusion of the proceeding
Former Client Adversarial Proceeding Consent Prerequisite — Engineer A Water Rights State Proceeding
Engineer A transitioned from the private firm that stamped the water-rights analysis to the State, which is the formal objector in the same proceeding. The State has isolated Engineer A from the case.
Engineer A is obligated to refrain from participating in or representing the State's interest in the water-rights proceeding unless and until he obtains the informed consent of both his former private firm employer and the water-rights client, which the Board finds is doubtful to be granted.
For the duration of the water-rights proceeding and any related proceedings involving Engineer A's prior specialized knowledge
Stamped Document Continuing Technical Accountability — Engineer A Water Rights Analysis
Engineer A stamped the water-rights analysis report prepared for the client. The State is now the formal objector in the proceeding where that analysis is at issue.
Stamped Document Continuing Technical Accountability Obligation
Ongoing from the date of sealing through any proceedings in which the document is at issue
Engineer A's professional accountability for the stamped water-rights analysis persists after his departure from the private firm
Loyalty Principle Invoked for Engineer A Ongoing Obligations to Former Employer and Client
Engineer A retains ongoing loyalty obligations to both his former private firm employer and the water-rights client, requiring him to refrain from acting adversely to their interests in the water rights proceeding even though he is now employed by the State
{'license': 'Professional Engineer (implied)', 'specialty': 'Water rights analysis', 'current_employer': 'State agency (objector in water rights proceeding)', 'former_employer': 'Private engineering firm', 'former_client': 'Private client of former firm', 'ethical_obligation': 'Mandatory recusal and silence without consent of former employer and client'}
Transitioned from private engineering firm (which had a client in a water rights matter) to state employment. The state is now an adversarial party in the water rights proceeding involving Engineer A's former private employer and its client. Engineer A must remain isolated from the state's case and be reassigned to other duties.
{'type': 'conflict_with', 'target': 'State Water Rights Proceeding'}
{'type': 'former_client_obligation', 'target': 'Former Private Client'}
{'type': 'former_employer', 'target': 'Former Private Engineering Firm'}
Engineer A cannot disclose, participate or represent the state's interest in connection with this proceeding unless Engineer A first obtains the permission/consent
Engineer A's dual role and his professional opinion/judgment — as an employee of the private firm and now as a state employee — could be called into question
Stamped Document Continuing Accountability — Engineer A Water Rights Analysis
Engineer A stamped the water-rights analysis report while employed at the private firm. He subsequently resigned to join the State. The court proceeding involving that analysis is ongoing and will proceed through objection, rebuttal, mediation, and trial phases.
Engineer A is obligated to maintain ongoing professional accountability for the technical integrity of the water-rights analysis he stamped, and may not disclaim or disavow that work without technical basis, even after departing the private firm that produced it.
Ongoing from the date of sealing; persists through the completion of the court proceeding and beyond
Faithful Agent Duty — Engineer A to State Employer
Engineer A's current employer is the State, which is an adversarial party in the water-rights proceeding. The State has isolated Engineer A from the case. Engineer A's faithful agent duty requires him to respect this arrangement and not circumvent it by independently 'supporting' his prior work in ways that could harm the State's position.
Engineer A is obligated to act as a faithful agent to his current employer (the State) by respecting the isolation arrangement imposed by the State, not taking actions that would undermine the State's legal position, and not using his State employment to benefit the former private client.
For the duration of Engineer A's State employment and the water-rights proceeding