CEN 800 - Chapter 9 – Ethical Problems of Engineers in Private Practice

Ethics Section – Chapter 9 – Ethical Problems of Engineers in Private Practice Engineers in private practices may face ethical problems, in addition to those described in Chapters 7 and 8 The frequent interaction with clients, suppliers, contractors, subcontractors, and government agencies occasionally leads to conflicts of interest, or ethical dilemmas Advertising for Engineering Work: Engineer in private practice may not be known to the many corporations seeking engineering services, and may feel the need to advertise Every province has some restrictions on advertising engineering services This is to ensure fairness and honesty in competitive evaluation of professional qualifications and experience Advertising is advertise in all types of mediums, and it seems to be obviously demeaning and unprofessional to have engineering services to be advertised the same way as soap, or chewing gum However, advertising that communicates facts and data about the experience and expertise of an engineering in private practice is fair and unobjectionable In the past, the business card form of advertising was the only acceptable advertising method, and the back pages of many engineering publications continue to be filled with these advertisements Most code of ethics state that the engineer shall not advertise their professional services in a language that boasts about themselves, and will in no way be derogatory to the dignity of the profession In Ontario, they are able to advertise in a professional and dignified manner factually, without expression This advertising also cannot directly, or indirectly, criticize another licensed engineer Also, the association forbids any engineer to use their seal in any form of advertising, including business heads and letter heads However, the association’s decorative logo, may be used on business cards and letterhead, but this is only to signify membership in the Association Engineering Competence: The client is paying for competence when the engineer is hired to work on the client’s project An engineer who attempts an assignment that is beyond their level of competence is guilty of unethical conduct, and could be guilty of unprofessional conduct or incompetence This doesn’t mean that the engineer has to be a world-class expert in every phase of the project proposal before accepting in, but they should be sufficiently familiar with the subject to know that they can become competent through study or research in a reasonable period of time without delaying the project Essentially, the client’s project must not be put at risk because of the engineer’s lack of competence Use of the Engineer’s Seal: Each provincial Act provides licensed engineers the opportunity to use a seal for the province that they’re in The seal is usually an inked rubber stamp indicate that the person named on the stamp is licensed in that province The term seal and stamp are interchangeable The Act, or regulation, typically requires that all final drawings, specifications, plans, reports, and other documents involving the practice of professional engineering, when these are given, must be dated and bear the signature and seal of the professional engineer Using this seal is not optional, and is a standard requirement by the act Most documents state that they were prepared, or checked and approved, by the person who sealed them This seal has legal significance, since it indicates that the person who sealed the documents accepts responsibility and accuracy of the documents Also, it indirectly applies that the person who sealed the documents has direct knowledge of the project, or when they are checking the documents for another engineering, they indirectly have knowledge of the project to which the documents are related If an engineer signs and seals a document to which do not have thorough knowledge may be guilty of professional misconduct, and may be liable for fraud or negligence if this results in someone suffering damages “Checking” Engineering Documents: The term checked and approved usually means that the documents were prepared by someone under the direct supervision of the person who signed and sealed them However, some provinces say that you can seal the work of others, only if a thorough review of the work, and the engineer who seals these documents accepts full responsibility You don’t have to supervise them in doing this work in this case As such, if you have performed a sufficient review and analysis of the work, and that you are willing to accept full responsibility for it, then you can use your seal for the work in most provinces However, for some large scale projects, a proper review would need a complete duplication of the analysis Therefore, if the work was completely redone by you, it would be appropriate for you to assume responsibility for it It’s very important to avoid situations where an engineer would be led into a trap Example: It’s common for an unlicensed person to ask an engineer to seal documents to aid the person in practicing without a license or to avoid the cost of a full engineering analysis on the work Regardless of this, it is a case of professional misconduct when you assume responsibility for work that is beyond your area of expertise, or for work that you haven’t thoroughly reviewed for accuracy Preparation and Approval: If an engineer has prepared a document or drawing, and another engineer must approve it, both of their seals should appear on it whenever possible If this isn’t possible, then only the approving engineer should seal it, indicating that they will take full responsibility for the document or drawing If final drawings cover more than one engineering discipline, it’s typically recommended that the drawings are sealed by the approving engineer, who is usually the chief engineering or project leader and by the design engineer for each discipline Preliminary Documents: Preliminary documents, drawings, or specifications are usually not sealed, but are clearly marked preliminary, or not for construction Only the final drawings are sealed Also, an engineer should not seal a document if it contains no engineering content Sometimes, preliminary documents may need to be sealed. If this is the case, the keywords preliminary or not for construction should be included prominently Reports: Individual pages of a report or drawings included in a report don’t have to be sealed only in the case when the report as a whole has been signed, sealed and dated Sealing of Detail Drawings: The engineer generally has responsibility for a project as a whole, and their seal must appear on the major reports, specs, or drawings that describe the project Usually, the engineer isn’t expected to seal every detail drawing However, the drawings must be prepared under the engineer’s control and supervision, and they assume responsibility for them, whether they’re sealed or not Sealing of Masters and Prints: Master drawings must be complete and unambiguous, since they are usually the major reference for describing the concepts and the details of the structure, machine, process, or whatever is being designed The appropriate time to seal a drawing is when it’s approved and released for fabrication or construction Modifications to final drawings have to be controlled and documented This control is helped by sealing just the prints (copies of the master), and not the master drawing In this way, the prints can be checked for modifications when sealed Sealing of Soft Drawings: It is very easy to make unauthorized changes on computer drawings and these are difficult to detect There has to be some form of control to prevent unauthorized copy or modification to computer files As such, for final drawings, these are password protected, or they are put on storage media in secure locations Seals are applied by hand only on the prints, and not electronically on the file itself These hard copies would then become master prints Confidentiality: The engineer has a clear obligation, under the code of ethics, to keep the affairs of the client confidential In some cases, a client may request to sign a NDA to prevent the engineer from disclosing the client’s affairs to any 3rd party, unless they are authorized to do so by the client Engineers in private practice may encounter a potential conflict of interest when accepting work from a new client, who is a competitor of a former client As such, an engineer should not accept a contract which would require the disclosure of the former client’s affairs, whether it be technical, business or personal This proprietary information, or trade secrets, could cause financial loss to the former client if disclosed Under the code of ethics, this requires the engineer to keep the former client’s trade secrets undisclosed, and it may not be advisable to accept work from the new client, even if there wasn’t an NDA signed Conflict of Interest: Engineer in private practice may occasionally encounter conflicts of interest A conflict of interest occurs when a professional has an interest that interferes with the services owed to the client Example: If an engineer recommends that a client purchase goods or services from a company in which the engineer has partial ownership and the client is not fully aware of this, the engineer has created a serious conflict of interest and is contrary to the code of ethics Another example could be when the engineer suggests that the client adopts a course of action, where the main benefit is to reduce the engineer’s workload If there isn’t a similar reduction in the fees owed to the engineer, the engineer has a conflict of interest, and this must be disclosed fully to the client If there are any conflicts, or potential conflicts of interest, the engineer must make a full disclosure to the client of the engineer’s personal interest, whatever it may be Even if the client agrees that the conflict of interest is insignificant in the end, they are at least informed, and are making a fully informed choice Reviewing the work of another engineer: When reviewing the working of another engineer, the welfare of the client or the general public must come before the personal wishes of the engineer It also must be emphasized that an engineer should be informed when their work is being reviewed, but it isn’t necessary to seek or obtain the engineer’s permission to review their work Design Calculations: A client may request that an engineer submit calculations that were done to support a recommendation This results to a review of the engineer’s work, but it is done with the full knowledge and cooperation of the engineer Client has an ethical right to review these calculations and make a copy for permanent record Occasionally, the computation techniques, or data on which the computation is made may be proprietary, and the engineer may not wish to divulge them In this case, the conditions for reviewing the calcs should be negotiated before hand, and the extent of disclosure should be discussed in advance Usually, this is done by providing the data to the client, but the client must be sure to keep the data confidential Negligence and Civil Liability: A breach of contract is a failure to complete the obligations specified in a contract Negligence is a failure to exercise due care in the performance of engineering Although it’s possible to obtain protection of your personal assets due to breach of contract by purchasing liability insurance, this will not help you avoid disciplinary action for negligence, incompetence, or professional misconduct Case Study 9.1 – Approval of Engineering Plans by Town Council Summary: Edward Beck is a consulting engineer in a small town He has been elected to sit on the town council as a councillor and is a part-time job He has also been hired by a developer to draw up plans for the street layout and water and sewage facilities for a new residential subdivision in the town This developer submitted plans to the town council, which includes Beck’s drawings and specifications Later, in a town council meeting, Beck votes to approve these plans However, during this discussion, Beck did not publicly state his relationship with the developer, and doesn’t conceal it either His signature and seal are on some of the plans that were submitted to the council Everyone knows that he is the only engineer in town who does this type of work, and he is certain that they would prefer to see local people hired for this project Question: Has Beck acted in an unethical manner when approving this project? Author’s Recommended Solution: This situation in small towns having only a few engineers occurs often, and a conflict of interest can’t be avoided Engineers shouldn’t be disqualified from projects because they are performing a public service as members of town councils However, in this case, it’s not enough that everyone knows that Beck has a business relationship with the developer He should have made a clear statement of his involvement with the project, and his relationship with the developer Since this is a conflict of interest, he shouldn’t have been allowed to vote, because of course, it would serve in his best interests Since he participated in a formal vote, without disclosing this conflict of interest, Beck has exposed himself to the possibility of a complaint to the association, and possible disciplinary action Case Study 9.2 – Advertising Products for Engineering Services Summary: Alonzo Firenze is a consulting engineer to the Acme Amphibious Transporter Company and they manufacture small amphibious recreational vehicles with a moulded practice hull Each vehicle is driven by 8 low-pressure balloon tires and can manoeuvre quickly and safely on land and water When preparing for a television campaign to increase sales of the vehicle, the television producer suggest that Firenze appears on camera to endorse the safety aspects of the vehicle as an engineer and safety expert Television producer points out that Firenze has conducted extensive tests, studies, and surveys on the vehicle, and can speak with authority Also, Firenze is very photogenic, and wants exposure to the general public Question: Is it unethical for Firenze to appear in the TV commercial and make a statement to endorse the recreational vehicle? Author’s Recommended Solution: Though participation in a TV news or documentary program on vehicle safety is considered to be suitable professional activity, endorsing a product in a TV commercial will be seen to be unprofessional, and would lower the public esteem of the engineering profession As such, this is clearly unethical The key purpose for commercials are to increase sales Also, with the history of commercial advertisements, they have a sad history of half-truths and appeals to emotion, rather than logic An engineer who publicly praises a product that was manufactured by a corporation that hired him has a clear conflict of interest He is obviously persuading the general public to buy the vehicle for the company that he works for, increasing the sales of the company This endorsement would also appear to be rehearsed, since the product is being advertised by an employee of the same company that manufactures these vehicles Also, Firenze wants to appear on the commercial for the personal exposure he will receive This isn’t a proper format for advertising for engineering services As such, he should not participate in the commercial, and should seek other methods to better expose himself to the public and to the profession Cast Study 9.3 – Contingency Fee Arrangements Summary: As an engineer in private practice, you’re considering whether to offer your services on a contingency basis What this means is that you will be paid a percentage of some outcome, and depending on what outcome that is, what you’ll be paid is related to that outcome Two clients wish to retain you Client A wants to retain you to act as an expert witness in a lawsuit against a third party This lawsuit, if successfully, should result in a very large sum as a settlement Client B has shown an interest in retaining you so that you could recommend changes to the energy usage of a manufacturing process After an initial study of the problem, you believe that the energy savings could be immense You also believe that Client B would be more responsive if fees were contingent on the savings Question: Is it ethical to offer services on a contingency basis to either of these clients, with the understanding that you would be paid a percentage of the legal settlement, or a percentage of the value of the energy savings? Author’s Recommended Solution: These cases are similar, but are distinctively different For Client A, you’re acting as an expert witness An expert witness is allowed to express opinions, whereas a non-expert witness is confined to their testimony of known facts Therefore, an engineer testifying as an expert witness must have stay neutral toward the outcome of the case However, as a recipient of a percentage of the potential settlement for Client A, you would have a conflict of interest and your testimony would be suspect You’re supposed to stay impartial (neutral), but you’ll be receiving part of the settlement if Client A wins Therefore, it’s unethical to accept this on a contingency basis You should bill Client A for the time and expenses or on a flat-rate basis, so that reimbursement is independent of the outcome of this case For Client B, this is somewhat different, since there isn’t a need for impartiality The bias you provide toward reducing energy consumption could be very beneficial to the client Also, you have a duty to yourself to charge an adequate fees Therefore, the proposal to base the fee on a contingency isn’t unethical here However, there might be some perception of unethical behaviour, unless these savings results can be measured accurately, and impartially, and can be achieved without degrading the client’s products or services You could be telling the client that there will be savings, even though there won’t be so you can get money As such, even though this method of setting a fee is ethical, there are risks associated to it Case Study 9.4 – Adherence to Plans and Control of Sealed Drawings Summary: Professional engineer in private practice is hired by a building contractor to prepare drawings for the forms and scaffolding needed to construct a reinforced concrete bridge The forms and scaffolding must sustain the weight of about 1400 tonnes of concrete, until the concrete is cured The engineer preps the drawings, signs and seals the original drawings, and gives this to the contractor The contract later hires the engineer to inspect the completed structure The engineer finds that the contractor made several changes to the plans The engineer isn’t sure now if the structure is safe or unsafe Contractor stated that there isn’t anymore time, and the concrete has to be poured in 48 hours The engineer feels that there is an obligation to the contractor because of their previous professional relationship, and hopes that it will continue Question: What should the engineer do? Author’s Recommended Solution: Two issues are at stake here When the engineer passed the sealed original drawings over to the contractor, control of the drawings was lost Changes could have been made to the original and if these changes are unsafe, this could cause problems for the engineer As a general rule, prints (copies of the original) are only sealed and signed when modifications are evident That way if there were changes to the original, this doesn’t leave the engineer liable, because those weren’t the engineer’s changes The engineer keeps the original, or places it in a secure place, and seals the copies However, it doesn’t look like that any changes were made Also, the contractor did not construct the forms and scaffolds according to the plans made by the engineer, and now the engineer has to inform the contractor that these changes must be evaluated to ensure that it’s still safe The engineer should notify the contractor in writing that concrete must not be poured until the review and re-inspection is complete Also, the structure may be unsafe and could pose as a hazard to the general public This analysis should be performed ASAP to meet the 48 hour deadline, but if it isn’t met, the project cannot proceed until all safety concerns have been satisfied The contractor should have consulted with the engineer about the changes earlier in the construction, so that the delay could have been avoided Case Study 9.5 – Fee Reduction for Similar Work Summary: Susan Johnson is a P.Eng. in a private practice She is hired by Client A to design a small explosion-proof building for storing flammable paints, chemical and explosives The work is carried out by her design office, and copies of the plans are provided to her client After construction is complete, she is approached by Client B, and they have seen the building and has a similar requirement Client B suggests that the fee should be significantly reduced since the design is already finished, and only minor changes are needed As such, this would also save her time in making the full design Question: Would it be ethical for Johnson to reduce her fees as suggested? Is this good business practice? Author’s Recommended Solution: Establishing fair and reasonable fees depends on 5 things 1. Level of knowledge and qualifications required 2. Difficulty and scope of the assignment 3. Responsibility that the engineer must assume 4. Urgency with which the work must be accomplished 5. Time required Of these 5 factors, only 5th factor is likely to be reduced because a similar project was successfully completed The client benefits from receiving a design that has been tested, and is likely more dependable and easier to construct The rest of the factors remain unchanged As such, this is poor business practice to accept a substantial reduction in fee for providing the drawings for this structure Also, even if Johnson makes savings on time, it’s unethical to pass these savings onto Client B, since the original design was funded by Client A at a full price Giving a reduced fee to Client B would raise some questions If the building fell, would the client ask for the entire sum back, like the sum that Client A paid for, or the reduced price? Also, are savings passed on to the client’s customers as a result of prior experience? Obviously, the answer is no. However, if Client A was requesting a second building of a similar design, then it would be appropriate to pass on some of the savings in terms of time Case Study 9.6 – Alleged Collusion in Fee Setting Summary: A large corporation wants to extend its manufacturing facilities and interviews three consulting engineering firms to design and supervise the construction of the new plant Each firm states in its proposal that fees would follow the schedule proposed by the association Later, the corporation decides that it could reduce the cost of the project by doing some initial studies themselves and providing its own engineers to assist in supervising the construction of this plant The corporation asks each of the firms to quote on how much its consulting fees would be reduced if the corporation were to provide this assistance The three firms meet, discuss the corporation’s request, and then submit the same fee reduction amount The corporation complains to the association and says the engineers colluded in their bids, and it’s unethical and illegal conduct Question: Is it unethical for the three firms to agree on the fee reduction to be allowed for this assistance? Author’s Recommended Solution: Price competition is not a part of the association’s contracting procedure, although fee negotiation is appropriate once a consulting firm has been selected In this case, the co-operative action by the firms isn’t unethical There wasn’t any indication that the corporation wanted competition on a fee basis This complaint after the fact appears to reveal a misunderstanding on the part of the corporation