Project Outlook 2016 ETHICAL CONSIDERATIONS Project Outlook 2016

Project Outlook 2016 ETHICAL CONSIDERATIONS

Project Outlook 2016 ETHICAL CONSIDERATIONS PRESENTED BY: Steven B. Loeb, Esq. Breazeale Sachse & Wilson, L. L. P. Phone: 225. 381. 8050 Fax: 225. 387. 5397 Email: sbl@bswllp. com

Does the breach of an ethics standard constitute a breach of the “standard of care”

Violations of ethical duty do not, standing alone, constitute actionable negligence although rules of professional conduct may be relevant in defining the particular standard of care, they do not provide an independent basis upon which to impose liability. Teague v. St. Paul Fire and Marine Ins. Co. , 10 So. 3 d 806, 20061266 (La. App. 1 Cir. 4/7/09), writ denied 10 So. 3 d 722, 20091030 (La. 6/17/09)

The proper inquiry for determining professional negligence is whether the failure to properly act is a cause-in-fact of plaintiff’s damage and, had the professional properly performed the act, would the damage been prevented.

Thus, simply establishing that the professional was negligent, whether based upon the failure to conform to an ethical rule or some other standard, would not be sufficient to state a cause of action for malpractice. Trans Pacific Interactive, Inc. v. U. S. Telemetry, 2010 WL 5545406 (La. App. 1 Cir. December 29, 2010 )

Should a violation of rules of professional conduct be treated like a violation of statute in a negligence case, i. e. , as negligence per se?

• As to the alleged violations of the engineer's code of ethics as set forth in the licensing regulations, one court has determined that such rules of conduct were never intended to impose actionable common-law duties on engineers. • The Court held that the code is intended to aid the State Board of Examiners for Professional Engineers and Land Surveyors in policing the engineering profession, and not to provide common-law duties. • Thus, the Court concluded that violation of the ethics code does not satisfy the requirements for a cause of action sounding in negligence per se. Bernbach v. Timex Corp. , 989 F. Supp. 403 (D. Conn. 1996)

The better rule would seem to be that the ethics rules are relevant to, but do not determine, the standard of care. 21 Frank L. Maraist, et al. , Louisiana Civil Law Treatise

One Louisiana court concluded that rules of professional conduct are “instructive” in determining if a professional duty existed, and one judge went further and stated that such rules “establish the standard of care” and that a breach of the duty established under the rules “gives rise to a claim in tort. ” Smith v. Patout, 956 So. 2 d 689 (La. App. 3 rd Cir. 4/11/07)

This case has not been accepted by later cases. Rather, Louisiana courts have typically held that while rules establishing professional ethics are relevant to the “standard of care” they do not provide an independent basis upon which to impose liability.

Thus proof of the violation of an ethical rule, standing alone, does not constitute actionable malpractice. Teague v. St. Paul Fire and Marine Ins. Co. , 10 So. 3 d 806 (La. App. 1 Cir. 2009)

Board of Ethical Review Cases

Case 15 -1 Conflict of Interest Former Government Official – Independent Contractor for Firm PERTINENT FACTS • Engineer with State X DOTD decides to leave his position to become an executive with an A/E firm. • State X refuses to grant permission because Engineer would be in violation of state law that requires a public employee to wait a year after leaving the State before accepting a position with a firm that does business with his former agency. • Engineer leaves the highway department and joins the A/E firm as an “independent contractor. ”

Question: Was it ethical for Engineer P to leave the State highway department and join the A/E firm not as an “employee” but as an “independent contractor”?

NSPE Code of Ethics References: Section I. 5 − Engineers, in the fulfillment of their professional duties shall avoid deceptive acts. Section II. 4. − Engineers shall act for each employer or client as faithful agents or trustees. Section III. 4. a. − Engineers shall not, without the consent of all interested parties, promote or arrange for new employment or practice in connection with a specific project for which the engineer has gained particular and specialized knowledge.

Discussion: • While Engineer satisfied the obligation to fully disclose what he was doing, disclosure alone is not sufficient for Engineer to meet the ethical requirement. • The fact that Engineer proceeded to join the A/E firm as an “independent contractor” instead of as an “employee” is an apparent way of circumventing state law. • The Board of Ethical Review believes that Engineer’s actions were unethical.

Case 15 -7 Confidentiality Discussion with Potential Bidding Contractor PERTINENT FACTS • Engineer is doing design work for a Municipal water treatment facility. • Engineer would like to discuss constructability issues with a local contractor with whom Engineer has worked and who may potentially also bid on the project.

Question: Would it be ethical for Engineer to discuss constructability issues with a local contractor, with whom Engineer has worked and who may potentially also bid on the construction contract following the design phase?

NSPE Code of Ethics References: Section II. 4. - Engineers shall act for each employer or client as faithful agents or trustees. Section III. 4. - 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.

Discussion: It is unethical for Engineer to privately discuss constructability issues with any contractor who may bid on the construction contract. Instead, Engineer could conduct a publically advertised constructability meeting, inviting all interested contractors to provide the input necessary to achieve a better design. Engineer may also want to consider hiring a consultant to advise on constructability issues.

Case 15 -11 Public Health and Safety Engineer’s Duty to Adhere to Codes, Standards and Guidelines PERTINENT FACTS • City Engineer developed a public works improvement program and presents the plan to the City. • One of Engineer’s recommendations is for the City to purchase a right of way to expand 11 -foot lanes to 12 feet in order meet current engineering standards. • City rejects Engineer’s recommendations and directs Engineer to continue with the design but retain the present lane configuration.

Question: What are Engineer’s ethical obligations under the circumstances?

NSPE Code of Ethics References: Section ll. 1. b. - Engineers shall approve only those engineering documents that are in conformity with applicable standards. Section lll. 2. b. - Engineers shall not complete, sign, or seal plans and/or specifications that are not in conformity with applicable engineering standards. If the client or employer insists on such unprofessional conduct, they shall notify the proper authorities and withdraw from further service on the project.

Conclusion: Engineer has an obligation to advise the members of the City Council that failure to follow Engineer’s recommendations, which are based upon current engineering codes, standards, and other guidelines, could place the public health and safety at risk and will also put the city in noncompliance with federal and state standards and requirements.

LOUISIANA LAW • In 1990, the Louisiana Supreme Court held that when a contractor (or designer) acquires knowledge of a dangerous defect and fails to warn the owner, he can be held liable for “fraud. ” • “There is a duty of disclosure placed upon one who has knowledge of a hazard which arises from the ordinary usage of the project and which creates a danger of personal injury or property damage. ” Bunge Corp. v. GATX, Corp. , 557 So. 2 d 1376 (La. 1990).

Case 14 -12 Expressing Professional Opinion Without Being Licensed PERTINENT FACTS • Engineer is a PE in State X and is visiting State Y, where Engineer is not licensed. • During the visit, a “friend” asks Engineer’s opinion about the design of a building. • Engineer visits the site and observes some technical issues regarding the design that could raise serious health and safety issues.

Questions: 1. Would it be unethical for Engineer to offer his professional opinion without being licensed in State Y? 2. Would it be unethical for the EOR to file a complaint with the state engineering licensing board, claiming that Engineer was engaged in the unlicensed practice of engineering?

NSPE Code of Ethics References: Section III. 3. a. - Engineers shall avoid the use of statements containing a material misrepresentation of fact or omitting a material fact. Section III. 7. - Engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers. Engineers who believe others are guilty of unethical or illegal practice shall present such information to the proper authority for action.

Conclusions: 1. It was not unethical for Engineer to offer his opinion without being licensed because of the potentially serious health and safety issues. However, he should have advised the EOR. 2. It was not unethical for the EOR to file a complaint with the licensing board however a statement should have been included in his complaint that the advice given by Engineer was helpful in protecting the safety, health, and welfare of the public.

LOUISIANA Had Engineer offered his professional opinion in Louisiana without being licensed here, would that conduct violate the LAPELS rules and regulations?

LOUISIANA Title 46 PROFESSIONAL AND OCCUPATIONAL STANDARDS § 101. Evidence of Qualification; Licensure It shall be unlawful for any person not licensed in Louisiana to: • practice in this state, engineering or land surveying, as defined in the licensure law and the rules of the board, or

LOUISIANA Title 46 PROFESSIONAL AND OCCUPATIONAL STANDARDS § 101. Evidence of Qualification; Licensure It shall be unlawful for any person not licensed in Louisiana to: • offer to practice in this state, engineering or land surveying, as defined in the licensure law and the rules of the board, or

LOUISIANA Title 46 PROFESSIONAL AND OCCUPATIONAL STANDARDS § 101. Evidence of Qualification; Licensure It shall be unlawful for any person not licensed in Louisiana to: • use in connection with his/her name any title or description tending to convey the impression that he/she is – a professional engineer or – a professional land surveyor; or

LOUISIANA Title 46 PROFESSIONAL AND OCCUPATIONAL STANDARDS § 101. Evidence of Qualification; Licensure It shall be unlawful for any person not licensed in Louisiana to: • assume, use or advertise any title or description • tending to convey the impression that he/she is a professional engineer or a professional land surveyor.

Case 11 -6 Design-Build Dilemma Rubber-Stamping Request PERTINENT FACTS • Engineer will provide design, construction management, and quality control services on the design-build project. • After the contract is awarded, the bonding company refuses to allow Engineer to sign and seal the design documents, but requires that all design documents be signed and sealed by an independent design professional.

Question: What is the ethical course of action for Engineer in light of his concern that a postdesign review and sealing of his work by an independent engineer could be in violation of engineering licensing laws and ethics and could constitute plan-stamping. ?

NSPE Code of Ethics References: Section II. 1. e. - Engineers shall not aid or abet the unlawful practice of engineering by a person or firm. Section III. 8. a. - Engineers shall conform with state registration laws in the practice of engineering.

Conclusion: • It would be unethical for Engineer to aid and abet in the plan-stamping (“rubber-stamping”) of the plans by an independent engineer. • Engineer should pursue alternate courses of action, including: informing the bonding company about engineering licensure laws and the Code of Ethics; or possibly teaming with an independent engineer that would be in responsible charge.

Case No. 11 -1 Signing and Sealing Subcontractor’s Calculations PERTINENT FACTS • The EOR for a building renovation project on behalf of Client prepared the plans and specifications which includes the installation of roof curbs for skylights. • The skylight supplier proposes to retain Engineer A to review and stamp the roof curb calculations and design documents in connection with the project.

Questions: Would it be ethical for EOR to review and stamp the calculations and design documents as requested in connection with the project?

NSPE Code of Ethics References: Section II. 2. b. - Engineers shall not affix their signatures to any documents dealing with subject matter in which they lack competence, nor to any document not prepared under their direction and control. Section II. 4. b. - Engineers shall not accept compensation, in any form, from more than one party for services pertaining to the same project, unless the circumstances are fully disclosed and agreed to by all parties.

Conclusion: As the Board has stated on numerous occasions, it is generally not possible to serve two masters with competing or potentially competing interests. In addition, the facts indicate the obvious circumstances where the EOR could be placed in a situation where he may be called upon to review his own work—a clear violation of the NSPE Code of Ethics.

Conclusion: Further, based upon the facts, there is a clear question as to whether and to what extent the EOR had any direct involvement in the preparation of the calculations and design documents in question and if not, whether he could properly stamp the calculations without exercising the requisite responsible charge over the work.

Conclusion: It would not be ethical for the EOR to review and stamp the calculations and design documents as requested in connection with the project, because he was not in responsible charge for the design of the skylight curb.

Case No. 09 -6 Making Changes to the Work of Another Engineer PERTINENT FACTS • Engineer prepares drawings, plans, and specifications for Client A in connection with a subdivision. • After the design work is nearly complete and ready for permitting, Client A decides not to proceed any further with the project and pays Engineer for his services. • Thereafter, Client B expresses interest in picking up the project and has expressed interest in retaining Engineer to perform the engineering work.

Questions: What ethical obligations does the Engineer have to Client A and B?

NSPE Code of Ethics References: Section III. 4. - Engineers shall not disclose, without consent, information concerning the business affairs or technical processes of any present or former client or employer, or public body on which they serve. Section III. 4. a. - Engineers shall not, without the consent of all interested parties, promote nor arrange for new employment in connection with a specific project for which the engineer has gained particular and specialized knowledge.

Conclusion: • Engineer must make a full disclosure to both the former and new client. • Engineer is free to negotiate reasonable compensation for the professional services provided to be provided to the new client based upon a variety of factors, including the value of the original work performed by Engineer, the amount of rework necessary, and other factors negotiated between the parties.

Conclusion: • The Board’s conclusions assume that the engineer has ownership over the design documents, and, therefore, the Engineer’s only obligation is to inform the client of subsequent use of the design drawings, plans, and specifications.

“Copyright protection subsists in original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated. ” 17 U. S. C. § 102(a). In 1990, Congress expanded the scope of “works of authorship” to include “architectural works, ” by enacting the Architectural Works Copyright Protection Act (the “AWCPA”). Engineering drawings may fall within the protection of the AWCPA, but does not include individual standard features.

Project Outlook 2016 ETHICAL CONSIDERATIONS PRESENTED BY: Steven B. Loeb, Esq. Breazeale Sachse & Wilson, L. L. P. Phone: 225. 381. 8050 Fax: 225. 387. 5397 Email: sbl@bswllp. com

Project Outlook 2016 ETHICAL CONSIDERATIONS PRESENTED BY: Steven B. Loeb, Esq. Breazeale Sachse & Wilson, L. L. P. Phone: 225. 381. 8050 Fax: 225. 387. 5397 Email: sbl@bswllp. com