March/April 2017

On Ethics: You Be the Judge
The Man Who Knew Too Much?

A PE is asked to serve as an expert witness for the defense, but he’s privy to information that raises ethical questions.

What Do You Think?
Would it be ethical for Ames to serve as an expert witness retained by Lawyer Yeats, who represents Poundstone?

What the Board of Ethical Review Said
This issue, which the NSPE Board of Ethical Review has considered in the past, involves an engineer serving as an expert witness for a client that is in a dispute in which the engineer may have had some type of past relationship or gained some level of knowledge. As with other BER issues, while sometimes these issues are easily resolved, other times the issues involve more complex questions and are not so easily determined. In this case, the Board is of the opinion that it would be ethical for Ames to be retained by Lawyer Yeats representing Pamela Poundstone. As was analyzed in the earlier cases considered by the Board, in this case, Ames never entered into a formal relationship with Lawyer Xavier or Lawyer Xavier’s client Daniel Davis. Moreover, no substantive facts were ever shared with Ames in connection with Lawyer Xavier’s client Davis. Instead, the only mention of the case was a speculative opinion on the part of Lawyer Xavier that the case in which Lawyer Xavier was representing Davis was very weak and would probably be unsuccessful. Lawyer Xavier’s unsolicited admission as to the merits of Davis’s position should not be a basis to limit Ames’s ability to serve as an expert witness retained by Lawyer Yeats, representing Poundstone. In the Board’s opinion, these factors taken together do not amount to a basis for concluding that the information disclosed to Ames constituted particular specialized knowledge or that Ames’s actions rose to a level that constitute any breach of confidentiality.

Conclusion
It would be ethical for Ames to serve as an expert witness retained by Lawyer Yeats, who represents Poundstone. NSPE Code References Section II.4.a.: Engineers shall disclose all known or potential conflicts of interest that could influence or appear to influence their judgment or the quality of their services.

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.

Section III.4.a.: Engineers shall not, without the consent of all interested parties, promote nor arrange for new employment or practice in connection with a specific project for which the engineer has gained particular and specialized knowledge.

Section III.4.b.: Engineers shall not, without the consent of all interested parties, participate in nor 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.

For more information, see Case No. 12-12.