By Edwin Bayó, Esq.
The topic of ethics in engineering has been covered in almost every conceivable manner.
Most engineers have taken ethics to satisfy a curriculum course requirement or as continuing education for licensure renewal. These courses often cover such items as ethical codes for engineers or ethical case studies. But risk management, and specifically how it relates to ethics in the practice of engineering, is a topic seldom covered.
Any profession, especially the engineering profession, operates in a sea of uncertainty and risk. Successful engineers are the ones who are able to minimize the uncertainty and risk to avoid adverse consequences.
Of course, minimizing risk and eliminating risk are two very different things.
When the question is posed regarding whether an engineer can be sued for a certain action, an accurate response always is: “Anyone can be sued by anyone else at any time for any reason.” In the world of licensure law, however, the risk of being sued is replaced with the risk of having a complaint filed against an engineer’s license to practice engineering.
So, let’s look at how ethical engineering — or the lack thereof — can have serious risk-management implications, which in turn can affect your ability to practice.
Risk Management and Misconduct
As former counsel to the Florida Board of Professional Engineers, I have seen countless cases involving ethical issues that turn a disgruntled but passive client into a vociferous complainant, merely for a lack of simple risk management.
For example, in Florida the term “misconduct” is defined to include conduct that can be categorized as ethically improper or deficient. An engineer’s license can be disciplined under the rubric of “misconduct” for several acts, including:
- Performing an engineering assignment when not qualified by training or experience in the practice area involved.
- Revealing facts, data, or information obtained in a professional capacity without the consent of the client or employer.
- Expressing an opinion publicly on an engineering subject without being informed as to the facts and being competent to form a sound opinion.
- Soliciting or accepting gratuities without a client’s knowledge.
- Failing to preserve a client’s confidence or to disclose a conflict of interest.
Going above and beyond mere ethics, the risk to one’s engineering license stemming from the above actions are staggering. If any one of the above actions occur, a disgruntled client who might not have taken any action at all may file a complaint with FBPE. This is especially true if the above actions occur in conjunction with below-standard work.
Risk Management and Negligence
Another commonly used term to describe improper conduct with ethical and risk-management implications is “negligence.” In regard to the practice of engineering, Florida (as do many other states) defines negligence as the failure by a Professional Engineer to use due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles.
Relating to risk management, the threat of negligence can be mitigated by clearly enumerating specific remedies or limitations in the initial contract with the client. In this way, the expectations of the engineer are clearly stated, with damages determined by the contract.
Even though damages can be determined based on the reasonable expectations of the parties — thereby making enumerated limitations in the contract moot — courts will usually attempt to adjudicate within the four corners of the contract. Therefore, if remedies or limitations are clearly stated within a written contract, the risk for civil suits and complaints can be reduced.
In addition, the threat of negligence can be mitigated by clearly enumerating specific project parameters in the contract. This is important, as many clients who feel as though they were wronged by a contract “wrinkle” or “loophole” may also feel as though they have no available avenue of recompense, and in turn resort to filing a complaint against the engineer’s license.
While it is important to be flexible to suit a client’s needs, clearly listing foundational project parameters will go a long way in avoiding a complaint, or even a civil suit, later.
The Dangers of Cutting Corners
Engineers have a fiduciary duty not only to their clients but also to the public at large, as an engineer’s work may have an effect on the health, safety, and welfare of the general public. As the saying goes, “With great power comes great responsibility.” (Not to mention a great need for risk management.)
Take for example a scenario where you, a PE, agree to take on a project at a rock-bottom price. Given the state of the economy, many engineers find themselves agreeing to projects at half what they would normally charge. Nevertheless, signing on for a project at a reduced rate does not reduce your obligation to your client (or to the public). Your standard of practice must remain the same whether you charge one dollar or one million dollars for your services.
If you were to cut corners on a project simply because you weren’t paid as much as you are accustomed to, an ethical complaint wouldn’t be filed against your license. However, your risk-management “spidey-senses” should be tingling, as cutting corners opens your license to discipline for negligence or incompetence.
Do not let the fact that you are getting paid less for a project inject the venom of indifference into your work, as that will no doubt increase the risk of endangering the health, safety, and welfare of the general public and possibly open your license up to a complaint.
Another violation with ethical and risk-management implications is signing and sealing plans or specifications that were not prepared by the engineer or by someone under their responsible charge (known as “plan stamping”). In addition to the professional implications of signing and sealing plans that you have not prepared or sufficiently reviewed, this violation carries with it other ethical concerns and risks.
The law allows you to authenticate documents through your engineering seal, much like a notary. By sealing a set of plans or specifications, you are effectively stating that they are true and correct. When one considers that the lives, safety, health, and welfare of the general public are dependent upon engineering judgments, decisions, and practices incorporated into structures, machines, products, processes, and devices, plan stamping takes on a far more sinister tone. As with the first example, this ethical issue opens you up to great risk, as you are now responsible for the plans you have rubber-stamped.
Practicing Integrity and Honor
Again, Professional Engineers have a fiduciary duty not only to their clients but also to the public at large. Balancing the interests of the client and the public can be tricky.
For example, if your testimony or report is untruthful, deceptive, or intentionally misleading, or if you omit relevant and pertinent information, the risk of repercussions against your license skyrockets. Furthermore, if these actions occur in the context of a permitting decision, public repercussions are possible.
While generally only damages caused by an engineer can be recovered, that limitation could be broadly expanded to include the effects of rubber-stamped plans or lackadaisical workmanship.
The golden rule is to conduct all your affairs with integrity and honor, and to approve and seal only those documents that conform to acceptable engineering standards and safeguard the life, health, property, and welfare of the public. In that way, you can be sure that you have practiced ethically, which in turn goes a long way in practicing good risk management.
This article originally appeared in the fall 2023 issue of Engineering Florida, the statewide magazine for Florida’s engineering industry. Reprinted with permission.
Edwin Bayó is a former counsel to the Florida Board of Professional Engineers. A partner in Grossman, Furlow, & Bayó, he is board certified in state and federal government and administrative practice by the Florida Bar.