"Practice" of Engineering 3

[msquared48]

So, the first question is, according to engineering ethics and the laws of the respective state boards, what specific actions by an individual would constitute "the practice of engineering"?

The second question is, would those same actions constituting "the practice of engineering, necessarily require state licensing to legally and ethically perform such actions? If not, then under what circumstances?

Mike McCann
MMC Engineering

 

[stevenal]

http://www.nspe.org/PEmagazine/pe_1108_Legal_Beat.html

Question: I have been asked to provide an expert opinion regarding litigation in Indiana. I am licensed in New York and Vermont. The engagement arose through a referral from a mutual friend; I do not advertise or solicit business in Indiana. Since the matter is within my area of expertise, and since there are no conflicts of interest, I am interested in working on the case. My question concerns whether licensure in Indiana is required, and if so, at what point in the process it would be required. (New York)

Answer: Legal interpretations vary from state to state regarding whether serving as an expert witness constitutes the "practice of engineering" under a state's engineering licensure law.
As a general rule, the determination of whether an individual may testify is made by the state court under constitutional separation of powers principles. However, an engineering expert unlicensed in the state in which he or she is offering or providing engineering expert testimony should be prepared to be reported (quite possibly by opposing counsel) to the state board for engaging in the unlawful practice of engineering. While constitutional separation of power principles may not prevent an engineering expert unlicensed in the state in which he or she is providing services from testifying in court, those same principles may not prevent the state engineering licensure board from taking subsequent enforcement action against the expert for practicing engineering without a license. In addition, if it is determined that an individual practiced engineering without a license in violation of the licensure law, it may be difficult for the individual to obtain his or her professional fee, since the contract to provide services would constitute an illegal contract. If at all possible, you should pursue either becoming licensed in Indiana or obtaining a temporary permit to practice, if available.

 

[hokie66]

It probably does vary from state to state in the US, but I doubt that an expert witness accepted by the court would ever have his fees disallowed on the above basis. I have served as an expert witness in a state where I was not licensed, and was paid without question. In my opinion, it is ludicrous to require licensure in a specific locale in order to provide expert testimony. This would in many cases exclude the best advice available, if that advice is from interstate or international experts.

 

[msquared48]

Hokie:

That's where the temporary permit to practice comes in - it is usually for a specified time or particular job. Washington has it.

As a sidelight ... Here is the exerpt for the PE exam requirements in Washington...

Professional engineer
Before getting a license, you must meet all of the following requirements:

Pass the EIT (Engineer In Training exam).
Pass the PE (Principles and Practices of Engineering exam).
Have 8 years of professional-level experience under the direct supervision of a licensed engineer. (Education in an ABET-accredited program may count for up to 4 years of this experience.)

With a PhD, the EIT can be waived with a certain formality of forms. Passing the PE - they could probably do it, but getting seated for it could be the bugaboo - the problem I see for a research professor obtaining a PE would be the 8 years work experience under another licensed PE. Probably is not going to happen as most research profs are independent of any supervision except for their grant satisfaction requirements. I think these guys have worked themselves into a hole from which licensure is very nearly impossible. Yet, many still give "expert opinions" using engineering principles from their discipline - practicing engineering to me. I have to be licensed to give expert engineering testimony in the State of Washington and have done so. Why not them? Is this an unopened can of worms here?

I described the situation to a legal rep from my state board today, and he said that licensure was definitely required for expert testimony in an engineering capacity in the State of Washington. Three of the critical issues are the use of a seal, purporting to be an engineer, and/or receiving compensation for the services rendered. There are others.

I'm going to dig deeper... It's starting to smell.

Mike McCann
MMC Engineering

 

[stevenal]

Mike,

Don't forget; if you have knowledge of un-licensed practice, you have an obligation to report.

My wife obtained the supervised experience for her LCSW (licensed clinical social worker) by paying an LCSW to look over her work. Since then, she has served in that capacity herself. Any reason why your professor could not follow that path?

 

[EddyC]

Perhaps the individual in question is an employee of an established firm that has licensed supervisors, owners & a certificate of authorization? Didn't most of us start out our careers in this way, working for someone else?

 

[msquared48]

EddyC: Nope.

stevenal:

I am aware of that ... perfectly. Just need to make sure of the facts here, and the legalities before I proceed. That's part of the reason for the post here - to get feedback. Thanks.



Mike McCann
MMC Engineering

 

[hokie66]

An expert is an expert if accepted by the court as such. The court can accept expert testimony from a physicist, a builder, a concrete technologist, lots of others, all in a case involving construction. Why not a college professor with an engineering education? I don't get the link between licensure in a given state and being an expert. The lawyers can try to impeach the credentials of the expert, but if he is accepted to testify about a given issue, I don't see that he violates any ethical provisions. He is only unethical if he does not testify truthfully and accurately to the best of his knowledge, and within his field of expertise.

 

[hokie66]

An analogy just occurred to me. Who writes codes of design? Say the ACI codes, for example. I don't think all those people, especially some of the academics, are licensed. But aren't they performing engineering work, which is essentially practicing engineering? They are developing design standards which the actual licensed engineers follow like lemmings, yet the writers of the codes may or may not be licensed.

 

[msquared48]

Hokie:

True, but there is a fundamentsl difference between setting up the guidelines for an engineering profession per se with all sorts of disclaimers, and practicing engineering under those same guidelines for a client for a profit and all sorts of liability. I am not sure how the ACI is set up legally, but it could be a form of an engineering corporation, or several corporations, with the engineering sanction for its publications coming from that corporate engineering status, the professional engineering status of each individual committee member becoming a moot point. In essence, the committee members function under the umbrella of the ACI. Such would be the same for the ASCE, the ICBO, the IBC, Etc., Etc., Etc.

This individual is not in that boat of setting code related guidelines for others. He is not under the umbrella of a licensed engineering corporation either. He is, on his own, using long established principles of engineering, and some developed by his own research, to perform calculations and justify a "professional" opinion, that of an expert witness, which he is, relating to a particular event, writing reports to summarize his findings.

Still researching...

Mike McCann
MMC Engineering

 

[stevenal]

hokie,

"An expert is an expert if accepted by the court as such."

Agreed. See the Q/A I posted above, noting the part about separation of powers. The court is doing nothing illegal in accepting the testimony, and neither are the lawyers or any of the court officers. The hired gun professor, if claiming his expertise is in engineering, is. It is not the duty of this particular court to decide if unlicensed practice occurred.

By the way, the author of the answer above has his expertise in engineering law.

 

[hokie66]

stevenal,

So we agree as to the discretion of the court to accept whatever testimony it deems appropriate.

But I still think that whether the professor is doing anything illegal or unethical would vary with the jurisdiction. And perhaps more importantly for the individual concerned would be the varying power of the state boards to discipline someone not licensed in that state. Some may have the power to prosecute anyone in state court, others to institute disciplinary procedures against licensed engineers only, etc. The professor may not care, if he is not subject to prosecution and does not wish to actually practice.

 

[stevenal]

It would be a pretty toothless board that could not enforce registration laws against those who are not registered. Sorta like unlicensed motorists not being subject to traffic laws. Which states have those kinds of boards?

If it goes far enough, I suspect it is the attorney general that actually has the power to prosecute after the board brings the case to him/her.

 

[DonPhillips]

I would not count on the Attorney General doing a whole lot. I reported an structural firm to the Ohio engineers board for not having an COA. I later found their state charter was suspended by the tax department. I attempted to report the charter violation to the Secretary of State, who required me to report the violation to the AG. The AG stated I needed to report them to the engineering board. I asked the question what prevents any corporation from operating in Ohio without a charter and I never did get a response.

Don Phillips

http://worthingtonengineering.com

 

[hokie66]

I think most boards would find it too hard to hold all the hearings required to discipline someone if that person is not even under the umbrella of the board, and has not actually done something bad designwise. Why would a board care who gives evidence in a trial? A court case concerning construction could involve testimony from materials scientists, construction managers, suppliers, or a lot of other people, including college professors of engineering. All trying to get to the bottom of the issue.

 

[stevenal]

Two out of three recent disciplinary actions in Oregon were for unlicensed practice. Hard or not, I guess they take their charter seriously. See page 10:

http://osbeels.org/docs/Summer 2008 Oregon Examiner.pdf

 

[hokie66]

The Oregon Board certainly acted appropriately in those cases, but I don't think those examples are relevant to the professor giving expert testimony. In my mind, acting as an expert witness is not providing a professional engineering service. The study and report preparation necessary to prepare for the testimony may or may not entail provision of a professional service. A retired engineer with no further need for registration could still serve as an expert if qualified.

 

[IRstuff]

http://www.pels.ca.gov/consumers/citeunlic.shtml

California's enforcement falls into a few categories:
> claiming to be a licensed PE, or using one or more of the specifically limited titles for engineers
> stamping drawings with fake credentials
> stamping drawings with someone else's credentials

No sign of any other type of procedures

TTFN

FAQ731-376

 

[msquared48]

I am seeing that this can go either way, depending on the board and circumstances.

One critical point in the report I have though, is the fact that there is a statement thayt no medical opinions arepresented, but no such statement regarding enginering. The implication is that the writer considers himself that he is performing an engineering service by omission here.

I am going to send in the coopy of the report I have to the Washington State Practice Committee, with an introductory letter, and see what they say. Could take a while (months), but I'll let yall know what they say. Probably won't be the same for your circumstance or state, but I guess we already came to that conclusion.

Mike McCann
MMC Engineering

 

[stevenal]

Some guidelines with a sample letter:

http://www.asce.org/pdf/NSPEGuidelines.pdf

 

[drawoh]

People interested in expert witnesses should search Google on Satanic child abuse. A whole bunch of innocent people have served serious prison time because the courts failed to vet expert witnesses.

I should think that the courts should at least expect experts to be subject to peer review, which a PE would accomplish.

JHG