Who constitutes a client of a professional engineer? 13

[Jim6e]

Can anyone tell me where the term "client" is formally defined in the engineering profession? I am an engineer, and I am grappling with a specific case where the meaning of that term is in dispute. Here is the specific example.

A licensed professional engineer provides a locality with his signed and sealed request to modify local flood maps. The request includes engineering analysis (civil engineering stuff). The engineer was not hired by the locality for this work but rather by a separate, private client. Is there any "official" guidance that would define the locality as a client of the engineer's work in this instance?

Here is a parallel example from the legal profession. "Generally, the relation of attorney and client exists, and one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply his possession and use of legal
knowledge or skill."

So, if we bring that legal definition back to engineering, the professional engineer in question has mapped the local floodplain. He has used his engineering knowledge and skill to complete the task. Now, he furnishes his completed flood map to the locality. Does that establish an engineering professional - locality client relationship?

I'm not looking for individual opinion. I'm looking for a credible reference (perhaps an engineering ethics case study or a state engineering regulator document) that would allow one to reasonably answer yes or no to my question.

Thanks!

 

[canwesteng]

I think the locality is the client, and the third party is in effect seconding the engineer to work for them.

 

[Jim6e]

I appreciate the quick input. I appreciate your opinion, and I would love to back it up with a solid reference. Also, just to clarify, the engineer was hired by a private party who wanted a reevaluation of the flood zone around their property. Clearly there is an engineer-client relationship there. However, to revise the flood map, the engineer must gain the approval of the locality. Therefore, he submits his engineering work to the locality for approval. When he does so, does that establish an engineer - client relationship between himself and the locality? If you believe there is, what reference backs up your assertion?

 

[canwesteng]

Ah ok, that changes things a bit. I'd say the private party is the client, and you are supporting them for permitting support, which is pretty typical. Neither NCEES or the board for the states I'm registered in define client but essentially this is the same as any building that permitted and built, and the prevailing practice doesn't consider the AHJ as a client.

 

[Jim6e]

Thanks for the dialogue. Let's go back, though, and look at the situation in the legal realm. In that professional arena, "Generally, the relation of attorney and client exists, and one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply his possession and use of legal knowledge or skill." Thus, the engineer has a paying client - the landowner for whom he is evaluating flood risk. Then, does he establish a second engineer - client relationship when he furnishes to the locality his flood map calculations and request their approval of his work? Understand that changes to flood maps can only be requested / made by two groups - the federal government or a locality. So, the engineer can't change the map on his own. Rather, he has to submit his work / his analysis to the locality and ask them to approve. The engineer has done the work (the service) of reevaluating the flood zone of the locality / for the locality. Typically the locality will not redo the analysis. Rather, they will rely upon the advice / service of the professional engineer and approve or disapprove what he submits. They rely upon his engineering knowledge and skill. As a client relies upon a professional?

 

[phamENG]

No. Locality is not the engineer's client as there is no contractual relationship - written, verbal, explicit, or implied. The landowner is the one requesting the change, and the engineer is at most acting as the landowner's agent.

 

[Heaviside1925]

OP,
Unless the "opinion" or "analysis" is qualified as only being for/used by the private client and/or the professional has knowledge of or can reasonably assume it will be used by others as a professional "opinion" or "analysis" then there would be professional liability as to the quality of the "opinion" or "analysis" to whatever party is using it as long as it was being used for its intended purpose. I don't think the definition of the term "client" is relative to profession nature of the work.

In the same way a geotechnical survey is performed at the request of a private party. If the private party, then in turn provides that survey to an engineering firm for the design of a building at some future date, then that survey would still be required any professional standards or quality assumed to be inherent to a geotechnical survey. Unless the survey was qualified as only being for the private party and for a specified use.

The issue with qualifiers, it that they are open for legal interpretation, so from a future liability standpoint it is better to do a full geotechnical survey or in the referenced example a full area flood map as opposed to a smaller qualified one, with the professional assumption that anyone may use it for its intended purpose.

 

[Jim6e]

PhamENG
I believe there is a contractual relationship between the professional engineer and the locality in the example given. That contractual relationship takes a couple of forms. First, in our state, there is an administrative code / code of conduct that regulates the actions of the engineer. The locality accepts the engineer's flood map submission for review under the "contractual understanding" that he has acted within the bounds of the administrative code of the state. Second, the federal government has laid out standards for how flood map analysis must be conducted. The locality accepts that the engineer has followed those published federal standards. In my state of practice (Virginia), the Supreme Court of Virginia has repeatedly held that a claim for breach of professional duties is properly brought as a breach of contract claim. So, if the engineer has not adhered to the state code or has not followed published federal standards, it seem that the engineer could be sued for... breach of contract.
Best regards!

 

[phamENG]

I don't believe you'll find that those suits were brought by the municipality or other government body unless said government body has hired the engineer for a public project.

Implied in any offer of service by a professional is a commitment to abide by the regulations governing that profession, so yes - if I failed to perform my professional duties, I would be in beach of contact. But that doesn't somehow create a contract with a third party. The municipality wouldn't have standing to bring a case.

If you have a specific example that proves me wrong, please post a link to the judge's decision. I also practice in Virginia and would like to know more if there's more to know.

 

[Heaviside1925]

I agree with phamENG. The courts are saying how a suit can be brought not who is contractually bound. I would ask how in your first post you were concerned with the definition of client and never mentioned contracts. Then in your last post, you never mentioned client and only mention contracts. What is your real question here or are you just wanting to debate?

 

[Jim6e]

Heaviside1925
Thanks for the response. I've gone back and removed the underline from contract in my previous post. I was simply seeking to emphasize the word contract - not to suggest an entrenched position. I apologize.
First and foremost I am concerned about the definition of client. I have only gone on to discuss contracts based upon the posts of others. I was just following the thread of discussion. There is a real case here and this posting is about more than just debate. Nonetheless, questions about contracts and such are also relevant to the issue at hand for me.
Best regards.

 

[Heaviside1925]

OP,
I will too remove my remark. I will say phamENG is a practicing professional in VA and knows their stuff, engineering wise and professionally, so take their advice with the knowledge that they are not speaking offhandedly.

 

[Jim6e]

PhamENG
At the moment, as I ask about the definition of "client", I'm not actually concerned about who has standing to bring a lawsuit. My question is actually related to interpretation of my state's administrative code / code of conduct for engineers. In some planks of that code, the professional engineer has duties to their client. The reach of that responsibility seems to depend in part on who is defined as a client and who is not.

My broad understanding of the law fits with what you say. (I'm an engineer, not a lawyer!) You can sue as a third party but only under limited circumstances. Generally, third parties don't have standing.

In Virginia, a third party can sue if they can show that the “parties to the contract clearly and definitely intended to confer a benefit on him.” Valley Landscape Co. v. Rolland, 218 Va. 257, 237 S.E.2d 120 (1977)

https://law.justia.com/cases/virginia/supreme-court/1977/761064-1.html

Best regards.

 

[Jim6e]

I appreciate the quick and thoughtful posts by several individuals this afternoon. You are providing great food for thought. Perhaps I can be a bit more specific regarding the reason for my question about "client."

In Virginia's administrative code that regulates engineers, there is this subsection:

The regulant shall promptly and fully inform an employer or client of any business association, interest, or circumstance which may influence the regulant's judgment or the quality of service.

As noted in the original post, my inquiry relates to floodplain mapping. A licensed engineer completed calculations and assessment of the local floodplain for a paying client. Then, to have his work approved and adopted, he required the sign-off of both the locality and the federal government. While negotiating with the locality and federal government, the engineer acquired a significant financial interest, i.e., he acquired an interest in properties in the zone covered by his flood mapping work. Specifically he took out a private loan for nearly $250,000 that gave him the option to buy the properties later. Initially, he only had to pay interest on the loan, while the local and federal approval was pending. Did he have an obligation under the section of code listed above to inform the locality and federal government of his acquired financial interest? The answer to that question would seem to depend upon the definition of client. Clearly his paying client should have been informed under the code section, but what about the other parties, i.e., locality and fed? Does that section of code obligate disclosure?

 

[AZPete]

Did his professional opinion render his prospective properties more valuable?

 

[Jim6e]

AZPete,
Yes. After the federal government finalized his new floodplain maps, the engineer sold the first four of them for 110% of their assessed value, much more than he paid initially. At the outset, he acquired an interest in eighteen properties for $224,000, while negotiating for approval of his flood map revision request. He sold the first four properties for a total of $120,000. All eighteen properties were roughly the same size and thus roughly of equal starting value. The total assessed value of the eighteen properties at the time that the engineer acquired an interest was right at $225,000. Today, he still owns many of the properties.

 

[jhnblgr]

Client would be the entity that retained your services.

In some projects there might be owners that you aren’t in direct contract with.

But unless you have a contract with others they are not a client, they can be building departments, government agencies and so on but they would not be your client.

The legal definition appears undefined in the engineering law section however other areas of the state do provide a definition being a party that engages the service.

Often times flood plain studies are verified by independent agencies.

 

[Heaviside1925]

OP,
As stated, was the quality or judgement influenced? Unless the flood map was fraudulent or proven to be erroneous in some way, then there was not a breach of contract. The engineer rendered the services requested, then the contract was fulfilled. Was the client injured, no, was the locality injured, no. From the information provided, the only possible injury occurred to the landowners, who's property was purchased by someone with inside professional knowledge that the land was worth much more than what was being paid. Is this unethical? Yes, could it be criminal? possibly, depending on VA law. If the funds crossed state lines in could even be criminal under federal statue. The landowners may have right to sue under VA fraud or insider trading statues but nothing you have provided indicates a breach of contract.

 

[Jim6e]

jhnblgr and Heaviside1925
The focus of my inquiry is the meaning of the term client in the professional engineering context. In broader or other contexts I can identify high quality reference sources that define the meaning of client. I don't know where to find a similar, well-accepted term for client in the engineering realm.

Black's Law Dictionary provides a general definition of client as follows:
client - a person or entity that employs a professional for advice or help in that professional’s line of work.

Black's goes on to define employ as follows:
employ - 1. To make use of. 2. To hire. 3. To use as an agent or substitute in transacting business. 4. To commission and entrust with the performance of certain acts or functions or with the management of one’s affairs.

Then, in the legal context, here is how client is defined (in Virginia at least, from the Virginia State Bar web site)

https://www.vsb.org/common/Uploaded files/LEOs/1803.pdf

"Generally, the relation of attorney and client exists, and one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply his possession and use of legal knowledge or skill."

This second definition is sufficiently broad to suggest that a professional engineer - client relationship would exist in any context where the engineer furnishes a service which uses his engineering knowledge, including remapping a locality's floodplain.

Now, these are definitions of client in non-engineering contexts. So, where is the authoritative source that defines client in the engineering realm? I am not aware of that reference source.

Finally, in the case that I have raised, the flood map produced by the engineer is erroneous. He delivered the answer that his client needed. However, he did not follow published engineering standards in arriving at that answer. Had he done so, the established, critical "base flood elevation" would likely have been several feet higher - and several feet higher than his paying client needed.
Best regards.

 

[Heaviside1925]

OP,
What determines if someone can be considered a professional engineer? Statute. What is a law? Statute. In this sense using the legal definition, i.e. Black Law Dictionary would be appropriate and high quality. Could there be other definitions of client? possibly but in terms on statute, no.
Using the definitions you provided -
The client of a professional engineer is: A person or entity that employs a professional engineer for advice or help in that professional’s line of work, To make use of, To hire, To use as an agent or substitute in transacting business, To commission and entrust with the performance of certain acts or functions or with the management of one’s affairs.
This seems fairly straight forward to me.
This reminds me of a certain testimony in the 90's "It depends on what the meaning of the word is, is"