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!

 

[phamENG]

So the case changes a little.

There is, at least, an appearance of a conflict of interest here. But that doesn't mean that anything nefarious happened. I'm not aware of a requirement to report ownership in a piece of property before providing civil engineering services that improve that property in the Commonwealth. I have heard from colleagues that a plan reviewer rejected a drawing then did for a house remodel and asked them to have another engineer take responsibility, but that's uncorroborated hearsay as far as it goes for this conversation, and I'm not sure if that official was acting within their proper authority or not. It's not a case that comes up too often - not many of us are fortunate enough to make major modifications to our property that require our own services much. But back to the point - just because you may benefit doesn't mean you'll lie about it. The engineer absolutely should have disclosed any financial interest in the success of the project, but that has nothing to do with duty to a client, it has to do with duty to the health and welfare of the public. If the decision of a $450k profit vs a $250k loss hinges on whether or not I consider a few data points or whether I round an answer up or down...the regulator/zoning officials who might consider my work product as they reach their decision should be aware of that potential influence.

As for a definition of client, Black's Law dictionary is probably as close as you'll get. You could try reaching out to the National Society of Professional Engineers. If anyone has something engineering specific, it would be them.

But in this case, I would still say that the municipality is NOT the client. The client was, presumably, the landowner. They engaged the engineer, and the engineer did the work. Once it gets submitted to the city, that's it. They can ask questions and review, but it's in the hands of the City's engineers at that point. They could hire a third party reviewer if they don't have knowledgeable staff, but they didn't hire or employ the first engineer (at least not as laid out in your description).

Regarding the bar association definition, the first engineer never furnished advice or a service to the city. He did so to the original land owner. What that landowner then did with it was his prerogative under whatever terms they had agreed to. I provide structural designs to my clients. They then pass them on to their clients or on to the city for review, comment, and approval. The city is decidedly not my client and I owe them no duty owed by a professional to his client. But I do have a duty to disclose any influence that may tempt me into sacrificing my commitment to securing the health and welfare of the public that may use the structures I design. That is the case regardless of who is considered my client.

 

[SWComposites]

The entity paying the engineer is the “client”. It should be clear. I agree completely with phamENG on this.

The same with attorneys. If one give me some advice in a bar over a beer, I am not his client, unless there is a contractual and paying relationship.

 

[Jim6e]

phamENG
I really appreciate the following portion of your most recent post:

The engineer absolutely should have disclosed any financial interest in the success of the project, but that has nothing to do with duty to a client, it has to do with duty to the health and welfare of the public. If the decision of a $450k profit vs a $250k loss hinges on whether or not I consider a few data points or whether I round an answer up or down...the regulator/zoning officials who might consider my work product as they reach their decision should be aware of that potential influence.

As for a definition of client, Black's Law dictionary is probably as close as you'll get. You could try reaching out to the National Society of Professional Engineers.

From the discussions on this forum over the past 24 hours, it's clear that there is no obvious engineering reference source that I am missing, in which I might find a conclusive definition of the term client. However, as you state, even if the engineer did not have any obligation to disclose his interest to the authority having jurisdiction because they might not be his client, he did have a duty given his overarching duty to the health and welfare of the public. In Virginia's Administrative Code, the first statement regarding engineering conduct is "The primary obligation of the regulant is to the public."

Your suggestion that I reach out to NSPE is an excellent one. I will do that now.
Best regards.

 

[CWB1]

Companies with huge vested-interests submit engineering reports to request regulatory changes every year, that doesnt mean they have a business relationship or legal obligation to the govt. Regulators are free to ignore their request and regularly do so without providing justification.

Congress exempted, in the US all federal, state, and local govt employees, contractors, and subs are legally required to report existing conflicts of interest and forgo anything that could create new conflicts. If your client was contracted by govt for flood maps then you'd have an issue, but it doesnt seem like that's the case here.

As mentioned, your client is the customer paying you (or to whom you've donated your time). The limit of your activities is controlled by them. Many engineers have been sued for violating contracts which required they remain anonymous for a customer's prestige, and for violating NDAs that didnt allow talking to regulators. If your customer does something illegal you can contact the appropriate regulator and claim whistleblower protection, but that's irrelevant if your client isnt doing anything illegal.

The attorney-client relationship is a unique animal quite unlike other professions so I'd be cautious of comparisons. Attorneys for example cant simply quit and leave clients without representation mid-case, they have to request the court's permission and are often forced to finish them despite hostile, non-paying clients.

 

[Jim6e]

CWB1
Thank you for your input. You state the following:

"in the US all federal, state, and local govt employees, contractors, and subs are legally required to report existing conflicts of interest and forgo anything that could create new conflicts."

Are you able to point me to references that support this statement? I would be interested to review it directly.
Thank you.

 

[SWComposites]

James - its long past time that you disclosed your role / interest in these hypothetical questions.

 

[Jim6e]

SWComposites
I'm happy to disclose my role / interest in these non-hypothetical questions. What would you like to know?

Here is what I will tell you initially. If you feel I need to disclose more, please indicate what you feel I have missed.

I am a licensed professional engineer in Virginia. In our administrative code of conduct, if I see something of concern, i.e., in the actions of another professional engineer, I am required by code to say something.

I have seen something that I believe to be of concern.

A professional engineer in my community undertook flood map calculations locally. He was contracted to do so by a private client. However, to have his calculations accepted and the map revised, the engineer had to submit his calculations to the localities here and to the federal government for review and approval. While advocating for approval of his flood maps before the localities and the federal government, the engineer acquired an interest in eighteen properties covered by his flood map revision request. I believe that he should have disclosed his acquired interest to the localities and to the federal government while engaged in negotiations. In part, I support my position by pointing to the following section of Virginia's administrative code:

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.

Based upon my concerns, I reached out to the engineer in question - twice by email and once by speaking on the phone with his office assistant. I made the reason for my contact clear. The engineer did not respond to my requests to speak. So, I filed a formal complaint with the state licensing board. In my complaint I asserted that the localities and the federal government were his clients, based upon the Black's Law Dictionary definitions that I have provided earlier in this thread.

Recently, the state licensing board has responded to my complaint with an initial response indicating that, from their perspective, the engineer was not required to disclose his property interest to the localities and federal government because they were not his clients. In short, they disagree with the broad reach of the Black's Law Dictionary definition that I provided.

Based on the suggestion in this blog from phamENG, I reached out to the NSPE yesterday to ask about definition of the term "client" in our field. Included below is my inquiry and the "for information purposes only" response received this morning from a lawyer at NSPE.

*****
My inquiry (from 7/14/2024)
Hi,

I have a question related to engineering ethics, and I would appreciate any guidance that you can provide. I am an NSPE member, and my membership number is ****** [number withheld from this post for privacy].

I would like to know the accepted definition of the word “client” as appropriate for use within codes of engineering ethics.

I am a PE within Virginia, and my state’s administrative code includes the following section:

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.

Is there a nationally-accepted engineering definition of the word client that should be applied to this code section? Is there possibly a narrower Virginia-accepted engineering definition of the word client that should be applied to this section?

I am aware of the following definitions from Black’s Law Dictionary. Yet, I realize that Black’s is a broad source of terminology. I am simply at a loss to know if the engineering field uses a different, accepted definition. If so, what is that definition, and what is the source of that definition?

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.

Thank you!

NSPE's response (received 7/15/2024)
Actually, the courts have made the definition much broader. A client is any person or organization to whom/which you have provided professional service or advice, WHETHER OR NOT YOU BILLED OR GOT PAID. That’s one of the many reasons that the internet is so dangerous: advice given in a blog post, for example, (without sufficient disclaimers) could be received by a party completely unknown but who goes on to rely upon your advice. Similarly, a question over the back of the pew at church from a member of the property committee could create a client.

 

[SWComposites]

Ok, you have filed a complaint with the state board. You have fulfilled your duty to the public.

Sure seems there is some other unstated reason for why you want to pursue this further.

And that NSPE response sounds like a CYA response from one of their lawyers.

 

[Jim6e]

SWComposites
Yes. There is an additional reason why I want to pursue this further.

The flood maps of the engineer are wrong. They contain technical mistakes. Additionally, once his maps were approved, he sold some of his eighteen properties to non-profit entities in my community. Those entities have subsequently built low-income homes on the properties. There are now eight families, eight low-income homeowners, who live in houses that are most likely built several feet below what should be considered the safe "base flood elevation." From my perspective, these homeowners have already been financially harmed by the actions of the engineer in question. They also do not know that they are probably at elevated risk of flooding.

So, I am concerned about others in my community, and thus I do not feel that my duty to the public has come to an end. Rather, I have expert knowledge, and I feel it is my duty to use that knowledge to protect the health, welfare and safety of the public. In the administrative code of Virginia, that is my paramount duty.

In regards to the NSPE answer, perhaps I should not take it as authoritative. If not the NSPE answer, where should I look for an "engineering-accepted" definition of the term client? Clearly the Virginia state board seems to use a narrower definition. However, to date, they have provided me with no basis, e.g., case history, to support their apparently narrower definition. So, from one perspective, I could view their definition of the term as "arbitrary and capricious."

Best regards.

 

[RenHen]

I feel like the definition of the word client is an odd place to get hung up here. From my reading of this thread, it seems like you believe that an engineer submitted incorrect information under their seal while having an undisclosed financial interest in their incorrect work being accepted. I'm not a lawyer, but I don't think it much matters who the client is in a situation like that. Personally, I would be asking the NSPE what to do about that specific instance, not asking them secondary questions about the legal definition of terms that may or may not be relevant to an ethics case.

 

[Jim6e]

RenHen
Thanks! I was getting hung up on "client" because the state licensing board indicated that a reason they are prepared to say the engineer did nothing wrong is because the localities and the federal government are not his clients. I was surprised when they verbally told me that last week. As you suggest though, getting hung up on the minutiae of this term is a bit "beside the point". I fully agree with you that there is a bigger picture here.

To that end, if we all were to accept that the localities and the federal government are not clients, then why would the state board, alternatively / separately, not flag the engineer's actions under two other sections of the Virginia code as provided below?

The regulant shall be truthful in all professional matters and shall include all relevant information in professional reports, statements, or testimony, which shall include the date indicating when such information was current.

Except when appearing as an expert witness in court or in an administrative proceeding when the parties are represented by counsel, the regulant shall issue no statements, reports, criticisms, or arguments on matters relating to professional practice that are inspired by or paid for by interested persons, unless the regulant has prefaced the comment by disclosing any self-interest and the identities of all persons on whose behalf the regulant is speaking.

 

[AZPete]

Your complaint to the Board would have had two elements: 1) incompetence; 2) failure to disclose personal interest in a professional engagement.

 

[Jim6e]

AZPete
Yes. It did. The Board is prepared to reject my assertions on both of those points.

On the incompetence element, Virginia code states:

The professional shall adhere to the minimum standards and requirements pertaining to the practice of his own profession, as well as other professions if incidental work is performed.

The engineer did not apply a published federal standard for how to confirm the accuracy of his calculations. The standard says that if historical flood data is available, it "must" be used to confirm the accuracy of the modeling. Data was available, but he never showed that he used it. The federal government informed him three times in writing that the data existed, but he never submitted a model that was evaluated against that data. Then, as a result of not performing the comparison against data, I have concluded that he delivered the wrong answer. A professional engineer working for one of the localities also came to the same conclusion. Recently, in a very similar mapping case, the federal government has confirmed the expectation of comparison against historical flood data.

 

[AZPete]

So...what happens if a second professional submits his calculations for city/federal approval and which are at variance with the subject engineer's? Seems one opinion would emerge as applicable. In which case, a correct mapping that places the properties behind the 8-ball would then have a community of harmed individuals and entities. In that case, would the Board act?

 

[SWComposites]

So have you filed an appeal or complaint with the locality or federal govt agency that approved the alleged incorrect flood maps? If so, what was their response?

Unfortunately, the whole flood plain map and federal flood insurance issue has been a political mess for a long time.

 

[Jim6e]

AZPete,
It turns out that, since the time when the engineer's maps were approved, the federal government has undertaken their own technical review of all the flood maps in the region. They have published their draft updates of the maps. Their updates are broadly in line with the map produced by the engineer in question. However, I argue that the federal draft map is also wrong. Why? Because the federal contractor who produced the map made the same mistake as the engineer. They did not use available historical flood data to confirm the accuracy of their map. Earlier this year, one of the draft federal maps opened for public comment. I submitted a formal, technical appeal of the draft map. I said that my appeal was valid by pointing to the federal regulatory standard which the federal contractor (and the original engineer) had overlooked and to the available flood data. The federal government has since responded to my complaint and acknowledged its accuracy. They have validated my appeal. The federal contractor is now in the process of redoing their calculations. I do not know how much their calculations will change. I do not know when updated draft maps will be released for public review. However, the federal response to my appeal confirms that the engineering standard should have been followed and quality, historical flood data was available for use in confirming flood model accuracy.

 

[Heaviside1925]

OP,
Again, you are trying to create a definition of client that is just not there. The engineer in question provided their services to their private client. The locality (as far as you have said) never solicited advice from this engineer, ergo, they are not this engineer's client.
I am not meaning to be critical but in your complaint to the board and your email to NSPE, if I am reading this with no context, I am understanding someone who doesn't understand what the word client means. That said, I understand your frustration and I too would be concerned if an engineer was operating as your stated in my community. To truly illustrate your concern, I would relinquish your grasp on pigeonholing the word client to being some special professional definition and just focus on the facts. As was stated by others previously, what you are claiming engineer did may be unethical but may or may not be illegal. You have done your duty as a professional engineer and reported this to the board, you can't do anymore professionally, so now, what can you do as a citizen? Bring you concerns to the locality because they enjoy qualified immunity in most cases, they can change their minds on whether or not to accept the engineers finding. Bring your concerns to the local district attorney. The courts as a whole tend to frown on what is essentially insider trading. The local DA may be interested in investigating this. Bring your concerns to the landowners who sold or in the process of selling their land to the engineer, because for any civil action to take place, they are the only ones being harmed directly in this case. If the locality, the DA, the landowners all dismiss you, then you can always bring it to the press / media.

 

[AZPete]

Sounds like the Board would have cause to strike the engineer. If the feds advised the engineer to use a mandatory and available resource, twice, and he did not, then the personal interest in parallel most definitely comes into play whereas in the generic sense it would have been a technicality, and arguable. In this instance, it arguably becomes a motivator to conclude in a fashion supporting the personal interest. Moral of the story: if you're going to color outside of the lines, best to do it in invisible ink.

 

[Jim6e]

SWComposites
I, and others, have been in touch with the federal agency (FEMA). They have said several things: 1) The window for appeal on the engineer's work has passed. 2) Even if he failed to disclose his conflict, they don't care. They don't ask for or consider conflicts-of-interest in their review of flood maps. 3) If I think the engineer's map is wrong, I am welcome to submit a new study.

While I am a licensed, professional engineer, flood mapping (and civil engineering more generally) is not my area of expertise. So, I would need to hire someone else to do the work. That seems to be an unfair burden upon me. Thus, we turn to the draft flood maps under development by the federal government right now. I figure, the feds are revisiting the maps themselves right now. I will engage in the proper process there, and try to get them to publish accurate maps. As long as I stay on top of the process, there should be no cost to me.

In terms of the localities, there is broad indifference to the issue. The engineering staff at one impacted locality has said that they largely leave map review to the feds. If the fed approves an application, the locality will approve it. The engineering staff at the other locality was upset by the work of the original engineer. They disagreed strongly with technical elements of his map work. Yet, the professional staff of the locality, above the engineers, dismissed the concerns of their own engineers and sent an approval to the feds anyway. Now, in the last 12 - 18 months, all four of the engineers working for that locality in the arena of stormwater management and flood mapping have left for other employment. Basically, that locality has lost all of their historical knowledge and in-house expertise in the flood zone arena.

Finally, you are 100% correct about the "mess" of federal flood mapping. At the time of the engineer's original work, the inspector general of the Department of Homeland Security (the home of FEMA) published an audit of FEMA's flood mapping efforts. They identified pervasive quality control issues and a widespread failure to apply published quality control standards. You can read more about those problems here:

https://www.oig.dhs.gov/news/press-...s-femas-management-its-flood-mapping-programs

https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-110-Sep17.pdf

 

[Jim6e]

Heaviside1925
Thank you for sharing your additional thoughts. Broadly I agree with you and others on this forum. Let's not get hung up on the meaning of the word client.

I especially appreciate your suggestions on next steps. I had some of those steps in mind but not others. You have broadened my thinking, and that's a great reason to have posted here.

Best regards.