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Ethics: Codes of Conduct for Design Professionals Part 2 – Common Ethics Requirements

By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT posted 03-29-2024 04:13 PM

  
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This is the second in a three-part series on this blog addressing ethics for design professionals, comprised of (a) Part 1 – Introduction and Ethical Dilemmas; (b) Part 2 – Common Ethics Requirements; and (c) Part 3 – Ethics and Business Practices.
Who Establishes Ethical Obligations for Design Professionals?
Binding requirements for design professionals’ ethics may arise from a variety of sources, including (1) Ethical obligations in laws and regulations governing the practice of each regulated design profession; (2) Codes of conduct and ethics obligations established by non-profit organizations representing the design professional industry; (3) Design firms’ published codes of conduct for their employees; and (4) Mandatory codes of conduct established by project owners and other entities that retain design professionals, regardless of whether the design professional is an employee of the project owner or a consultant.
Every state and territory in the United States has laws and regulations governing the practice of the design professions, each of which includes ethics requirements. The National Council of Architectural Registration Boards (NCARB) publishes model statutory language governing the practice of architecture in the United States.  NCARB Model Rules of Conduct (revised in 2023), is seven pages long. Similarly, the National Council of Examiners for Engineering and Surveying (NCEES) publishes suggested language for state and territorial laws and regulations governing the practice of professional engineering and land surveying in the United States. Section 240.15 (“Rules of Professional Conduct”) of NCEES’s Model Rules (revised August 2022) presents approximately two pages of model language for statutory ethics requirements.
However, the author is not aware of any state or territory having adopted NCARB’s or NCEES’s model language in their entirety. Rather, each jurisdiction has its own, unique requirements, although most follow the general intent of the model statutory language. Unfortunately, the ethics requirements for each jurisdiction are uniquely titled and located within the statutory language. Therefore, ethics requirements may not always be as easy to find in a given jurisdiction’s requirements as one might expect. Often, a modest extent of diligent searching is necessary to locate ethics requirements.
As just one example, for all design professionals in New York State, the Rules of the Board of Regents: Part 29 (“Unprofessional Conduct”), set forth ethics obligations for architects, professional engineers, geologists, land surveyors, and landscape architects practicing in New York State. However, the ethics obligations are divided into two separate parts: the first (Section 29.1) applies to all licensed professions in the state, including design professionals as well as other work areas and professions; and the second (Section 29.3) applies only to the design professions.
Many non-profit organizations representing various constituencies of the design professions have codes of conduct or ethics requirements with which members of that organization must comply to remain in good standing. While such requirements do not carry the same weight as do ethics obligations of laws and regulations governing the design professions, they are nevertheless extremely important because they represent how the industry, or a designated portion of it, expects its members to conduct themselves and their business. In many cases, codes of conduct published by such organizations help to set expectations of appropriate behavior for the entire industry. Just a few examples, presented below in alphabetical order, include:
·       American Council of Engineering Companies Professional and Ethical Conduct Guidelines. ACEC represents the entire consulting engineering industry in the United States, regardless of engineering discipline. Consulting engineering firms are members of ACEC, rather than individuals. Thus, ACEC’s guidelines for ethics are binding on all employees of its member firms, regardless of whether such employees are licensed design professionals.
·       American Institute of Architects 2020 Code of Ethics and Professional Conduct. AIA represents the entire architecture industry in the United States. Typically, to be a full member of AIA, one must be a registered architect (RA), although not all RAs are members of AIA. AIA is likely the largest single organization representing a given design profession, and its code of ethics is binding on all AIA members.
·       American Institute of Professional Geologists Code of Ethics. AIPG is the leading organization representing professional geologists in the United States and its code of ethics applies to all its members. In addition, jurisdictions that require licensure of professional geologists (PG) also have ethical obligations in their associated laws and regulations.
·       National Society of Professional Engineers Code of Ethics for Engineers. NSPE represents the interests of licensed professional engineers (PE) in the United States, regardless of the type of employer. NSPE is the leading entity advocating for issues relative to engineering licensure in the United States and its code of ethics is binding on all NSPE members. Most NSPE members are PEs, although the organization includes individuals (“engineers-in-training”) who have passed only the first part of the engineering licensing exams and limited numbers of professional land surveyors. Not all PEs are members of NSPE. NSPE includes a Board of Ethical Review, which serves as an advisory panel for NSPE on engineering ethics-related matters.
·       In addition, many other engineering societies have their own codes of conduct and ethics, not expressly cited here. NCEES publishes its Summary of US Engineering Societies’ Codes of Ethics.
Many other organizations representing design professionals have adopted similar, mandatory codes of conduct for their members. Of the codes of ethics listed above, those of AIA, AIPG, and NSPE are quite detailed and, in many instances, specific. They represent a model of conduct for their respective constituencies. While ACEC’s guidelines for professional conduct are perhaps somewhat less detailed, they are, nevertheless, remarkably similar in many respects to the other indicated organizations’ ethics requirements, especially those of NSPE. Furthermore, AIA’s code of ethics is generally aligned with NCARB’s model statutory ethics language for architects. Likewise, ACEC’s conduct guidelines and NSPE’s code of ethics are generally aligned with NCEES’s model language for ethics statutes for engineers.
Interestingly, most of the codes of conduct listed above require, “the highest standards of honesty and integrity” and include words requiring their members to act with, “honesty, impartiality, fairness, and equity, and… [to] be dedicated to the protection of the public health, safety, and welfare” (these excerpts are from NSPE’s Code of Ethics for Engineers).
n addition, many design firms have written, mandatory codes of conduct and ethics applicable to all employees of the firm. Furthermore, many other organizations, such as project owners, have their own written ethics obligations binding on their employees and, perhaps, consultants and contractors retained by that organization. Employees, consultants, and contractors affected by such codes of conduct and ethics should review such written requirements on a regular basis, not less often than annually, and comply in all respects with their obligations.
Common Ethics Requirements for Design Professionals
While specific ethics requirements vary by design profession, licensing jurisdiction, non-profit industry organization, and employer, presented below are many of the most common ethics requirements for design professionals. Typically, design professionals are responsible for:
1.     Holding paramount health, safety, and welfare of project occupants, users, and the general public in all activities.
2.    Performing services only in the individual’s areas of competence.
3.    Issuing public statements and reports only in an objective and truthful manner, and including all relevant and pertinent information.
4.    Acting as a faithful agent or trustee for each employer and client.
5.    Avoiding deceptive acts.
6.    Exercising direct supervisory control and maintaining responsible charge over project activities for which the individual is responsible. For additional information on this critical topic, see Responsible Charge: An Essential Concept for Design Professionals, previously published on this writer’s blog.
7.    Advising design professionals believed or suspected to be in violation of statutory requirements or ethics lapses to comply with such requirements and, when a violation is believed to have occurred, reporting observed misconduct to the applicable licensing board, non-profit industry organization, or employer publishing ethics requirements, or a combination thereof, as applicable.
8.    In addressing matters of public policy, clarifying where appropriate, the identity and interests of parties represented by the design professional.
9.    Not falsely maligning or indiscriminately criticizing other design professionals.
10.  Not accepting financial or other valuable compensation from contractors or suppliers of materials or equipment.
11.  Not accepting remuneration from more than one party on the same project without the knowledge and acceptance of all parties.
12.  Not accepting remuneration from any party that might influence the design professional’s judgment without divulging such remuneration to appropriate parties.
13.  Not misrepresenting qualifications, experience, and capabilities.
14.  Not knowingly associating with others who are engaging in business or professional practices which are dishonest or fraudulent in nature.
15.  Not accepting project remuneration from a public entity for which the individual serves in a public service role.
16.  Performing design professional services in compliance with laws, rules, regulations, codes, applicable permits, and lawful orders of authorities having jurisdiction, to the best of the design professional’s knowledge and belief.
17.  Performing design professional services in accordance with applicable design standards and the prevailing or required standard of care.
18.  Conducting themselves responsibly, ethically, and lawfully to enhance the honor, reputation, and usefulness of the associated design profession.
Conclusions
Statutory requirements governing the practice of the design professions include requirements for ethical conduct applicable to all licensed design professionals in the subject jurisdiction. Furthermore, many non-profit organizations representing certain elements of the design professions have codes of conduct applicable to all individuals and firms (and their employees), as applicable. Many employers also have published codes of conduct for their employees, and some entities that retain design firms have contractual requirements or policies regarding ethics binding on their consultants and contractors. It is essential that design professionals be aware of and comply with their various ethical obligations.
The forthcoming final installment in this series on this blog will be Part 3 – Ethics and Business Practices.
Acknowledgments: The author gratefully acknowledges the assistance of the following, who kindly reviewed and commented on drafts of this article: Jerry Cavaluzzi, Esq, of Westchester County, NY, who is Chief Risk Officer and General Counsel for Kennedy/Jenks Consultants, Inc.; and James K. Lowe, Jr., Esq., P.E. (VA, emeritus), who has more than 45 years experience in the A/E industry. The author is solely responsible for the content of this article.
Copyright 2024 by Kevin O’Beirne
The content of this blog post is by the author alone and should not be attributed to any other individual or entity.
The author of this blog post is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with a qualified, experienced attorney.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 35 years of experience designing and constructing water and wastewater infrastructure for public and private clients.  He is the engineering specifications manager for a global engineering and architecture design firm.  He has been a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter.  He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area.  Kevin O’Beirne’s LinkedIn page. 
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Dave - Thanks, as usual, for taking the time to read and comment on the article. I think there is something of a difference between the design professional's compliance with the applicable standard of care (which does not require perfection) and the design professional's obligations under its membership in certain non-profit professional organizations to exhibit the highest standards of honesty, integrity, and professionalism. In short, the standard of care refers to the overall quality of the design professional's services, whereas the organizational code of conduct requires that the design professional be as honest as possible at all times and to conduct themselves with integrity at all times. As I view it these are separate obligations and are entirely compatible with each other. In other words, a design professional must always be honest, but, according to the standard of care, they are allowed to make an occasional (probably somewhat minor) mistake in performing their professional services in good faith. Some mistakes may be permissible, while dishonesty and a lack of integrity are not. 

>Interestingly, most of the codes of conduct listed above require, “the highest standards of honesty and integrity”<

Interestingly indeed. Since phrasing such as “highest standards” is not found in the standard of care wording, and is generally uninsurable when found in an owner/A/E contract.