April 2006 ISSUE
Professional practice & Ethics Corner
APEGGA members with professional practice or ethics questions are welcome to send them to Ray Chopiuk, P.Eng., Director, Professional Practice, APEGGA, 1500 Scotia One, 10060 Jasper AVE NW, Edmonton, AB T5J 4A2; fax 780-426-1877; e-mail rchopiuk@apegga.org.
Q I believe that as member of APEGGA, I am supposed to advise another APEGGA member if I review his or her work in a way that comments on the other member’s professional conduct or technical competence. Does this requirement also apply to a situation where a lawyer has asked me to conduct such a review and submit a report for a case he is working on?
A The amplification and commentary under Rule 5 of the Code of Ethics, as noted in APEGGA’s Guideline for Ethical Practice, does state that APEGGA members should undertake an assignment to critique the work of another member only with the knowledge of, and after communication with, the other member. This is normally done as a professional courtesy and so that the reviewer has an opportunity to become aware of any additional information that may be relevant, before reaching a conclusion regarding the other member’s conduct or competence.
This requirement does not apply, however, where a member has been retained
by a lawyer to conduct a review and provide a report on another member’s work
in confidence. Divulging the lawyer’s request to the other member could
jeopardize the case that the lawyer is preparing.
Members need to be careful in preparing supposedly confidential reports because
the reports may not necessarily remain confidential. A recent APEGGA discipline
case illustrates this point.
An APEGGA member was retained by a lawyer to review and comment on technical reports that were issued by an APEGGA permit holder and its professional employees and officers. Interestingly enough, the member’s task was to examine and report on whether the permit holder’s technical reports contained any violations of APEGGA’s Code of Ethics.
The Discipline Committee Panel found that the member made comments in his report which unjustifiably impugned the professional reputations of the other members. The panel noted that although the reviewing member may have believed that his opinions would be held in confidence, it did not excuse the member’s unjustifiable attribution of ulterior motives to the other members in their preparation of the technical reports. The member’s conduct was found to be unethical.
In this instance the member’s report was included as part of a submission in a civil suit and, as a result, became public. The member said he understood that if his report was to be used in litigation, an application would be made to have the file sealed. That did not happen.
APEGGA members are expected to conduct themselves with fairness, honesty and good faith at all times. There are two lessons that can be learned here. The first, and more important one, is the seriousness of making unsupported critical comments about other members. The other is that professional members must be fair and unbiased, regardless of whether their opinions might be treated as confidential.