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RE: Ethical Responsibility/Continuing Education, Ethics, & Heartburn

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Nels,
As a follow-up to my last message, Arnold called me this evening and I
spoke with him on this matter. I will paraphrase and please forgive me
if it does not come out exactly as Arnold had said it. I promise still
to seek the information he sent me which is pretty extensive.

First, this issue is a California issue at this point as you will see
shortly.

To confirm what Arnold told you and what the engineers in other states
agree upon - an engineer who is hired by a client (other than an
attorney) is required to notify his client of an unsafe condition and to
give his client a reasonable period of time to mitigate the hazard. If
the client refuses or delays, the engineer has an obligation to protect
the life-safety of those who occupy the building by notifying the
occupants and/or the local building official.

The attorney privilege issue started many years ago. California had a
state senator - Leroy Green who was also a Civil or Structural Engineer
in the state. Green was contacted by Arnold and other interested parties
in California who asked Green to clarify the law when the client was an
Attorney who hired the engineer to produce the work for a case building
for the attorney's client.

Green presented the question to a Legislative Analyst who is frequently
used by those in state government to interpret laws. The Analyst
reviewed the information submitted by Arnold and concluded that the
engineers report which identifies a hazardous condition was actually the
Attorney's work product and as such was protected by the Attorney-Client
confidentiality. In this case the Legislative Analysis concluded that
the engineer was not obligated nor should he disclose any of the
information contained within the report.

Some years later, Arnold, who was not satisfied with this decision,
contacted the Attorney General and spoke with his Administrative Aid
(Christine somebody or other who Arnold could not recall on the spot)
agreed to obtain the AG's ruling on the issue where life safety is at
risk. So far, the AG has not issued a response to Arnold and the
requirements in California protecting the information as the Attorneys
work product is still in force.

Arnold assumes that the issue is the same in other states as the
Attorney's work product and Attorney-client confidentiality is
vehemently protected as it is in California. Although the laws (Attorney
work product vs. Professional Business and Conduct codes) conflict, the
state government holds the Attorney's client confidentiality to a higher
standards.

I asked Arnold why the information received by the attorney was not
required to be disclosed. His response was that first, it need not be
disclosed if the case is not litigated. Second, the work is not
"evidence" but "attorney work" and this need not be disclosed any more
than the attorney's clients conversations.

I hope this helps to placate you for the while until I can find the
documents, scan them and post them to the Structuralist so that you can
understand any issues I have omitted. Arnold is not an advocate of
Attorney confidentiality when lives are at stake and it is his intent to
have the Attorney General see the conflict in the codes and to clarify
it for other engineers to follow.

Finally, it is hot in Los Angeles, and I don't want to inconvenience
Arnold as any of you who know him can understand how you would not want
to upset Arnold - the reason for his success as an expert witness:o)
Seriously, Arnold is one of those engineers who has devoted a great deal
of his professional career to helping others. Unfortunately, he is not
computer literate no matter how much I try to change that. I think he
would have a lot to offer those of us on this List.

I met Arnold some twelve years ago when scared by the threat of a first
law suit where I was named as a cross-complainantSEAOSC office manager
Ed McDermott, recommended I contact Arnold and I did. Arnold started by
reprimanding me for not doing a better job of establishing contractual
agreements (more fearsome than the lectures I used to receive from my
own father) and then spent as much time as was necessary to advise me
just how to get out of the trouble I was in - which I followed and was
later dropped from the suit. Since that day, Arnold and I have been very
close friends. As with the others I have mentioned who have done so
much for our profession, those in California should recognize Arnold
Bookbinder for his contribution as author of the first SEAOC Ethical
Conduct manual. He is a tough individual in and out of court (his
primary work has been as an expert witness for most of his career).
Personally, Arnold Bookbinder is one those people I have a great deal of
respect and appreciation. His actions are not motivated by greed or by
the side who pays him, but by his personal ethics and values. It's tough
in today's world to live by principle and many engineers have been under
the wraith of Arnold as an expert witness. Still, few of them can ever
admit that the information Arnold reported was not accurate or that it
represented a "spin" to satisfy the side that paid him. As he retires,
it is my pleasure to introduce him to those outside California as I am
sure Arnold will continue to work behind the scenes for the benefit of
those of us in practice.

Dennis S. Wish, PE



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