Saturday, July 9, 2011

Insider Information

An architect who worked for a governmental agency that reviewed and approved architectural projects left to become a consultant to clients seeking approvals from the very same agency. While the architect violated no policy or law in using his inside information about the agency on behalf of his clients, some of his former colleagues in government thought that his actions violated the confidentiality of his previous employer.

Professional ethics often revolves around the tension between society’s assumption that professionals will keep the public interest uppermost in mind and clients’ expectation that we will look after their needs first. In many cases, these divided loyalties align and professionals meet the desired outcomes of both their clients and the community. However, when a conflict arises, professionals have to decide where to draw the line and to seek a reasonable resolution.

An example of that occurs in this case, where an architect with inside knowledge of how a public agency works uses that information to benefit clients seeking the agency’s approval. On the positive side, the architect’s knowledge can make the approval process go more smoothly for both sides, making sure that the agency has the information they need in order to make a timely decision, which of course also benefits the client. However, there also exists the possibility that the architect will use that knowledge to help clients push to the limit what the agency will accept and even skirt requirements for which there remains room for interpretation.

The AIA’s code of ethics alludes to this possibility with rules such as: “A Member shall not render professional services if the Member's professional judgment could be affected by responsibilities to another project or person, or by the Member's own interests, unless all those who rely on the Member's judgment consent after full disclosure.” In this case, the architect has fully disclosed his former government employment to clients, who no doubt commissioned him in part because of it. But this situation does raise questions about the architect’s divided loyalties. Does he retain a sense of responsibility to his former employer, which might disadvantage his clients, or feel responsible to his clients and so possibly do a disservice to the public interest that the governmental agency seeks to protect?

A related rule in the AIA Code of Ethics suggests another potential problem with this situation. “Members shall not knowingly disclose information that would adversely affect their client or that they have been asked to maintain in confidence.” Here, the architect has confidential information about how the agency works and makes decisions as well as confidential information about what his clients intend in terms of meeting – or not meeting – the requirements the agency tries to enforce. The non-disclosure rule in the AIA Code of Ethics, however, expects architects to reveal something held in confidence that might be unlawful or a violation of a legislated policy or judicial ruling. Knowing what the law allows or doesn’t allow remains the competitive advantage of this architect, although he treads a fine line between the government seeking to enforce the law and clients who might try to shirk it.

The American Bar Association specifically prohibits attorneys from “represent(ing) a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.” The architectural profession would do well to institute a similar rule. At stake is the public’s faith in our ability to keep the public interest in mind, without which we cease being a profession.

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