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<Favero Greenforest>
posted
I recently performed an evaluation for clients regarding two trees that failed. I advised my clients that they may not like my opinions, but like them or not, my fee would be the same. They agreed to the terms I presented and I prepared a report of my findings.

Well, they did not like my opinions at all and are now withholding payment while they dig for additional evidence that will support their position (the trees failed and it is the CityÂs fault).

Since they have not paid for my services, is my report still my property, and is it ethical to attempt to sell this report, and my opinions, to whom ever will pay for them (the City).

I would appreciate hearing your opinion.

Favero
 
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<Scott Cullen>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:

A tough one Favero.

ASCA SPP 4.3(H) allows you to withdraw from an assignment if you're not paid in a timely fashion. I'd say it's pretty clear that that means you don't need to do further work. It's not clear from this section alone which other duties survive.

The principal concern is the duty of Confidentialty. SPP 4.5 imposes this duty whenever information obtained in the conduct of your practice can injure some party to whom the duty is owed... that most usually means clients. I don't think the duty expires at the end of the assignment; it's ongoing; think of the implications: "I need to bill you again this week so that the assignment is ongoing and my duty of confidentiality survives. Well yes it's been 5 years but this isn't blackmail." The duty survives after the work is done.
4.5(A)(i) would allow you to reveal the information if there was risk to public safety but you indicated the trees already failed. 4.5(a)(ii) would allow you to reveal the information to establish a claim or defense, so you could reveal it in small claims court or in the newspaper if they claim your incompetent. But that's not selling the information for your own benefit. 4.5(A)(iii) would allow it if you were called to testify as a fact witness, but that's not the same as selling your services as an expert witness.

I don't think you have a duty that would preclude you from undertaking a new assignment for some other party like the city and then you'd be discovering the same facts in the conduct of a new assignment. I don't know how comfortable I'd be soliciting the city. If they come to you it's less troubling. But 4.3(B) precludes you from accepting compensation from two parties with conflicting intrests unless they both agree to the arrangement. So, you'd need to relinquish any claim to payment from the first party, stop any action to recover and not accept a payment if they sent it (either innocently or trying to create a conflict for you after the fact).

I would certainly put the client on notice that you feel the assignment is terminated before you accept another assignment from the city. You might not want to terminate the assignment until you've exhausted reasonable options to get paid. Maybe they won't come up with other evidence and just decide to pay you. Maybe they will find other evidence and come back and say "please incorporate this new evidence into your analysis and update your report." And you'd say "happy to as soon as the initial report is paid for."

I've assumed here that additional evidence, if any, is of the sort that is outside the scope of stuff your investigation should have uncovered and considered.

If it's a few hundred bucks walk away and write it off. Don't create tough situations for youself. If it's a few thousand, your business decision varies but tread very carefully through the ethical issues.
 
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<Paul M Davis>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:

I'm a little more hard core here. The way I see it you have a contract agreement. You present your findings to them and they agree to pay for them. The fact that they are delinquent in payment does not change that arrangement. They have both an ethical and legal obligation to pay your fee whether they like your findings or not, and you have a contractual and ethical obligation to them, whether things happen to be going well at this moment or not.

They have used your report to increase the total amount of information available to them, and are perhaps making strategy on the information contained in it.

I suggest that you make a firm and clear request for immediate payment. Two weeks later tell them that if you haven't receive payment in 10 days that you will initiate legal proceedings to collect (but only if you mean it). If you don't have the money in 2 weeks take whatever recourse is appropriate in your state... small claims court, file a lien against their property, or whatever option is appropriate.

I don't care if it's 25 cents. Stealing a consultant's time is the moral equivalent of shoplifting, and it needs to be treated with the same seriousness. If you go in with the understanding that it's going to be a professional courtesy, a marketing contact, or if your report is contingent upon the report being favorable to their cause that's one thing.

But what I hear you saying is that your payment is NOT contingent upon issuing a favorable report. In my opinion, that's the real ethical issue here. If you just ignore the non-payment, you might be setting yourself up to have to defend the genuineness of your objectivity (under cross examination) at some point in the future.
 
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<lewbloch>
posted
Reply to post by Scott Cullen, on April 22, 1999 at 00:40:40:

Hi Favero,
Scott gave you good advice and a good understanding of the SPP.I don't think that I would try to re-sell it unless I warned the deadbeat by certified mail first.

You have learned a good lesson in practice management...Get paid for a report or appraisal in advance. Been there-done that. I tell my clients that in order to write an unbiased report, i can't have payment or approval hanging over my head. I once told a lawyer that, and he said how about if I pay half up front and half upon receipt and approval. I just stared at him and he got the message.

We all learn every day.

Very treely,

Lew
 
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<Stephen Wiley>
posted
Reply to post by lewbloch, on April 22, 1999 at 07:11:46:

Favero,

As Lew stated: "..been there, done that" so have I.

I now make it a practice to hand report(s) over after payment is recieved. Further, I provide a disclaimer as part of the contract.

Concerning your present situation, possibly a letter stating: Report dated:_____ authored by Favero Greenforest may not be used in part or full, for any purpose by ___(clients)______ unless consideration agreed upon by verbal or written contract has been met. If consideration is not met by:______date, report must be returned. Further, consultant and report shall not be required or used as testimony in any court proceedings, unless consideration (Payment in full) is recieved.

Of course, you should have a lawyer look at the suggested wording and make comments or changes.

Steve
 
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<Pter Torres>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:

I assume you have a written contract with explicit assignment.
Go to small claims court if it is under... $1500, or whatever the rule is. Hire a lawyer if it needs real court. Do not re-sell the contract. Sue them for contract price plus 1.5% interest per month, which should be in your contract for overdue accounts. Court costds and lawyers fees, obviously, are extremely important also. but you know what- it is not in my standard contract.
Talk to me, Lew Bloch. Peter Torres
 
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<Scott Cullen>
posted
Reply to post by lewbloch, on April 22, 1999 at 07:11:46:

One of my experienced appraisal colleagues sometimes uses a strategy like this: If the client is at all risky or unknown, 30% upfront retainer to do initial work and reach preliminary opinion and verbal report; if you don't like where my opinion his heading assignment can terminate, if you do next 30% paid and then I write the report and confim final opinion; last 30% and you get the written report.
 
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<lewbloch>
posted
Reply to post by Pter Torres, on April 22, 1999 at 00:40:40:

I'm talking to you, Peter, but I'm not sure what to say. Of course you are right...sue th pants off of the creep. However, if the amount is small, it really isn't worth the effort,AND the right guy doesn't always win. Just ask OJ.AND FURTHERMORE,winning a law suit is only the first of possible multiple steps to get paid. Been there-done that, too.
verytreelylew
 
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<Russ Carlson>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:

Favero, I think the various approaches have been covered here. Scott addressed the issues of ethics- you are bound to the client until a cleam break is made. Be sure you get it in writing. You can certainly inform the first client that if you aren't paid, then they aren't your client and your services are available to others. Knowing where you stand, they might just want to pay up to make you unavailable to the opposing side. At least you get paid.

If you do accept a request from the other side, you are still giving up your time and rightfully due compensation. You're still out the time you spent.

I'm in agreement with Paul. Pursue all legal channels for recovery. You have a contract for services, which you performed. Your terms should include a statement that your fees and payments are not based on any contingency of findings. You have a good case to get the money.
 
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<Michael A Beebe>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:


Hi Favero,
I've read the posted responses to your query on ethics and find them interesting. I warmly disagree with most.
Just a Suggestion:
You may want to consider revising your contract form to better define the scope of work to your client(s) plus require a retainer large enough to eliminate this issue. A paragraph making them both joint and severally responsible may also help. They appear to be hiring you for a "3rd party unbiased opinion" and maybe should be informed as much. Considering selling your report to another party kind of reminds me of "Ambulance Chasing".I feel it is our responsibility as professionals in our field of endeavor to keep ourselves on the leading edge. If the verbage in your contract form "Covers the divorce prior to the Marriage", most times misunderstandings can be avoided. I would venture a guess that you had a gut level feeling about these guys from the onset. Best of luck on your future endeavors.
Mike
 
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<Scott>
posted
Reply to post by lewbloch, on April 23, 1999 at 03:40:19:

Lew, you and I seem to agree. There's a business decision to be made about whether the unpaid bill is large enough to chase. Even IF the good guy always won there are times it just doesn't make sense. Even IF you recover all attorneys fees and court costs and get interest for the cost of money in addition to the original bill amount, you'll be out the addtional time you spend with the attorney and in court. Sometimes it just better to consider it an education expense and walk away.
 
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<Julian Dunster>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:

I recently went through a similar exercise, Favero. My client tetained me to assess the condition of a tree growing in his neighbour's yard but overhanging hgis property. I visited the site. mey with him, assessed the tree, submitted a report with the invoice and waited to get paid. Eventually, after many months and some calls by me, I was told the report did not serve his purpose but he would pay 50% of the bill. I declined, offered him the option of fullpayment, which he declined. Rather than fight over it, I withdrew my report... but, I made it clear to his neighbour, writing, and to the local municipality, that I had withdrawn my report, and that no money was owed, but the report was no longer valid. I have heard nothing since, but by notifying all affected parties, I hope I have prevented the client from trying to misuse the report. As always, there are a few bad apples in the barrel and it is easier to walk away than worry about them. It seems to me, the trick is to walk away with your sense ofprofessionalism intact.

Julian
 
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<Scott Cullen>
posted
Reply to post by Julian Dunster, on April 22, 1999 at 00:40:40:

Julian the key here, which I think is your intent, is that by notifying potentially interested parties that the report was withdrawn you were making them aware that you were not on the case and could not stand behind any representations made regarding your report or it's conclusions. You were protecting yourself and those third parties from the report's misuse.

You were not postioning yourself to establish client relationships with those third parties.
 
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<Torrey Young>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:

Favero... lots of responses here... obviously we've all had similar experiences. Never-the-less, I also feel compelled to answer, as it seems the many response vary from a sense of revenge to detailed, objective analysis.

My first advice is always condier your professional reputation first... it is your most important promotional tool!

Don't confuse the issue of the work product with your collection issues. The ownership of your work product should be defined in included limitations and copyright statements, as should your position on objectivity.

There are legal ramifications to disclosure of credit issues.... in general terms, keep them confidential.

Finally... don't undermine your professionalism by seeking revenge... seek only payment and protection of your product.

My humble advice:

1) Develop concise but comprehensive copyright, limitations and payment terms statements to provide to ALL clients within or accompanying your work (verbal and written work).

2) Consider a reasonable retainer, progress payment schedule and policy for application as you deem appropriate, but ALWAYS disclosing in writing in advance of any work.

3) When collection seems to be at issue, send a certified letter demanding payment, and disclosing the fact that if not received in full within ___ days, you will consider the contract cancelled. Demand the return of your copyrighted work and all copies and forbid its use in any way shape or form. Finally, disclose the fact that you will consider yourself free of all confidentiality constratints rendering yourself and your work products available to whomever you see fit.

4) Purseue legal action for collection if you feel it a reasonable business decision.

These efforts will secure your professionalism with whoever might come to know of the situation, while securing you product and collection efforts.

Torrey

Is the report still your property?
 
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<Russ Carlson>
posted
Reply to post by Scott Cullen, on April 24, 1999 at 21:53:16:

I suppose the report, once withdrawn formally, could then be considered 'stolen property', if the original client tried to use it. In this case, I think it also reasonable to request that all originally pprovided copies be returned intact. That doesn't prevent copies from being made, but it makes your intent clear.
 
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<Scott Cullen>
posted
Reply to post by Torrey Young, on April 22, 1999 at 00:40:40:

Torrey,

RE: your #3. I'm not sure that stating you'll withdraw your duty of confidentiality in the billing dispute correspondence relieves you of that duty if it was understood to exist by the client (even a dead-beat client) from the outset.

I'd suggest that the ability to terminate the duty of confidentiality should be included in the contract for services and limiting conditions statements if that's an option you want open.

But even then, I think you'd need to distinguish types of non-payment before considering the termination of confidentiality to be ethically acceptable. The guy who refuses to pay a bill because he doesn't like the opinion when he knew the bill was not contingent on results is very different from the guy who can't pay because he lost his job and his kid is sick and El Nino washed his house away all in the same year.
 
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<Scott Cullen>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:

A common theme in the various responses to Favero's inquiry has been that regardless of how badly the client may behave the consultant's behavior must remain on the highest Professional level. Notice that's with a capital "P."

Professional in it's purest sense, the sense intended in the ASCA SPP and taught at the ASCA Academy, means more than that you get paid for providing highly competent services. It means that you must subordinate your interests to those of clients, generally. You and your Professional organization (ASCA, ASLA, whatever...) "profess" adherence to that concept and to specific duties like Confidentiality. Once you agree to abide by those duties in favor of a particular client they are not easily extinguished, even if the client treats you badly. This is related to the idea of Public Trust. The public must understand that Professionals honor their duties no matter what. That trust is eroded if Professionals start saying things like '...well, if you don't pay me quickly enough I'll change my mind.'

If you provide competent services and don't get paid that may not seem 'fair.' If you are bound to duties that preclude you from easily making up some of the loss by peddling the work elsewhere, that may not seem 'fair.' But 'fair' as defined in a commercial or business context does not apply in a Professional context. As a Professional you acknowledge those duties, surrender certain defenses and options and understand those risks. You also have the prestige, marketing power and billing rate of a Professional. Your billing rate should build in those risks. You have legal remedies, particularly if your contracts are well crafted. It's all part of a package.

This was brought to mind when I happened to read the Connecticut regulations pertaining to licensed real estate brokers. Take a look at CGS 20-325h: "TERMINATION OF AGENCY RELATIONSHIP. USE OF CONFIDENTIAL INFORMATION BY LICENSEE PROHIBETED. (a) After termination of an agency relationship between a ....licensee and a person [client]...., no licensee shall (1) reveal confidential information concerning that person; (2) use confidential information concerning that person to that person's disadvantage; or (3) use confidential information concerning that person for the ...[licensee's]... advantage or the advantage of a third party, except as required by legal process, as necessary to defend the ...[licensee]... from allegations of wrongful or negligent conduct, or as necessary to prevent the commission of a crime."

In a nutshell, the duty of Confidentiality survives the assignment, except for very specific exceptions.

I think the Connecticut example is pretty typical of state laws and Professional organization codes regulating Professionals.
 
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<Gary Mullane>
posted
Reply to post by Favero Greenforest, on April 22, 1999 at 00:40:40:

Whoa!!! Folks step back. Favero has several issues.
Collection of fees has nothing to do with your report. That's a business issue.
You own your report whether they pay or not.
At some point,an attorney will find out about your report.
It is certainly not ethical to offer your opinions to the other party.
Favero, your claim to offer your opinions to "whom ever will pay" could come back to haunt you in this case and others. Be careful when you put that kind of stuff in print.

I had this happen to me recently, an attorney did not like my numbers so he engaged someone else. I got paid $1,000 & am essentially out of the case but could be brought in by the defendents if they knew about my report. I can't do anything about that.
 
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<Scott Cullen>
posted
Reply to post by Gary Mullane, on April 22, 1999 at 00:40:40:

Hi Gary. There's an important nuance in the points you've made. While you may own your report in the sense that you may control its use by others, your own use may be restricted by the duty of Confidentiality. As you said "It is certainly not ethical to offer your opinions to the other party."
 
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