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<James Causton>
posted
Well we have had some very interesting input regarding a very small area of the subject we deal with. I have learned a lot from the perspective of other peoples outlook toward whatever "ethics" is.
If I may, I would like to pose a question regarding a specific, and of course, hypothetical, situation.
If you were called by a client, to arrange removal of one of his trees which had just fallen across the neighbors yard, and you noticed the tree had an obvious problem with a soil borne, root decay disease, obviously you would notify him of this problem and hopefully recommend inspection of the adjacent trees.
However, 7 months later you get a call from the new owner of the same property regarding one of his trees which damaged the neighbors house, the previous owner did not disclose his knowledge of a potential problem. Do you still have an ethical responsibility to your original client, or do you have a greater responsibility to truth and integrity???

Gentlemen!!

James
 
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<Scott Cullen>
posted
Reply to post by James Causton, on December 07, 2001 at 23:25:52:

It depends. It depends on your role, and your agreement(s)with the original client, and the potential for future damage and the nature of questions asked. All of which have to do with truth and integrity.

First, were you a contractor or a consultant? If you were a contractor was it a once only relationship without any explicit duty of confidentiality, or is it an ongoing relationship in which the client has reason to believe you do have a duty of confidentiality? If you were a consultant, in an ASCA context anyway which is governed by the Standards of Professional Practice, you have two explicit duties to the client.... a Fiduciary duty and Confidentiality. Your professional integrity requires you to adhere to those duties. Those duties are to the client and I don't think they terminate with ownership. If your knowledge would expose the client to liability if disclosed the client would be damaged by your breach of duty. You might be excused from the duty of confidentiality if a) there is continuing risk of damage to others that only your disclosure will cure or b) in response to legal process (the court wants your testimony). With regard to a) if you are called in to look at current conditions you can warn of future potential problems without necessarily revealing what happened earlier... though it's likely to come out.

Some consultants keep things clean by declining any assignment where such potential conflicts might develop. You could refer the new owner or to another qualified consultant... who would be likely to discover and report the problem. If that doesn't happen you could still then step in to avert damage.

But the duty of Confidentiality is real and is tied to your integriy. The ASCA SPP allows you to depart from it only under very specific circumstances. You cannot accept a duty and then breach it just because you don't like it.

If you were a contractor the duty may not be so clear, If you have any doubt of your legal duty, get some legal advice. And you could do the same as the consultant and refer the case to someone else... and only step in to avoid damage if necessary.
 
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<JPS>
posted
Reply to post by Scott Cullen, on December 07, 2001 at 23:25:52:

I fee that if you are a contractor and made the discovery and recomendation in the course of the work contracted the you are obliged to keep the information confidential.

Then there are the litigious ramifications, you tell owner 2, who sues owner one. 1 may turn around and sue you. If it were a verbal recomendation then how do you prove you actualy did bring it to 1's attention?

Financial fallout, the 3:8 rule. The like you they tell three people. You piss them off the tell eight.

Realy this is a personal ethics question. If I were in theis situation and having given writen notification. There was personal injury/death involved I would feel compelled to bring this to someones attention.

Good thing this is a narrow low probibility hypothetical.
 
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<Mark Hinsley>
posted
Reply to post by James Causton, on December 07, 2001 at 23:25:52:

I would tell the new owner that the previous owner had been aware of the problem. Under UK law the new owner would only have redress against the previous owner if their solicitors had enquired regarding known problems at the time of the sale. If they had not - then the new owner would have (in my view) no redress against the previous owner. If they had asked - and been told there were no known problems - then the vendor would have committed an offense and I would feel in no way bound to protect them.
 
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