The Chain of Authority and Dire Consequences
Case Studies on the Fiduciary Responsibility of an Ethical Consultant
Editor’s note: The case studies in this article are fictitious and are intended to highlight ethical issues in the practice of industrial hygiene. Any resemblance to real people or organizations is coincidental. Please send your responses via email. Responses may be printed in a future issue as space permits.

Beyond normal contractual obligations, what is the extent of duty and responsibility that a consultant has to a client? Does such responsibility extend beyond a simple interpretation of the Code of Ethics? Similarly, what is the client’s responsibility to a consultant? The following cases address these questions.

CASE 1: THE CHAIN OF AUTHORITY After extensive marketing, Motivated IH Consulting Inc. landed a job inspecting several large buildings for asbestos. The scope of work was established, and the work proceeded. Motivated was demonstrably doing quality work. After a month or so, a secretary in one of the buildings, who had been helping by providing access to the site, asked Motivated to essentially double the scope of work and granted access to another section of the facility.
A few weeks afterward, the secretary was let go. Upon delivery of the final work product several months later, client management refused to pay the second half of the invoice. The client reasoned that Motivated’s work on the additional section wasn’t covered by the original scope of work and that the secretary had no authority to authorize it.
Motivated attempted to sue, but quickly learned that the client had a large in-house experienced legal staff and was not shy about legal battles, and that it would cost a small fortune to sue with no guarantee of recovery. After initial legal investigation, Motivated decided it better to swallow the expense and walk away.
Ethics considerations. Was Motivated nothing more than a victim, taken advantage of by a large and somewhat dishonest client? Or was Motivated sloppy by not ensuring that a proper contract was in place and that the person guiding the work was indeed empowered and authorized to do so? What, if any, ethical principles were compromised in this example? CASE 2: DIRE CONSEQUENCES Advance Consulting is a successful national consulting firm with driven management that demands high performance from its sales staff. Upper management continually pushes the regional offices to maintain high profitability, to the extent that underperforming regional managers are sometimes invited to practice their skills elsewhere. One local office has several clients who generally use them exclusively for their industrial hygiene work, often giving them free rein after a project has been assigned a rough outline. The local regulators are known as sticklers, and the local office has often used this trait to their advantage, pointing out the dire consequences and ominous possibilities should even small violations be found.
This pressure has sometimes caused Advance to make liberal assumptions about exposures and the need for further work, rather than looking for alternative compliance solutions. The situation has not been helped by the byzantine nature of some of the regulations involved. The client’s staff is significantly overworked and essentially rubber-stamps projects, not making the effort to look for IH alternatives.
Ethics considerations. Can Advance be faulted for expanding projects (and making more money) because the client approved the general scope of work? Is the client at fault, short staff or not, for not taking more time to evaluate the need for the work performed and to look for more options? Is it reasonable for Advance to provide a deluxe level of service when there are more modest options available, without explaining all the facts?
FIDUCIARY RESPONSIBILITY In financial settings, the term “fiduciary” is sometimes used. One website, Investopedia, defines the term as
a person or organization that owes to another the duties of good faith and trust. The highest legal duty of one party to another, it also involves being bound ethically to act in the other's best interests. A fiduciary might be responsible for general well-being, but often it involves finances—managing the assets of another person, or of a group of people, for example. Money managers, bankers, accountants, executors, board members, and corporate officers can all be considered fiduciaries.
At the highest level of practice, do we, as IH consultants, also have a fiduciary responsibility to our clients as well as workers? Our Code of Ethics outlines basic principles that help define the profession, and that should be followed in the pursuit of ethical practice. However, I suggest that we should also adopt an encompassing attitude with the intent of a fiduciary responsibility.

Some of the takeaway ethical messages from the scenarios in this article include the following:
  • Both the consultant and the client are responsible for ensuring that a clear scope of work and contract are established before (and during) the work.
  • The consultant should verify that the individuals who are directing a project for a client have the authority to do so before any work is undertaken.
  • IH consultants are responsible to act in the sense of a fiduciary toward their clients, always looking for the best solution to problems and explaining why they are proposing or undertaking a particular approach. Although we are bound by the Code of Ethics, in the highest sense a consultant should also undertake the role of an “IH fiduciary.”
  • The client (which often includes the client’s IH department) has a duty to ensure that the consultant understands the terms of the contract. The client also has an ethical responsibility to be aware of the nuances of IH practice and to put workers’ health and safety above other considerations.
JEFF THROCKMORTON, CIH, MSPH, FAIHA, is the senior industrial hygienist for Brigham Young University, a member of the Joint Industrial Hygiene Ethics Education Committee, and a past Board member of both AIHA and ABIH. He can be reached via email.
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