Some thoughts from Curtis M. Brown

[mpallamary]

LAND SURVEYORS ETHICS

By Curtis M. Brown, Daniels, Brown & Hall, San Diego, California
June 1960

CALIFORNIA, like several other states, is preparing a “Manual for Land Surveyors in California.” Two years ago, I was appointed to do this project. Certain phases of the manual have been completed, ethics being one of them. This manual is for “Property-Line Surveyors” in its narrow sense. Since surveyors in California may do construction staking (roads, buildings, etc.), take topography, and do other things often referred to as engineering surveying, this code can only be interpreted as applicable to a portion of their practice; i.e., the property-line portion. Although much of it is applicable to “engineering surveys” as classified by the ASCE Task Committee (Brother B. Austin Barry’s committee), it would probably have to be enlarged and slightly reworded to include all of these strictly technical surveys.

Because there are so many State surveyor organizations now considering this subject, it is deemed advisable to publish this present thinking on ethics. Perhaps the best book written on ethics is Legal Ethics by Henry S. Drinker (Columbia University Press, N.Y.). It is recommended for all ethics committees and, for that matter, anyone else. The Property Surveys Division of the American Congress on Surveying and Mapping has an ethics committee headed by able Victor H. Ghent. This code, proposed for California, does not necessarily reflect the ideas or opinions of that committee and is published merely for the purpose of stimulating thinking. It has not been officially adopted in California.

DEFINITION OF ETHICS

That branch of moral science which treats of the duties which a member of a profession owes to the public, to his professional brethren, and to his client, is ethics.

Ethics is not susceptible to an exact definition. The above definition, adapted from Bouviers Law Dictionary, rather clearly expresses the intent and purpose of ethics.

“It is a fact with which everyone is familiar that an individual may strictly observe the laws of the land and yet be an undesirable citizen and a poor neighbor. The idea that each individual can and should establish for himself rules of conduct for such relations as are not covered by law and without reference to the experience or opinions of others seems equally as absurd as would a similar attempt to establish principles of law. Laws must be established by the majority action of a legislative body, and rules of professional conduct must be based on the concurrent opinions of the members of a profession.” (“Standards of Professional Relations and Conduct,” by Daniel W. Mead, American Society of Civil Engineers). Rules for professional conduct are ethics.

Lord Moulton in an article in the Atlantic Monthly (134 Atlantic Monthly 1, 13, 1924) stated, “The real greatness of a nation, its true civilization, is measured by the extent of Obedience to the Unenforceable.” Ethics are often unenforceable. True professional stature arises from obedience to the unenforceable.

Rules of ethics, as adopted by any profession, are not intended to particularize; they are general guides of conduct and behavior.

Advocating observances to ethics is not sufficient; the surveyor’s personal example is far more potent. It is not sufficient that the surveyor alone feels that he has honesty and integrity; the public, clients, and fellow practitioners must also believe so. The proof of observance of ethics lies in the opinions of others.

If we, as surveyors, are to maintain a respected position as a profession in the community, we must look beyond the club of the law to ethical standards which prohibit the doing of that which the law does not forbid.

THE SURVEYOR’S PROFESSIONAL STATUS

Principle: Professional stature cannot be acquired by self proclamation; others must bestow the title upon the surveyor.

The three professions or learned professions as defined by Webster, are theology, law, and medicine. Definitions of a profession, though not exact, include such phrases as “a group of men,” following a “learned art,” and as a “public service.”

We, as surveyors, know that we are in a profession practiced by a group of highly skilled men pursuing a learned art for the benefit of the public. But we, as professional men, are not the sole judge in this matter; others must also think so. Whether surveying is a profession or not is something that the public bestows upon the surveyor. Fortunately, it is not something that is acquired by self proclamation. If it were otherwise, everyone would soon lay claim and become higher in stature whether qualified or not. The professions that the public recognizes and acclaims as professions, i.e., doctors, attorneys, and clergymen, need not use the title professional doctor, professional attorney, or professional clergyman; everyone knows they are professional. The title was bestowed upon them because of their ethics, behavior, and standing in the community. Friends, business acquaintances, and others will evaluate surveyors by their behavior, technical skills, education, and ethics. Only if they behave and act like professional men will the public bestow upon them the privilege of being professionals.

Surveyors enjoy a personal relationship to the client that is similar to that of the legal and medical professions. The client seeks the services of a surveyor for a personal problem, the surveyor serves the client for a fee and at the same time is obligated to protect certain bona fide rights of others. But, unlike the legal, medical, and theological professions, he is not extended privilege communications. As in law and medicine, the surveyor is often given the exclusive right to perform certain duties, and in exchange for this exclusive right he has obligations to the client, the public, and other surveyors. The differences between the surveying profession and a business are:

(1) A relation with the public as an arbitrator of boundary problems and an obligation to protect the boundary rights of others.

(2) A duty of public service though it may incidentally be a means of earning a fee.

(3) The possibility of earning highest eminence without making much money.

(4) A relation to clients in trust.

(5) A relation to other surveyors characterized by fairness.

(6) An unwillingness to use business methods of advertising in self-laudatory language.

(7) Unwillingness to encroach on another surveyor’s practice or clients.

SURVEYORS’ PRIVILEGES AND OBLIGATIONS

Principle: In exchange for certain exclusive privileges granted by law to the surveyor, he has obligations to the public, the client, and fellow practitioners.
The surveyor and sometimes the engineer, by his license or registration, is given the exclusive privilege to (1) hold himself out as a land surveyor and (2) to monument property lines.

These rights are granted to protect the public from unqualified practitioners. In exchange for these exclusive privileges, the professional surveyor has certain obligations to the public, the client, and colleagues.

The land surveyor has the authority, by law, to monument property lines, but he does not always have the responsibility of perpetuation. In California, a large portion of our lands were divided by one of the finest systems ever devised, i.e., the sectionalized land system. The Federal Government provided the original monumentation, but no provisions were made for the perpetuation of the system. Perpetuation may be accomplished by delegating such responsibility to public office holders or to private land surveyors. In California, each has responsibilities for perpetuation. If in the performance of land surveys, the land surveyor discovers certain facts, such as a material discrepancy from the record (Section 8762 of the Land Surveyors Act), he must file a public record. Thus, there is a perpetuation of records disclosing the location of found monuments and original survey lines.

Filing of public records of re-surveys performed by qualified land surveyors is one of the best methods known for perpetuating surveys. The keeping of secret tie-out records of found original monuments only leads to confusion. If the land surveyor allows the public to delegate to him the exclusive privilege of performing land surveys, he ought to accept the responsibility of devising some system that assures the perpetuation of former surveys. Failure to do so will certainly result in a loss of public respect, and, in some states, just such a thing has happened.

SURVEYORS’ OBLIGATIONS TO THE PUBLIC

The surveyor has the following obligations to the public:

(1) to see that the client’s boundaries are properly monumented without subtracting from the rights of the adjoiner;

(2) not to stir up boundary disputes;

(3) not to aid in unauthorized surveying practice;

(4) to see that those licensed as surveyors (or as engineers, if engineers are permitted to practice surveying) are properly qualified by character, ability, and training; and

(5) that those who prove unworthy of their privileges have those privileges deprived.

OBLIGATIONS IN MONUMENTING BOUNDARIES

Every boundary survey for a client establishes the boundary of an adjoiner. One of the reasons for giving surveyors the exclusive privilege of marking boundaries is to prevent the unskilled from monumenting lines that encroach on the bona fide rights of an adjoiner. As an obligation to the public, the surveyor should not, in any way, assist a client in acquiring rights to land that are not his to enjoy.

Example 1. - Client “A” asks Surveyor “B” to survey a certain parcel of land by commencing at an existing fence said to be his westerly boundary. The surveyor should refuse. While the surveyor has no liability to the client, since he would be doing as requested, he should decline starting a survey without knowing where the written title lines are. He has an obligation to the public and the adjoiner not to encroach on their rights.

Example 2. - A surveyor is requested to monument a certain property in accordance with a deed known by the surveyor to be defective. If the monuments are set, the client will appear to have land that is not rightfully his. The surveyor should withdraw. He has an obligation to refuse to assist knowingly in morally wrong acts.

STIRRING UP LITIGATIONS

Stirring up litigation, according to common law, is a crime known as maintenance. If the offender in a land boundary case is a surveyor, he is doubly at fault. A surveyor may act as an arbitrator and try to smooth over a difficult boundary situation, but he should not stir up litigation as a solution to the problem, especially where he would collect an expert’s fee as part of the litigation.

Because the surveyor is to protect the bona fide rights of the adjoiner, he should not hesitate to point out what the rights of the adjoiner are. If there is long-continued possession and title has probably passed by acts of possession and knowledge of such facts would tend to prevent the client from entering in litigation, the surveyor should not hesitate to disclose such facts. However, the surveyor should also suggest that attorneys are the proper parties to render an opinion on such matters.

AIDING UNAUTHORIZED SURVEYING PRACTICE

No surveyor shall permit his name to be used in aid of, or to make possible, the unauthorized practice of surveying by any agency, personal or corporate. (Adapted from American Bar Association, Canon 47).
What constitutes unauthorized practice of surveying must ultimately be resolved by the courts, and ethics committees should be bound by their findings.
The selling of signatures for a fee, i.e., signing a surveyor’s certificate and certifying to the correctness of a survey where the work was not performed by himself, his employees, or his direct subordinates, is the most flagrant violation of the intent of a registration law.
A layman may be hired properly by a surveyor, provided his service does not constitute the practice of surveying and that his compensation is not a proportion of the fee. Having a layman as a partner in charge of a corporation practicing surveying is a violation of ethics.

QUALIFICATION OF SURVEYORS

Every applicant for registration must furnish a list of professional men as references. It is the duty of those replying to the Board of Registration, in response to questions as to a person’s qualifications, to disclose all unfavorable as well as favorable qualifications of the applicant. Friendship, family relationships, sympathy, or any other reason should not influence his thinking. Likewise, surveyors and surveyor organizations should not hesitate to comment on the quality of the questions being asked on surveyor examinations.

UNWORTHY SURVEYORS

Occasionally those who are licensed, by their conduct, prove themselves unworthy of licensing and should have their privileges removed. Surveyors are better able than laymen to appraise the qualifications of other surveyors. If a surveyor is frequently negligent in his duties, that fact will be noticed by several surveyors, who, as a group, can prefer charges.

SURVEYORS’ OBLIGATIONS TO CLIENTS

The surveyor, when performing a given service for his client, assumes certain ethical obligations in addition to liabilities. But these obligations to the client may not supersede or interfere with the surveyor’s obligations to his colleagues or to the public. He should serve his client faithfully, but he should refuse to do that which is illegal, unethical, or violates a duty to others. The surveyor advises his clients as to what is right and proper, and if the client insists otherwise the surveyor should withdraw.

CORRECT SURVEY

Regardless of the fee charged, the surveyor is obligated to perform a correct survey within specified accuracy.

While there are times when the property owner will agree that an inaccurate or approximate property line survey will suffice for his purpose, the surveyor ought not to accept such a commission. Another surveyor, at a later date, discovering the approximate survey monuments, will take a dim view of the surveyor’s ability. Future owners, not knowing the circumstances under which the monuments were established, might be misled. Furthermore, approximately located monuments may be the basis for fraud or deceit on the part of the property owner or the client. Most people assume that surveyors’ monuments are located correctly; hence the mere finding of an approximate property corner may be the cause of a costly misconception.


SUBCONTRACTING WORK

The property-line surveyor who accepts a commission to do a boundary survey may not, except with the consent and knowledge of the client, subcontract or let another organization perform the work.
Whenever a client employs a surveyor, he has a right to assume that that surveyor will supervise and direct the work. Subcontracting to another, without the knowledge of the client, is a breach of ethics. A client seeks a particular surveyor because he has confidence in him. If he had wanted another surveyor he would have gone to him in the first place.
It is distinctly proper to refer a client to a colleague whenever a surveyor is too busy or does not have the proper knowledge or facilities to handle the job. But the referral should be without any idea of a kickback on a fee.

CONFIDENTIAL COMMUNICATIONS

Communications between the surveyor and client are confidential. But the surveyor may not be a party to an illegal act or fraud, and communications concerning illegal acts or frauds are not confidential.
At law, the surveyor is not given the right to withhold privileged communications. But, unless required by law to disclose the business of a client, communications are confidential. If a client is having a survey made for the purpose of building a large commercial center, such information should be kept secret until such time as the client wishes to announce the facts.
But this does not mean that the surveyor is to remain silent if a fraud or illegal act is being perpetrated. The surveyor should never join in nor be a party to any illegal act or fraud, nor should he allow his silence to be the cause of fraud or an illegal act.

PERSONAL INTEREST

The surveyor should not, for his personal gain, take advantage of confidences reposed in him.

REBATES AND DOUBLE FEES

The surveyor shall not accept any remuneration other than his stated charges for services rendered his clients. Accepting a fee from the client and a contractor lends the flavor of collusion. But if the client has full knowledge of such facts, no harm can be done. Fees derived merely because of referral to another are entirely unethical.
The surveyor should never be in a position that, because of remunerations or personal interests, it will interfere with his obligations to his client.

ADJOINING SURVEYS

The surveyor often monuments adjoining properties, but where there is a property line dispute, the surveyor should avoid rendering services for the adjoiner unless he has the consent of his client.

In property disputes, the arguments are usually over encroachments. A surveyor employed to determine the status of encroachments cannot very well reveal them to a neighbor for another fee. In litigation a surveyor consulted by one party cannot ethically advise the other side, especially if he possesses confidential information. Of course, the surveyor must testify in court to all things truthfully and may not withhold any information he is asked about; but this does not mean that he should have pre-consultations with the opposing side.

CONFLICTING INTERESTS

If a surveyor owns adjoining property, or has an interest in it, he should so inform a prospective client. In the minds of many people is the suspicion that others are always biased towards their own interests. If a surveyor performs a service for such a person without revealing his interest in adjoining property, he may be placed in an embarrassing position if trouble or litigation ensues.

SURVEYORS’ OBLIGATIONS TO OTHER SURVEYORS

A profession is partially distinguished by the fairness and courteousness of one practitioner to another and their unwillingness to encroach upon the clients of another. Businesses compete aggressively for competitors’ customers; professions do not. A member of a profession values the esteem of his colleagues and the prestige of his calling, especially so the more mature his age. But those who advertise or steal another’s customers do not induce cordial reception or pleasant relationship, as it ought to exist, among surveyors. Thus surveyors have obligations to one another.

PROFESSIONAL REPUTATION

The surveyor or engineer does not attempt to injure falsely or maliciously, directly or indirectly, the professional reputation, prospects, or business of another surveyor or engineer.

Confidence in and respect for a profession are gained by praise of one member for another. Constant sniping between professional people can only degrade the profession.

This ethical rule prohibits the engineer or surveyor from “falsely” or “maliciously” harming the reputation of another. This does not prohibit the right of any surveyor to give proper advice to those seeking relief from negligent surveyors. Surveyors should expose, at the proper time and place, dishonest conduct in their profession and should not hesitate to accept employment that will assist a client who has been wronged. But it is distinctly bad taste and ill manners to accept the word of the client without first checking with the colleague. Many times those making the accusations are not entirely unbiased in their presentation of their side of the story.

EMPLOYMENT

It is unprofessional to attempt to supplant another Engineer or Land Surveyor by means prohibited by this code of ethics after definite steps have been taken towards his employment. It is unprofessional to compete with another Engineer or Surveyor for employment on the basis of professional fees, by reducing his usual fees and in this manner attempting to underbid after being informed of the fees named by another.

A surveyor may not properly make a competitive bid for professional service nor may he use decreased fees to entice a client from another. A former employee, who is now starting his own business, may not properly attempt to induce his former employer’s clients to turn their accounts over to him, nor should he send announcements of his new office to the clients of his former employer. But he need not refuse employment from them provided he has not either directly or indirectly solicited employment from them.


DISCOVERED ERRORS

In the event a land surveyor discovers an error or disagrees with the work of another land surveyor, it is the duty of that surveyor to inform the other surveyor of such fact.

Surveys are not for the purpose of stirring up arguments and fights between neighbors. If the adjoining property has been surveyed by another surveyor and the two surveys are not in agreement, the matter should be discussed between the surveyors prior to announcing that an error exists. Sometimes evidence found on the first survey may indicate that a different principle should be used in the later survey. Of course, if a surveyor has made a genuine error, other surveyors should not honor the error, but the first surveyor should be given an opportunity to prove the correctness of his survey if he can.

REVIEW OF ANOTHER’S WORK

It is unprofessional to review the work of another Engineer or Land Surveyor for the same client, except with the knowledge or consent of such Engineer or Land Surveyor, or unless the connection of such Engineer or Land Surveyor with the work has been terminated.

Consulting with another’s client is considered or appears to be an attempt to supplant the engineer or surveyor. If a request is made to review the work of another, the person making the request should be informed of the ethics involved, and the other surveyor should be promptly notified of the facts. Even in the event that the work of the other surveyor appears to be fraudulent or neglectful, and the other surveyor probably will be charged with misconduct, it is the duty of the surveyor to communicate with the other surveyor and give him the opportunity of reply.

ADVERTISING

It is unprofessional to advertise in self-laudatory language, or in any other manner derogatory to the dignity of the profession.
What is advertising in self-laudatory language is not exactly definable and until surveyors and engineers are more specific, this rule of ethics will have little force. Other professions are more detailed and specific. The sign on an office building (attorneys) is tested by whether the sign is calculated to enable a person looking for a particular lawyer to find him or whether the sign is calculated to attract the attention of persons who might be looking for a lawyer. Canon 27 of the American Bar Association’s Professional Ethics states: “It is unprofessional to solicit professional employment by circulars, advertisements, through touters, or by personal communications or interviews not warranted by personal relations. Indirect advertisements for professional employment such as furnishing of inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer’s position, and all other like self-laudation, offend the traditions, and lower the tone of our profession and are reprehensible; but the customary use of simple professional cards is not improper.”

DISCREDIT TO THE PROFESSION

It is unprofessional to act in any manner or engage in any practice which will tend to bring discredit on the honor or dignity of the Engineering and or Land Surveying Professions.

A surveyor should not aid a client in perpetrating a fraud nor assist him in an illegal act. He should not, in his personal appearance or manner of conduct before the public or others, bring discredit to himself as a professional man.

FEES

No division of fees for surveying service is proper, except with another surveyor or engineer who by his license is permitted to do land surveying work, based upon a division of service or responsibility. In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite properly to conduct the survey; (2) the customary charges of the surveyor associations for similar service; (3) the amount of liability involved and the benefits resulting to the client from the services; (4) the contingency or the certainty of the compensation; and (5) the character of the employment, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are mere guides in ascertaining the real value of the service.
In determining the customary charges of the Surveyors’ Associations for similar services, it is proper for a surveyor to consider a schedule of minimum fees adopted by a Surveyors Association, but no surveyor should permit himself to be controlled thereby as his sole guide in determining the amount of his fee.
Minimum fee schedules are a guide and can never be a binding agreement between surveyors. Antitrust laws prohibit such price fixing.

INTERMEDIARIES

The professional services of a surveyor should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and surveyor.

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COPYRIGHT 2020, MICHAEL J. PALLAMARY

[DWoolley]

This has always been one of my favorite writings by Brown. I have referenced and given presentations on this specific paper.

Folks should realize these articles and his books were directed by, I also believe paid for, by the American Congress of Surveying and Mapping ("ACSM"). The California Land Surveyors Association was not started until 1966 and initially was only in the Santa Rosa area. ACSM had two chapters in California and published some great material.

Timely in the context of another current discussion on this forum, Brown discusses the importance of group input - ACSM had committees to review and edit Brown's work. He also, obviously, recognized the need to put these ideals in writing for all to consider and adopt. Novel concept.

Thank you Mike Pallamary for posting this particular paper. Do you have more information about the work and structure of ACSM in the 1950s? At one time I read about their process, but I cannot recall where I read it.

DWoolley

[mpallamary]

I have some old information. At one time I had every ACSM journal. I gave them away at various meetings. They can be found at certain libraries. ACSM did not pay for the articles; Curt wrote them as a member and officer. ACSM gave me permission to republish them and Curt bequeathed to me all his writings and intellectual work, except the two major books. As folks may know, I compiled everything in The Curt Brown Chronicles dedicated to Paul Cuomo I might add!

I too thought it timely!

https://www.amazon.com/Curt-Brown-Chron ... 1452090521