Is this offering professional services?

[Jay Wright]

Below is a portion of someones advertisement on the web. I blocked the price and the identity of the RCE. My opinion is if you only get paid if the client likes the result of your survey you are................
I don't know, maybe I'll go get a job at McDonalds, I can't compete with free surveys.




I offer to perform the necessary survey, prepare and certify the necessary documents, submit the LOMA request, and coordinate with FEMA. My fee for successfully obtaining a LOMA for such a property is $xxx. If I am unsuccessful, the client owes nothing. If at anytime during the process I believe my effort will be unsuccessful, I will notify the client that I will not be proceeding further.

[Stephen Johnson]

Most definitely, YES!!!!

BTW, What was advertised will get your registration/license yanked in many states, one of which is Texas. "Bust Outs" not allowed.

The last sentence is just good ethics. I have done the same. I didn't say I wouldn't bill for my services.

[E_Page]

Yes, it definitley is offering professional services. Whether this is something an RCE can do depends upon when his/her license was obtained.

The sentence "If I am unsuccessful, the client owes nothing" creates a professional conflict of interest. Board Rule §476(b)(2) was not written specifically for this sort of fee structuring, but more with the circumstance of the surveyor being a financial partner in the development of a property. But by tying his fee directly to the success of the application, he creates the type of financial interest that would fall under this section.

[Anthony Maffia]

He's a post '82 RCE. Aren't civil engineers allowed to measure elevations though? No property lines involved there, and they can do non-boundary engineering topos.

[LS_8750]

Engineers can do Elevation Certificates.
But every job is different at least from my perspective and I adjust fees accordingly. Can you say "Quack!"?

[bruce hall]

"My fee for successfully obtaining a LOMA for such a property is $xxx. If I am unsuccessful, the client owes nothing."

I don't really have the fancy words to describe the what this is, so I will just say it doesn't sound right to me.

[Jim Frame]

He doesn't say that he'll actually pursue every LOMA request he receives, and he reserves the right to cease work at any point in the process. My guess is that he cherry-picks the jobs that appear very likely to succeed, and dumps the rest right away. The few promising ones that turn out unsuccessful get chalked up to marketing expense.

While I personally wouldn't recommend this approach, I don't see anything technically wrong with it. Shading into the gray a bit maybe, but not a direct violation of any statute.

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[Jay Wright]

Never post when pissed off should be my rule from now on.
The original post was badly worded.

What I was complaining about in my original post was:
The concept that offering professional services for free if the client isn't happy with the result devalues my profession.

What I was asking was if the inherent conflict of interest the person who advertises this way has is patently obvious and therefore okay because it has been divulged up front which I think Evan et al answered.

Thank you

[E_Page]

Patently obvious yes, but it's not like the potential conflict of working for different clients on adjoining projects. it is a real financial conflict. As woodcutter has said, if done right, it's a lot of work, often before one can have a good indication of the outcome, so the incentive to ensure that the data shows a positive outcome is present, not merely potential.

The person making the offer has a financial interest in the outcome.

[Jim Frame]

"What I was asking was if the inherent conflict of interest the person who advertises this way has is patently obvious"

Absent a contract there can be no conflict of interest, thus no cause of action. Even with a contract -- if it holds to the ad language -- the engineer isn't bound to pursue a LOMA application that he doesn't believe will be successful, so a washout claim wouldn't apply.

I don't endorse what the guy's doing -- I think it's a bad business model -- but I don't see anything illegal about it. And if he's not charging clients for unsuccessful LOMA applications, I think a charge of unethical practice would be hard to sustain. Assuming that he's competent, the only ones he might be hurting are professionals who might otherwise obtain fees for pursuing LOMAs that don't succeed.

If he's actually incompetent, that's another matter, but if he wants to give away his time chasing doomed LOMA applications, he's free to do so.

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[Ian Wilson]

I think some of us are getting alluding to the case where the surveyor (or pre-82 civil) can be seen to have an interest in the success of the project. An example would be not getting paid for a Land Title Survey if the sale doesn’t close.

In the example, it could be seen that the decisions of the surveyor might be swayed based on his financial interest in the project.

In the case where the surveyor doesn’t bill for services rendered if FEMA does not accept the LOMR, this gets a bit more tenuous. The most common way for FEMA to reject the LOMR Application would be if the elevations listed are not sufficient for the BFE for the project.

Does this entice the surveyor to list elevations that are sufficiently above the BFE so that the application will be successful in order for the surveyor to be paid? Possibly.

If the elevations are not valid and are listed simply to secure the LOMR, the client would be damaged in the event of a flood. The surveyor would be facing a hefty lawsuit for damages caused by the flood.

While I understand your comments, Jim, I have to step back and disagree with your conclusions.

It’s not only a bad business model, but it can be seen as a potential conflict of interest that may seriously damage the property owner. I vote for tarring, feathering and a quick burn at the stake…after all, this weekend is the official opening of the barbeque season.

BTW – the contract is already in place. The surveyor has a license to practice and has sworn to protect the public.

[Jim Frame]

"Does this entice the surveyor to list elevations that are sufficiently above the BFE so that the application will be successful in order for the surveyor to be paid? Possibly."

If the surveyor responds to that enticement, it's not the result of a conflict of interest; it's fraud, plain and simple. We all face the same thing every time we discover survey results that we know will displease the client. However, we ignore the potential for failure to pay and/or loss of future business and deliver our best professional work product, because that's what we're ethically bound to do.

Continuing as devil's advocate: This guy may be an expert in FEMA work, with impeccable credentials and ethics. He may have concluded that the biggest barrier to generating LOMA work is the potential client's reluctance to spend a lot of money up front with no guarantee of a return on the investment. He decides that if he can assure potential clients that there'll be no charge unless the LOMA succeeds, he'll generate enough new business to cover the cost of preliminary investigations on projects that begin to look unsuccessful. He's careful to include a clause in the contract that allows him to cut his losses and walk away from any project that he decides is heading for failure, figuring that he can identify most of these in the early stages before his sunk costs get too high.

In my opinion, this is about a business decision, with no downside for the consumer as long as the licensee is competent and ethical. And if he isn't, it wouldn't matter whether he advertised the "no risk" offer or not.

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[Ian Wilson]

“…as the licensee is competent and ethical…”

In a perfect world where all land surveyors are of the same quality and ethical make up as you and me, Jim, I would agree with you completely and this would be a tempest in a teapot.

Unfortunately, as I grow older, I have come to realize that you and I are in the minority. You and I are far from being the “lowest common denominator”. The people who read this post are in the group with us.

Human nature is what it is. The statutes are written to protect the public from those who are both unethical and incompetent. We are subject to a set of statutes that require us to live up to a standard that we would have met (and exceeded) without the statute.


And it does matter, Jim.

If the guy is incompetent or unethical, the public will be harmed with a potential for loss of life (look to mid-west flooding for examples).

As surveyors, we are supposed to be dispassionate, objective reviewers of fact. Anything that MIGHT influence us to draw another conclusion based on OUR interests is a potential conflict of interest.


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[Jim Frame]

Woodcutter's description of the ethical situation pretty well sums it up. From an enforcement perspective, though, I think the offending engineer is in the gray area to an extent sufficient to prevent the board from pursuing action based solely upon his advertising.

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