Boundary Dispute - Professional Etiquette

[rpost]

I just received a request for proposal for a field survey and plat for a boundary dispute. I was given a survey done by another surveyor (hired by the neighbor) in order to assist with my proposal. I do not see anything wrong with it, however, I feel I should call the other surveyor to discuss the project. I am wondering if this is appropriate. My client is preparing a case, and I am aware there is information he may not want communicated to the opposing party; however, as surveyors it would be nice to be on the same page, discuss the project and hopefully come out with the same boundary resolution.

What is typical of this situation? Do you folks call the opposing surveyor and discuss the project, or is the work done hush, hush. What if you know the other surveyor? Should this information be disclosed to the client?

Any input would be appreciated.

[DWoolley]

If you do not see anything wrong with the other surveyor's survey - what are you doing or going to do for your client?

Not a rhetorical question.

DWoolley

[LS_8750]

That other surveyor might have private records to to support conclusions drawn. That surveyor may or may not be willing to share with you. That other surveyor may be under attorney client privilege.

You may not be able to get access to those records without a lawsuit.

We would like to be a bunch of friends and bros, but the system may not allow it.

[David Kendall]

I recently did exactly that and found the interaction very helpful. I called the other surveor first thing after speaking with my client (before anyone had a chance to tell me I couldn't or shouldn't). We are expecting the resolution to be eventual LLA as there is substantial encroachment. He facilitated negotiations - I asked him to talk to his client and I talked to mine with regard to possible solutions (it seemed to me that the neighbors were not communicating effectively). He gave me some nice tips about research he had done with USFS for unrecorded government corner monuments. Once I got the scope of work and research dialed in I actually tried to refer the whole job to the other surveyor since he could do it more efficiently but our client didn't go for it. I suggest you try to make contact with the surveyor, you never know what will happen if you do but you know what will happen if you don't.

You can always let each other know if topics arise which you are not able to discuss. Boundary research is not proprietary in my opinion and it should not be used as a legal weapon unless it is being ignored in error.

[David Kendall]

If you do not see anything wrong with the other surveyor's survey - what are you doing or going to do for your client?

Not a rhetorical question.

DWoolley

See above - our client had additional corners to be established besides the line in question. We set corners, marked line, confirmed the other surveyor's boundary and facilitated negotiations toward peaceful resolution of the dispute.

[E_Page]

Excellent resolution Mr. Kendall.

I would go in telling the client that 1) The map by the other surveyor doesn't give any indication of incorrect boundary resolution, but that even if it's unlikely, there's a possibility that there is pertinent evidence which was overlooked or not considered that might affect the boundary location, 2) that my role is to find the original location of the true boundary, not to find and interpret evidence to support the place he wants it to be; that there is a possibility that the boundary will be found at a location other than where he thinks or hopes it is, but that I get paid either way, and that 2) I would be conferring with the other surveyor to see what they did find, what they considered, and to ask questions of their reasoning if it's not fully apparent on the map.

The client can either accept my explanations as to why I would need to speak to the other surveyor or they can find someone who will promise to not take the opportunity to find out if the other surveyor has information that's not readily apparent, not of record, or if he or she didn't obtain some pertinent evidence I was able to find. If the potential client is dead set on a fight to the point where there is no room for peaceful and reasonable resolution, I'd rather pass. Chances are that if they're that unreasonable with their neighbor, I would have a difficult time getting full payment for my efforts if the client doesn't like the result.

I've run into the situation once where I didn't know there was a dispute until after I was under contract and on site, and didn't say anything to my client about talking to the neighbor's surveyor. The neighbor threw a minor fit after I had a conversation with the other surveyor. He accepted my explanation as to why I needed to speak with the other surveyor well enough to pay his bill, but not so much that he was happy about it or would have given me permission to do so had I asked him first (as if I needed his permission). Sometimes if the client already has an attorney, the attorney might put it out up front that they don't want you talking to the other surveyor or comparing notes as to what you found. But they have a different role.

While the surveyor comes into it looking for the answer that is best supported by the best of all the evidence he is able to obtain, the attorney comes in with the idea that the legal battle has begun, it's his job to win, and to that end, no information should be shared with the other side until it becomes required by law to do so.

Whether the client or their attorney presumes to prohibit me from contacting the other surveyor, it's a non-starter. I'll allow them to set some reasonable parameters as to info that is off limits to share, as long as it is not information that may affect the determination of where the true boundary exists. If we can't get to agreement on that point, I'd rather walk away than risk making a potentially negligent boundary determination because I allowed someone who is not a boundary location expert to prevent me from checking an obvious source of information.

[mpallamary]

Here are some of Curt Brown's thoughts:

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.


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.

[dmi]

As research for your preparation of your project proposal, there is no prohibition for you looking into all reasonable sources of evidence that may impact you opinion of a boundary location. So doing thorough research is essential and it may require contact with the other surveyor. if as pointed out the other surveyor relied upon private records, then it is a good idea to be aware of that and inform your client that there may be costs associated with obtaining those records. Once under contract, you are part of a team now and you ought to all be pulling in the same direction, but only to the extent that your role is consistent with state law requirements. I will add that I have lost work because of my pre contract research.... I fully concurr with Mr Page that our role is different than the client's attorney.

[PaulEhe]

Yes always call fellow surveyor during your due diligence research in the proposal stage of project. You may even find out something about your potential client that you need to know, as I did last week. I found out that my client pulled a gun on the neighbor during his easement dispute & that is now in the court systems. EP, MP, and DK all nailed this topic with their explanations as usual. DW, I believe that even though you may agree with neighbors survey, that we should always suggest a separate independent modern 2016 survey of your clients property with your clients name on it. Dated survey updates are important to property owners and the survey community. Often in Lake Arrowhead area and Big Bear area, in the past 30 years we have done same lot survey multiple times with new survey dates each time as new owners purchase property. After sometimes almost annual field work on a couple lots, the only change was date and owners name. As time goes on I am finding many of our fellow survey friends are getting old and moving on. Therefore I think it is important we discuss and help preserve their earlier findings & inhouse records, as these may not be available in the future. As such some of these older surveyors in their twilight years enjoy discussing these surveys with younger surveyors. To LS 8750, I still believe we can be a brotherhood of Professionals working together to best serve the public. Isn't CLSA about working together to be better surveyors and communication amongst ourselves to benefit the public? I enjoy calling (or sharing emails) fellow surveyors whenever necessary.

[LS_8750]

Those willing to freely share know who they are. Similarly, those unwilling to share know who they are. The bottom line is you/we cannot conceal anything from our fellow professionals, without interrupting the courts with petty garbage and creating a bad name for the profession and ourselves...