Professor Larry May of Purdue University suggested the desirability, at least in some circumstances, of holding a professional engineering society liable for harms that ensue when its members violate the society's code of ethics. May contended that the legal conception of apparent authority provides a sound theoretical basis for such an approach.

As an illustration in this regard, he first provided the following summary of a recent case, Hydrolevel Corporation v. American Society of Mechanical Engineers: "Influential members of A.S.M.E., who had nearly exclusive authority over the interpretation of the society's boiler safety code, intentionally misinterpreted the code so as to benefit their own companies to the detriment of Hydrolevel Corporation which was trying to market a new steam boiler cut-off device. These members of A.S.M.E. were volun teers, who were under the full-time employ of Hydrolevel's chief competitor. The action taken by these members did not benefit A.S.M.E..

Regardless of these facts, which might otherwise have excused A.S.M.E.from liability in a normal tort proceeding, the Court of Appeals held A.S.M.E. liable for conspiracy to restrain trade fn violation of Section 1 of the Sherman Act. The court argued that A.S.M.E. had widespread influence through its various codes and standards, and misuse of these codes and standards could easily injure competitive firms. Furthermore, it was argued that the public could not ascertain who was acting within their proper authority at A.S.M.E. and who was not. Thus. 'A.S.M.E. would be responsible for its agents' actions if they acted within the scope of their apparent authority, even if they did not intend to benefit A.S.M.E.' and even if A.S.M.E. did not subsequently ratify the actions of these agents. Finally, it was contended that A.S.M.E.'s influence, combined with the likelihood that abuse of this influence would occur, created a corresponding duty on the part of A.S.M.E. to guard against this possible abuse."

May strongly endorsed the above line of reasoning. He noted, however, that one might dissent from it on the grounds that the court appeared to hold A.S.M.E. liable for the actions of its officers because certain third parties believed, falsely it turned out, that A.S.M.E. had authorized its officers' behavior. But under these circumstances, one might urge, the officers really had no authority from A.S.M.E. to act as they did. Against this objection May advanced the following analysis of apparent authority: " . . apparent authority, in its most plausible form, requires not merely 1) that I believe that X is the agent of Y, and 2) that it is reasonable for me to hold this belief, but also 3) that Y has supplied these reasons, and there is no basis for defeating these reasons in this particular case which is accessible tome . . . .If I initially delegate you to act for me and then also fail to provide a way to show when this is not true. I have created a prima facie presumption that you are my agent. I must publically announce that you are not my agent for this presumption to be rebutted. Private pronouncements about when you are my agent are irrelevant. You remain my agent until I publically disassociate myself from you."

May then went on to argue that there area number of good pragmatic reasons for professional engineering associations to accept the idea that they may be held liable under a theory of apparent authority for breaches of their respective codes of ethics by individual members. He said the following in this regard: "First, a number of recent commentators have stressed the need to enforce codes of conduct in professional associations, but as early as the first part of our century the point was put quite clearly by Edgar Heermance. He contended that 'unethical practices are not only a menace to society. They jeopardize the standing of the group as a whole, and tend to depreciate the value of its services. The enforcement of the standard becomes a matter of self-preservation.' Initially,then, it is reasonable for professional associations to enforce their codes, and thus come to accept some responsibility for the actions of their members.

Secondly, in our society we seem to be moving toward increasing regulation of professionals. If some type of regulation is inevitable, it would seem that self-regulation would be the least offensive to professionals and that this would provide a further incentive for professional associations to accept responsibility for their members' conduct."

May concluded that "accepting associational liability, while not without its costs, may indeed be the most attractive alternative professional associations have if they wish to avoid the spectre of increasing governmental regulation of the activities of their members."