Is it ethical for me to accept retainage for expert witness services from both plaintiff and defense?
A forensic inspection of a residential home as relates to wood flooring issues was commissioned by the home owner (plaintiff). I (a certified independent floor covering inspector) conducted the review of issues and provided a report detailing my findings to the home owner. I was fully compensated for services rendered at the time.
The case is headed to trial. Both sides feel my report could be used in support of their respective positions. First, the plaintiff has agreed to retain my services. The defense called immediately following and indicated they would ALSO like to retain me. The defense indicated their additional retention would insure that I would still be present if the plaintiff elected NOT to use me. Is it ethical/legal for me to accept fees to retain services from both?
Additional information
I am certified as an independent floor covering inspector (not a home inspector). To the best of my knowledge, my business is not impacted by NH home inspection licensing requirements.
Attorney answers (3)
Jonathan H Levy
Reputation Level 19
Answered over 2 years ago.
International Law Attorney in Washington, DC.
New Hampshire law aside, in general it would not be strange or odd for parties to jointly agree on using a single expert. But unless there is a joint agreement in writing, it surely could be a conflict. Additionally, if you have already been retained as the plainitff's expert, I do not see how the defendant can do anyhting except subpoena you.
1 person marked this answer as good
Andrew Daniel Myers
Reputation Level 20
Answered over 2 years ago.
Personal Injury Lawyer in North Andover, MA.
As you know, there are new regulations in New Hampshire regulating home inspectors which become effective on January 1, 2010.
Anyone doing a home inspection in NH on or after that date must be licensed by the state.
In contacting the agency and determining the licensure requirements, you will be referred to a number of regulations with which you will have to comply. You may be "grandfathered" and thus not have to take an examination. However, you must still know and comply with the regulations after the end of 2009. This is what the "phase-in" period is all about.
Conflict provisions should be in there, New Hampshire and most other states strictly regulate conflicts and potential conflicts with regard to real estate agents, attorneys and many others.
Andrew Daniel Myers
Reputation Level 20
Answered over 2 years ago.
Personal Injury Lawyer in North Andover, MA.
Don't be so fast to "put New Hampshire law aside". I am sure you are aware of the new ethical requirements that home inspectors must comply with in accordance with the mandatory licensure that is currently being imposed in the state.
One of the provisions of the new law that should not be "put aside" so quickly is this:
"Inspectors shall avoid conflicts of interest or activities that compromise, or appear to compromise, professional independence, objectivity, or inspection integrity."
This is RSA 310-A:185.
As a practical matter, one of the parties in the law suit is going to win. One of the parties is going to lose. Do you want the angry loser to report even a perceived misstatement, which could then be the subject of reporting and investigation by the new board?
Another option is that the case could settle. However, experienced lawyers and mediators have a time honored saying that one of the hallmarks of a good settlement is that NEITHER party is happy with the final result. Now, you would have two (2) parties who might consider taking it out on you.
Brush the new law and the new board aside at your own peril.
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