Is it ethical for me to accept retainage for expert witness services from both plaintiff and defense?

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.

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.

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.