A home inspector whom I have known for a couple of years came up to me at Ken Compton’s recent Workshop in Naples, Florida and said “I have to run something by you.”

He had gotten a demand letter from a local attorney seeking damages for alleged failure to detect mold. Not surprisingly, the underlying facts are ridiculous. Leaving aside for the moment the fact that mold detection is excluded from every extant industry Standard of Practice and was not part of this inspection, the mold was discovered only after destructive probing secondary to some remodeling that the claimants were undertaking.

The inspector tried to explain to the claimants’ attorney why there was no case but was unsuccessful in doing so and subsequently reported the matter to his insurance company which appointed a local law firm that specializes in insurance defense to represent the inspector.

That is the worst of all possible worlds for a home inspector. And, if this inspector did not already know that, he could certainly deduce as much from the email exchange between his counsel and his adversary.

His counsel had sent an email to the claimants’ attorney informing him of his representation of the inspector. The claimants’ attorney wrote back as follows: “Hi, Tom [not his name] – I just left a voice mail for you.  Give me a call when you have a minute.  I can give you the background on this case.  I always like to provide business to people I like. Talk to you soon.” Italics mine.

And there you have it. In most jurisdictions, there are attorneys who represent only plaintiffs and attorneys who represent only defendants. Inevitably, these attorneys find themselves on opposite sides multiple times a year. And inevitably, they develop relationships, often close and sometimes cozy.

Sometimes too cozy.

Do you think for a minute that this inspector’s counsel is going to tell his buddy “Look, you have no case and, if you do not dismiss us with prejudice, we’re going to defend the case vigorously and following our certain victory, we’ll be looking to you and your client to make us whole”?

Neither do I.

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