STANDARD TERMS OF ENGAGEMENT
While we will do our best to help you, we cannot predict the outcome of a matter, nor can we guaranty results. Thus, the ultimate outcome may or may not be what you expect. It is essential that you maintain reasonable expectations about the potential outcome of your legal matter, about our abilities and our services, and about us. We will provide the legal services reasonably required to represent you for the matters indicated above. We will take reasonable steps to keep you reasonably informed of our progress and to respond to reasonable inquiries. We will reasonably consult with you about the means by which the client’s objectives are to be accomplished. We will assign such personnel to your matters as are reasonably required under the circumstances. Unless we have specifically agreed to do so in writing, our present engagement does not include services related to taking an appeal or undertaking a “special action” procedure.
You will be truthful and cooperative with us. You will keep us informed of all developments that may impact the representation, abide by your Fee Agreement, and pay our bills on time. You will provide us with the information and documents that you have, and can reasonably obtain, relating to the matters which we are handling. You will be available to confer with us and will keep us advised of your address, telephone number and whereabouts.
The services provided to you will be billed on the basis of the matters set forth in our Fee Agreement. Your acceptance of our services will be deemed assent to the terms of the Fee Agreement. Future fees will be billed at the then-current billing rate for the person rendering services and, in consequence, these rates are subject to change, with appropriate notice. According to standard practice, the charges for in-court services such as trials, hearings and the like are normally billed at twice the regular rate.
The time devoted to your matters may include consultations with others (including others in our office), correspondence, attending hearings, conferences and meetings, reviewing documents, handling telephone calls, (including calls with you, opposing counsel, court officials, and others), negotiations, factual investigations and analysis, legal research and analysis, document preparation and revision, travel away from the office on your behalf, and all other work reasonably related to your matter. When more than one of our legal personnel is involved in a telephone conference, meeting, or court hearing, each person will record and bill for his or her time and effort expended on your behalf. Because we bill based upon a number of relevant factors, the actual number of hours shown on a bill may or may not reflect the actual number of hours expended on your behalf. The total and final fees will be based on a comprehensive measure of relevant factors, as required by Arizona law.
We consider many factors to determine what is reasonable under the circumstances. Important considerations are the complexity and difficulty of the problems presented by the matters, the degree of start-up or learning time required, the amount and value of the matters involved, the nature of the responsibilities we have undertaken, the demands made upon our skills and our time, and the exigencies of the situation. Also relevant to the determination are the actual time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
We also consider the likelihood, if any, that the acceptance of the particular employment will preclude other employment by the lawyer, and the fee customarily charged in the locality and outside the locus for similar legal services. Other fee considerations include: our possible use of prior research, work product or computer models previously devised; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience, reputation, and ability of the lawyer or lawyers performing the services; the degree of risk assumed by the lawyer; whether we are paid on a timely basis; the degree of cooperation we receive from you and others, and any other extraordinary circumstances in determining the amount of our charges.
If the factors mentioned above indicate that an adjustment of the charges at our hourly rates is appropriate, we will make such an adjustment, by either increasing or decreasing the charges for the services. Because of the nature of our computerized billing system, the adjustment may take the form of an increase or decrease in the number of hours billed for a particular service or for the entire billing cycle. We evaluate the fee as the work progresses and at the conclusion of the representation to ensure that under all applicable circumstances the fee is reasonable.
In some cases the firm may charge for, and receive, bonus compensation for achieving a successful result. A “successful result” means obtaining a verdict, judgment or settlement which benefits you economically or socially. If applicable, in the event that a successful result is achieved, the firm will receive bonus compensation an amount equal to ten percent (10%) of the amount recovered on your behalf. This bonus compensation is provided to the firm to reward it for the success and to provide additional incentive to the firm’s members to achieve the result desired by the client. A non-contingent non-refundable suit fee will be charged when we undertake responsibility for litigation, whether on your behalf as plaintiff, defendant, or otherwise. A suit fee compensates for the responsibility undertaken in litigation, whether or not the results of the litigation are successful. Lawsuits in Arizona are governed by many rules of conduct, procedure and responsibility. Once a lawsuit is filed there are many duties, responsibilities and obligations that must be fulfilled including the duty to provide written adequate disclosure of relevant facts.
In transactions involving the purchase or sale of a business, commercial real estate or similarly situated assets, a transaction fee of from two percent (2%) to eight percent (8%) of the sale price may be charged and will be due and payable whether or not title to the asset is transferred. This fee compensates for the responsibility assumed and undertaken, the accountability involved in providing advice and representation, the risks and exposure presented by the transaction, and the time limitations inherently imposed by the circumstances. Because fees in many cases, such as litigation, are extremely difficult if not impossible to accurately predict in advance, we may ask for payment of a revolving retainer. The purpose of the deposit is to have funds available to apply against fees and expenses incurred. When a retainer is exhausted it will be necessary to replenish the retainer with an additional deposit. Upon request, you agree to provide us with an additional deposit for that purpose.
If creditworthiness indicates, if your billing statement is not paid in full when due, or if the scope of the engagement indicates that substantial additional work may be necessary in the future, we may require that you provide collateral, security, an additional retainer or other satisfaction of payment before additional work is undertaken. We may ask you to sign a promissory note regarding any debt that you have incurred, or may incur in the future. We may ask you to provide collateral such as a security interest in personal property or a deed of trust on real property. When you provide collateral, if ever, you will subject the collateral to the risks of non-payment. Upon default, collateral may be seized and/or sold. By signing a promissory note, deed of trust or other security document you will consent to the firm acquiring a pecuniary interest adverse to you as to the amount of the debt which is the subject of the document. Thus, in transactions such as these, we are required to advise you that before signing any such document you should obtain the advice of independent counsel concerning such an arrangement.
Funds that belong to the client, including retainers and those funds that have not yet been earned are placed into a client trust account. Such funds may not be segregated into separate bank accounts but may be commingled in a single bank account with the money of other clients. In compliance with rules of the Arizona Supreme Court, interest on funds held in lawyers’ trust accounts is paid to the State Bar of Arizona for use in public service programs. Therefore, no interest can be paid to clients for funds held in trust that may ultimately be returned to the client. In some circumstances, where the amount of money is substantial enough to warrant the administrative costs incurred, client funds may be placed into a separate interest bearing trust account.
Our performance of legal services may necessarily involve costs and expenses for outside services and other items reasonably required to perform the work. These costs and expenses may be paid directly by you, or paid by us and reimbursed by you, depending upon the situation. Because of potential time lags between the date we receive an invoice for outside services and the date we send our bills, your monthly statement may not contain all of the charges for all costs incurred during the billing period. In addition to charges for professional services, our billings will include charges for any out-of-pocket disbursements. Typically, such disbursements may include such things as: court filing fees, recording fees, process server fees, court reporter fees and charges, long distance telephone calls, copying and duplicating expenses, postage costs, packaging expenses, messenger expenses, facsimile fees, secretarial overtime, parking costs, mileage expense [over fifty (50) miles], computer research fees, expert witness fees and other out-of-pocket expenditures. We reserve the right to request direct payment of any cost or expense that exceeds one hundred dollars ($100).
Charges for services rendered and any disbursements will be billed on a monthly basis, with the charges being first offset against any retainer or other credit balance then outstanding and with any additional balance being payable upon submission of our statement. Payment is due on the receipt of the billing statement. Statements not paid within thirty (30) days accrue a finance charge of eighteen percent (18%) per annum.
When feasible, and if requested, we may provide you with an estimate of the cost of our services. When estimates are given, they are not maximum, minimum, or fixed quotation. Estimates are, at best, educated guesses. As such, estimates are always subject to reevaluation and revision. Regrettably, we do not possess powers of prophecy; we cannot predict the future. Because providing legal representation necessarily involves responding to ever changing situations and to situations over which we have no control, to provide the legal services reasonably needed to represent you we may be required to provide services in addition to those initially anticipated. Thus, the ultimate cost of the legal representation may be more or less than the estimate. The accuracy of our estimates may vary, depending upon facts and circumstances beyond our control, such as the decisions of a court or the actions of third parties. Likewise, if the scope of our representation is expanded or limited, our initial estimate should also be increased or decreased.
If our representation involves litigation it will be almost impossible to predict in advance the total amount of attorney’s fees and out-of-pocket expenses. Due to the unpredictable nature of legal proceedings, the outcome of a litigant’s case is sometimes unfair and almost always expensive. The conduct of other parties or the decisions of a court may make it necessary to perform work that was not initially anticipated. In many cases, the cost of litigation may exceed the amount in controversy.
In some cases, fees and costs may be paid by more than one (1) client. If this situation applies to your case, each client is jointly and individually liable for payment of the entire bill for fees and costs unless we have agreed in writing to the contrary. In some circumstances, we may agree that each client is only responsible for a pro rata share of the bill for fees and costs, but any such agreement must be made in advance and must be made in writing with us.
For convenience, we may send a single bill to one (1) or more of the clients, we may send multiple bills, or we may bill each client a proportionate share of the bill even though each client is responsible for the entire bill. The fact that we may as a courtesy bill each client a proportionate share of the bill even though each client is responsible for the entire bill does not alter the obligation or responsibility of each client. While we may be able to act as a facilitator in the event of a dispute between clients over payment of our bill, the clients must independently resolve any disputes.
Unless we have agreed in writing, in advance, we are not obligated to inform any client of any other client’s payment history during the course of the representation. Depending upon the circumstances, we may not notify each client of each other client’s payment status and history. We encourage each client to communicate with each other client regarding all matters relating to the representation, including payment issues.
In cases where representation of multiple clients is undertaken, the possibility for a conflict of interest to develop exists. By accepting our representation each client represents and agrees that each client has been fully advised of all facts and circumstances relating to the representation and potential conflicts of interest. Because all potential conflicts of interest are not necessarily foreseeable, it is impossible to describe and anticipate each potential conflict of interest that may arise in cases where representation of multiple clients is involved. You agree to raise the issue of separate representation in the event you develop different interests or goals.
You are hereby advised to seek and obtain the advice of independent counsel with respect to these matters. In the event that you do not seek the advice of independent counsel we will assume (unless you advise us to the contrary) that it was because of a desire to have us undertake representation without incurring additional expense or delay. By accepting our representation each client represents and agrees that each client consents to our representation of the other clients.
Additionally, by accepting our representation each client acknowledges receiving an explanation of the implications of common representation and the advantages and risks involved. By accepting our representation each client, to the extent any conflict of interest now exists or may hereafter arise, each for herself or itself, and not for another, hereby waives any such conflict. If a conflict of interest does arise that cannot be resolved by the clients, we may be required to withdraw from the representation.
Where the representation involves multiple clients, each client must understand that any communication from either of them will be fully and freely disclosed to the other and no information will be kept confidential as between them. Should the clients ever become involved in a lawsuit against one another, neither will be able to invoke the attorney-client privilege as to any communication made by or to the Attorney in the course of joint representation of them, and either client may compel the Attorney to testify in court as to any communication made in the course of this representation. Clients acknowledge that they have been advised that they can protect themselves from conflicts of interest by engaging separate counsel and choose to have a single attorney represent them jointly.
Where the representation involves a client that owns, manages, or controls other subsidiaries or entities, it is the client’s responsibility to inform us as to mergers or acquisition of subsidiaries or other entities. This client duty is ongoing. Client must keep us informed of such mergers and acquisitions in order to prevent a conflict of interest (if client were to purchase a company we were suing, for example, that purchase might require us to withdraw from representation of client). Additionally, our representation is limited to the client(s) specified and to the matters described in our engagement letter. Unless specified herein, we do not represent and do not have an attorney-client relationship with each and every entity owned or controlled by the client.
Generally, communications between client and attorney involving legal advice is “privileged,” which means that the attorney cannot divulge the contents of the conversation without the consent of the client. There are many exceptions to this general rule. Once a client reveals the subject of a confidential communication, the privilege is waived. Under certain circumstances we are permitted to divulge the content of a confidential communication, such as when a client tells us of future plans to commit a crime or when the information is necessary to prevent a crime from occurring. Similarly, confidential communications may be revealed when a client indicates an intention to commit a fraud. In the event of a client’s diminished capacity, disclosure to the extent reasonably necessary to protect the client’s interests may be necessary.
Married couples who share an attorney should know that anything communicated to the attorney by one of the spouses may be revealed by the attorney to the other spouse. Thus, a spouse may need or desire separate counsel in some situations. Unless required or allowed to do so by law, or by court order, we will not reveal confidential communications without the permission of the client.
We may, from time to time, communicate with clients and others via electronic mail (e-mail) over the Internet. The use of e-mail involves several risks including the risk that the communication may be intercepted, the communication may be routed improperly by our Internet Service Provider (ISP) or others, or the communication may not be received at all. While there are a variety of tools such as encryption devices that may be used to protect the confidentiality of e-mail communications, such devices are cumbersome to use. Accordingly, we will not encrypt e-mail messages or take any special procedures regarding e-mail, such as the use of encryption software, absent special prior arrangements including the payment of additional fees to cover the expenses associated with such special arrangements.
If you do not want us to communicate with you via e-mail you must inform us in writing. In the event you initiate a communication with us via e-mail you thereby authorize us to thereafter communicate with you in the same fashion. If we initiate a communication via e-mail and you do not immediately object to such method of communication, you thereby authorize us to thereafter communicate with you in the same fashion.
It is possible that you may have insurance policies relating to a matter for which you may request our assistance. You should carefully check all of your insurance policies. Contact all personal and business insurance agents and inquire of them whether coverage is available for the matter which is the subject of our engagement. If coverage may be available, notify the insurance company in writing about the matters as soon as possible. We do not undertake any responsibility to advise you on the existence, applicability, or availability of insurance coverage for any matters to be handled by us unless you have provided us with copies of your policies of insurance and expressly requested our advice on potential coverage under those policies. If an insurance company undertakes the payment of any portion of our billing statements, you will still remain responsible for any amounts not paid by the insurance company.
We do not render tax, investment or financial advice. You should engage the services of a competent, reputable and qualified tax and/or financial advisor, such as a certified public accountant (“CPA”) or a certified financial planner (“CFP”) for tax or financial advice. There may be serious adverse tax consequences resulting from the legal services we provide such as income tax, capital gains tax, estate taxes or other taxes. It may be necessary to trade-off, balance or weigh tax reduction or elimination for certain anticipated legal consequences such as liability reduction or elimination. It may be necessary to make a tax election or to file certain tax forms within a certain period of time in order to achieve certain tax results. Information concerning filing of tax returns, payment of taxes, making tax elections and other tax issues must be obtained from tax advisors. You should consult a CPA for tax advice and consult a CFP for financial planning or advice.
Any opinions we express about the outcome of a legal matter are only our best professional estimates; they are necessarily limited by our knowledge of the facts and the law at the time opinions are expressed. Nothing in this letter and nothing in our statements to you are to be construed as a promise or guaranty about the outcome of your matters. We make no promises or guarantees. We cannot predict the outcome of a matter. Unless specifically stated in a separate writing, signed by both of us, payment for our services is not contingent upon the outcome of any matter.
You may terminate our engagement at any time on written notice to us. Upon termination, we will review our files to determine whether we are in possession of any materials that must be returned to you. We will return your property to you unless we have a right to retain such property. We provide clients with a copy of documents generated and received during the course of representation. If you want an additional copy of our files, you or your representative may make arrangements to make copies of all of our papers that we believe are reasonably necessary to continued representation. You will be responsible for the cost of reproduction. Our file folders are our property and they are not given to a client or anyone else at or after the termination of representation, except as provided by applicable laws, rules and regulations. Termination of our representation does not affect your responsibility to pay us for the services we have provided, including any additional work required for us to facilitate an orderly turnover of matters in process at the time of termination.
We may terminate our representation if you do not pay us as agreed, if you do not cooperate with us, if you persist in conducting yourself contrary to our advice and recommendations, or for any other reason which, in our opinion, impairs an effective attorney-client relationship. We may terminate our engagement by providing you with notice of our termination. We will give you a reasonable opportunity to obtain substitute counsel before we cease all activity on your behalf unless circumstances dictate otherwise.
If we terminate our representation, we will continue to perform such services as are reasonably required to protect your legal interests until you have obtained substitute counsel or until you have had a reasonable time in which to do so.
We may destroy any of your files at any time with your written consent. Generally, we keep each client’s file for one (1) year after the conclusion of representation, after the end of the case, or when we close the file. After one (1) year we may destroy the file without your consent, unless suitable prior fiscal and logistical arrangements have been made in writing for continued storage.
No further notice to you will be required prior to such destruction. During that one (1) year period, we will make such files available to you for copying upon reasonable advance notice and upon payment of any expense incurred in connection with such requests. If you want us to keep files for a longer period of time, please let us know so that appropriate logistical and financial arrangements may be made. You have consented to us keeping files and records after the termination of representation in an electronic format only; if you desire some other method of retention you must immediately notify us in writing.