CONTINGENT HOURLY AND PERCENTAGE
Date: __, 2020
1. PARTIES. This Retainer Agreement (“Agreement”) is between the Clients identified above on the one hand and Thomas & Elliott, LLP on the other hand (“Attorneys”). On or about &Date& Clients and Attorneys entered into a Retainer Agreement. Work regarding this first retention is coming to a close. The Parties now wish to enter into another Retainer Agreement regarding the Matter identified above.
2. NATURE OF LEGAL SERVICES. Clients hire Attorneys to provide legal services in connection with the Matter described above. Attorneys shall provide those legal services reasonably required to represent Clients in the Matter, take reasonable steps to keep Clients informed of the status of the Matter and respond to Clients’ inquiries. Attorneys shall advise Clients of all written settlement offers made in the Matter. Clients have sole discretion to compromise or settle the Matter. However, the fee owed by Clients to Attorneys may be affected by settlement as described below.
3. CLIENT’S DUTIES. Clients shall advance costs, advise Attorneys of Client’s current address and telephone number, apprise Attorneys of all developments, cooperate, and be reasonably available to attend meetings, court appearances, or other proceedings in connection with the Matter.
4. ATTORNEY FEES. Attorneys’ fees set forth in this Agreement are not set by law but have been negotiated by Clients and Attorneys. Attorneys hourly rate exceeds their normal hourly rate because Attorneys assume a risk that they may accrue Earned Hourly Fees for which they are never paid. Clients agree to pay attorneys fees as described in this paragraph 4:
A. CONTINGENCIES. Clients agree that Attorneys fees shall become payable only upon the occurrence of any one of the following contingencies:
(1). If Clients discharge Attorneys for any reason other than gross negligence, Clients agree to pay Attorneys the greater of the Earned Hourly Fee or the Percentage Fee from any Gross Recovery (defined below) and from Clients’ personal assets;
(2). If Clients settle the Matter without the prior written consent of Attorneys, Clients agree to pay the greater of the Earned Hourly Fee or the Percentage Fee from any Gross Recovery (defined below) and from Clients’ personal assets;
(3). If Clients receive any interim Gross Recovery prior to the entry of a final settlement or judgment in the Matter, Clients agree to pay from the Gross Recovery (but not from their personal assets) the greater of the Earned Hourly Fee or the Percentage Fee, but not to exceed the amount of the interim Gross Recovery in accordance with the formula stated in this Paragraph 4.A.5);
(4). If the Matter results in a final settlement or judgment, then the Earned Hourly Fee or Percentage Fee shall be payable only from any Gross Recovery received, but not from Clients’ personal assets, and not exceed the amount of any Gross Recovery in accordance with the formula stated in this Paragraph 4.A.(5).
(5). The formula for payment of attorneys fees from any Gross Recovery pursuant to this Paragraphs 4.A.(3) and 4.A.(4) is: 1) Costs shall be paid as set forth in Paragraph 6 below; then 2) the remainder, if any shall be paid one-third to Clients and two-thirds to Attorneys until Clients’ Out-of-Pocket Loss (defined below) has been paid in full without interest; then 3) the remainder, if any shall be paid to Attorneys pursuant to Paragraph 4.B until Attorneys’ Earned Hourly Fee is paid in full without interest; then 4) the remainder, if any shall be paid to Clients and Attorneys pursuant to Paragraph 4.C, the Percentage Fee.
B. EARNED HOURLY FEE. Clients agree that the Earned Hourly Fee is calculated at the following rates:
Contract Lawyers $695 – 750/hr.
C. PERCENTAGE FEE. Clients agree that the Percentage Fee is calculated as 50% of the Gross Recovery remaining, if any after payment in full of the Earned Hourly Fee without interest. Clients acknowledge that the Percentage Fee may result in a fee which is larger than the Earned Hourly Fee.
“Gross Recovery” means all sums paid to or benefits conferred upon or on behalf of the Clients by way of settlement, compromise, arbitration, judgment, discharge of an obligation, or otherwise arising out of all or any portion of the Matter received from anyone at any time. Monetary sanctions awarded and paid in the Matter shall be paid to Attorneys and credited to Client’s costs and fees. If the Gross Recovery consists of payments to be made over a period of time, or other property not entirely cash or cash equivalent, the contingency percentage fee shall be based on the present cash value of the non-cash recovery, as determined by generally recognized accounting and appraisal standards. Attorneys fees, costs, disbursements or third party liens shall be paid from the Gross Recovery, reducing Client’s net recovery.
“Out-of-Pocket Loss” is all sums actually paid by Clients in the Matter as of the date of receipt of any Gross Recovery which constitute policy benefits that should have been paid by Clients’ liability insurer, including without limitation, attorneys fees, costs, settlements, and judgments.
5. INTEREST. Clients agree that any sum due to Attorneys under this Agreement which is not paid within thirty (30) days shall thereafter bear interest at the legal rate of 10%.
6. COSTS. Clients agree to pay all costs in the Matter. Attorneys are not required to advance costs, although they may do so, in which case, Clients agree to reimburse Attorneys for all costs advanced by Attorneys on behalf of Clients in handling the Matter, regardless of the outcome of the Matter. Costs commonly include, without limitation, fees associated with filing, service of process, depositions, investigation, jury fees, interpreters, delivery service, certification of public records, reference materials, medical illustrations, photography, telephone calls, deliveries, mileage, parking and other costs of trial or arbitration, postage and photocopying. Reimbursement for costs and disbursements may be made from any recovery. Attorneys shall select any expert witnesses, consultants or investigators to be hired. Reimbursement of costs may be made from any Gross Recovery remaining after payment of Attorneys’ Fees.
7. DISBURSEMENT AFTER RECOVERY. Any Gross Recovery shall be placed into Attorneys’ Trust Account. The Gross Recovery shall be disbursed in the following order: 1) Costs previously paid by Clients or Attorneys, pro rate; 2) the greater of the Earned Hourly Fee or Percentage Fee earned in the Matter plus attorneys fees earned but not paid in another matters; 3) third party liens; and 4) Client’s net recovery.
8. NO GUARANTEE. Attorneys have made no guarantee regarding the successful termination of the Matter, or that Clients will recover any sum whatsoever. All questions or comments relative to the recovery, resolution or termination of the Matter have been are and will be mere expressions of Attorneys’ opinions.
9. APPEALS. Representation of Clients may include appeals and writs.
10. GRANT OF LIEN. Clients grant to Attorneys a lien upon Clients’ claims, any cause of action or lawsuit filed thereon, and on any Gross Recovery in this or any other matter in which Attorneys represent Clients. Clients also grant to Attorneys a lien upon any insurance benefits paid to or on behalf of Clients in connection with this or any other matter in which Attorneys represent Clients. Clients authorize Attorneys to give written notice of this lien in the Matter.
11. ARBITRATION. The State Bar Act provides that arbitration is voluntary for Clients, but mandatory for Attorneys. Any dispute between Attorneys and Clients’ shall be resolved by arbitration before a single arbitrator. The hearings shall be held in the Los Angeles, California. Each side shall bear his/her/its own costs and attorneys fees in arbitration.
12. REPRESENTATION ON OTHER RELATED MATTERS. Clients hereby acknowledge that Attorneys are not Clients’ general counsel and that acceptance of this engagement by Attorneys does not involve representation of Clients in any other matter. In the event that Clients desire representation by Attorneys which are not included in this Agreement, Clients agree to pay Attorneys’ hourly fees, costs and expenses consistent with the terms of the Agreement for such other related matters. Clients have retained Attorneys in a related matter pursuant to a separate retainer agreement. These two separate retainer agreements shall be interpreted in the same manner.
13. USE OF CONTRACT ATTORNEYS. Attorneys may contract with lawyers who are neither partners, associates, nor shareholder of Thomas & Elliott LLP to perform work on the Matter with Attorneys on behalf of Clients. Attorneys will pay such contract lawyers a fee for their work and bill Clients for their work as set forth above. The total fee charged by all attorneys is not increased solely by reason of the use of contract lawyers. Clients herewith give Clients’ informed consent to the use of and payment to contract lawyers.
14. CONFLICT OF INTEREST. Attorneys are governed by Rules of Professional Conduct, Rule 1.7. Attorneys have determined that they have no responsibilities to or relationships with any of the defendants in the Matter. Attorneys do have a personal interest in enjoining insurers like Farmers and lawyers like Lauritsen from violating California law in the dealings with policyholder/clients like the Chas.
15. INFORMED CONSENT. Clients acknowledge that Clients have had an opportunity to discuss the content of this Agreement with independent counsel and that Clients have read and understand this Agreement.
16. WAIVER. The waiver of any breach of any of the provisions of this Agreement by Attorneys shall not constitute a continuing waiver or a wavier of any subsequent breach by Clients either of the same or of another provision of this Agreement.
17. CONSULTATION WITH INDEPENDENT COUNSEL.
Client acknowledges that Client has had the opportunity to consult with independent counsel regarding the terms of this Agrement.
18. RECEIPT OF AGREEMENT. Clients acknowledge receipt of a duplicate copy of this Agreement signed by both the Clients and Attorneys. This Agreement shall become effective upon delivery of a signed original by Clients to Attorneys.
WE HAVE CAREFULLY READ AND FULLY UNDERSTAND THIS AGREEMENT.
DATED: __, 2020
Approved as to form and content as independent counsel for Clients.