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LEGAL SERVICES AGREEMENT
1. IDENTIFICATION OF PARTIES. This Agreement is made between City of Stockton (“Client”) and the law firms of Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC, (collectively referred to as “Attorneys”).
2. RETENTION OF FIRM RATHER THAN PARTICULAR ATTORNEY. By signing this Agreement, Client retains the law firms. Attorney services will be provided to Client by the firms and will not necessarily be performed by any particular attorney.
3. AUTHORIZED REPRESENTATIVE OF CLIENT. Client designates ________________________________________________ as the authorized representative to direct Attorneys and to be the primary individu al to communicate with Attorneys regarding the subject matter of Attorn eys’ representation of Client under th is Agreement. This designation is intended to establish a clear line of authority and to minimize potential uncertainty, but not to preclude communication between Attorneys and other representatives of Client.
4. SCOPE AND DUTIES. Attorneys will provide le gal services to Client with respect to damages, compensation, and other relief to which Client may be entitled as a result of an Action to be filed by Attorneys on behalf of Client ag ainst the manufacturer(s ) of 1,2,3 trichloropropane (“TCP”). Client hires Attorneys to provide legal services in connection with pursuing claims against all those responsible for damages Client suffered or will suffer. Attorneys shall provide those legal services reasonably required to represent Client, and shall take reasonable steps to keep Client informed of progress and to respond to Client’s inquiries. Client shall be tr uthful with Attorneys, cooperate with Attorneys, and keep Attorneys informed of any and all factual developments.
5. LEGAL SERVICES SPECIFICALLY EXCLUDED. Unless otherwise agreed in writing by Client and Attorneys, Attorneys will not provide legal services with respect to (a) defending any legal proceeding or claim against the Client commenced by any person unless such proceeding or claim is filed against the Client in the Action or (b) proceedings before any federal or state administrative or governmental agency, department, or board including, but not limited to, the United States Environmental Protection Agency. With Client’s permission, however, Attorneys may elect to appear at such administrative proceedi ngs to protect Client’s rights. If Client wishes to retain Attorneys to provide any legal services not provided under this Agreement for additional compensation, a separate written agreement between Attorneys and Client will be required.
6. JOINT RESPONSIBILITY. Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC assume joint legal responsibility to Client for the representation described in this Agreement, and agree to be available for consultation with th e client. Client approves of and consents to the participation of the firms in their representation.
7. ATTORNEYS’ FEES. Client and Attorneys have agreed that Client will pay Attorneys a contingent fee for representing Client in this ma tter. The fee is not set by law but is negotiable between Attorneys and Client. Attorneys and Client agree that the contingent fee will be calculated
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as described below.
A. Calculation of Contingent Fee
Attorneys will receive a contingency fee of 25% of any gross recovery (as defined below).
The contingent fee is to be calculated ba sed on Client’s gross recovery before deduction of costs and expenses (as defined below).
The contingent fee is calculated by mu ltiplying the gross recovery by the fee percentage.
B. Definitions
“Costs” and “Expenses” include, but are not limited to, the fo llowing: process servers’ fees, court reporters’ fees, docum ent management costs, messenger and other delivery fees, parking, investigation expenses, consultants’ fees, expert witness fees, expert fees, fees fixed by law or asse ssed by courts or other agenci es, and other similar items, incurred by Attorneys in the course of representing Client.
“Document Management Costs” are the costs associated with collecting, copying, and storing documents relevant to the Action as discussed in paragraph 8, below. These costs include processing and hosting charges, hardware, software, and any other resources necessary to manage documents.
“Gross recovery” means the total recovery, whether obtained by settlement, arbitration award, court judgment following trial or appeal, or otherwise. “Gross recovery” shall include, without limitation, the following: (1) the then-present value of any monetary payments to be made to Client; and (2) the fair market value of any non-monetary property and services to be transferred and/or rende red for the benefit of Client; and (3) any attorney’s fees recovered by Client as part of any cause of action that provides a basis for such an award. “Gross recovery” may come from any source, including, but not limited to, the adverse parties to the Ac tion and/or their insurance ca rriers and/or any third party, whether or not a party to the Action.
If Client and Attorneys disagree as to th e fair market value of any non-monetary property or services as described above, Attorneys and Client agree that a binding appraisal will be conducted to determine this value. However, regardless of the results of the binding appraisal, the fee associated with non-monetary property or services transferred or rendered for the benefit of the Client shall not, in any case, exceed the amount of the monetary payments made to the Client as part of the governing settlement or judgment. It is possible that payment to the Client by the adverse parties to the Action or their insurance carrier(s) or any third-party may be deferred, as in the case of an annuity, a structured settlement, or
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periodic payments. In such ev ent, gross recovery will consist of the initial lump sum payment plus the present value (as of the time of the settlement) of the total of all payments to be received thereafter. The contingent fee is calculated, as described above, by multiplying the gross recovery by the fee percentage. The Attorneys’ fees will be paid out of the initial lump-sum payment if there are sufficient funds to satisfy the Attorneys’ fee.
If there are insufficient f unds to pay the Attorney s’ fees in full from the initial lump sum payment, the balance owed to Attorneys will be paid from subsequent payments to Client before there is any distribution to Client.
C. Reasonable Fee if Contingent Fee is Unenfo rceable or if Attorney is Discharged Before Any Recovery.
In the event that the contingent fee portion of this agreement is determined to be unenforceable for any reason or the Attorneys are prevented from representing Client on a contingent fee basis, Client agrees to pay a reasonable fee for the services rendered. If the parties are unable to agree on a reasonable fee for the services rendered, Attorneys and Client agree that the fee will be determined by arbitration proceedings before a neutral affiliated with the Judicial Arbitration a nd Mediation Services (J AMS); in any event, Attorneys and Client agree that the fee dete rmined by arbitration shall not exceed 25% of the gross recovery as defined in this Agreement. If there is no recovery by Client, no fee will be due to Attorneys.
D. Order or Agreement for Payment of Attorneys’ Fees or Costs by Another Party.
If a court orders, or the parties to the dispute agree, that another party shall pay some or all of Client’s attorneys’ fees, costs, or both, Attorneys shall be entitled to the greater of (i) the amount of any attorney’s fees awarded by the court or included in the settlement or (ii) the percentage or other formula applied to the recove ry amount not including such attorney’s fees.
8. COSTS AND EXPENSES.
A. General
In addition to paying legal fees, Client authorizes Attorneys to incur all reasonable costs and expenses and to hire any investigators, consultants, or expert witnesses. Attorneys will advance all costs and expenses. Attorneys will deduct those costs and expenses out of Client’s recovery after attorney’s fees have been deducted. If there is no recovery, Client will not be required to reimburse Attorneys for costs and fees. In the event a recovery is less than incurred costs and expenses, Client wi ll not be required to reimburse Attorneys for costs/expenses, above and beyond the recovery, and fees.
B. Document Management Costs
Attorneys have explored two means of managing litigation documents:
(1) Outsource to outside vendor. Attorneys contract with
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outside vendors to collect, copy, and store documents. Attorneys advance these costs, and Client reimburses Attorn eys out of any recovery.
(2) Internal processing. Attorney s can create an internal document management system by obtaining comput er software, hardware, and related resources ne cessary to collect, copy, store, organize, and produce documents a nd data. This option obviates the need to outsource this work to an outside vendor.
Attorneys represent that the second option above, internal processing, is the better choice for promoting efficiency, saving Clie nt costs, and limiting legal expenses.
Client agrees that Attorneys may purchase the resources necessary to provide an internal document management system for Client. Attorneys may, however, use outside vendors where costs or circumstances warrant.
9. SHARED EXPENSES. Client understands that Attorneys may incur certain expenses that jointly benefit multiple clients, including, for exam ple, expenses for travel , experts, and copying.
Client agrees that Attorneys may, in their discretion, divide such expenses equally or pro rata among such clients, and deduct Client’s portion of thos e expenses from Client’s share of any recovery.
Prior client approval is not requ ired for shared expenses. Neve rtheless, Client shall only be responsible for prudent, fair and reasonable expenses.
10. DIVISION OF ATTORNEYS’ FEES. At the conclusion of the case, if a recovery is made on behalf of Client, Client understands and agrees that the total Attorneys’ fee will be divided as follows:
Baron & Budd, P.C. will receive fifty per cent (50%) and Cossich, Sumich, Parsiola & Taylor LLC will receive fifty percent (50%).
11. MULTIPLE REPRESENTATIONS. Client understands that A ttorneys do or may represent many other individuals with actual or potential TCP related litigation claims. Attorneys’ representation of multiple claimants at the same time may create certain actual or potential conflicts of interest in that the interests and objectives of each client individually on certain issues are, or may become, inconsistent with the interests and objectives of the other. Attorneys are governed by specific rules and regulations relating to professional responsibility in representation of clients, and especially where conflicts of interest may arise from representation of multiple clients against the same or similar defendants, Attorneys must advise clients of any actual or potential conflicts of interest and obtain their informed written consent to our representation when actual, present, or potential conflicts of interest exist. Client ha s conferred with its own separate corporate or municipal counsel, and has determin ed that it is in its own best interests to waive any and all potential or actual conflicts of wh ich Client is currently aware as the result of Attorneys’ current and continuing representation of other entities in similar litigation. By signing this agreement, Client states that (1) it has been advised of the potential conflicts of interest which may be or are associated with our representation of Client and other multiple claimants; (2) it nevertheless wants
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Attorneys to represent Client; and (3) Client cons ents to Attorneys’ repr esentation of others in connection with TCP litigation. Client remains completely free to seek other legal advice at any time even after signing this agreement.
12. POWER OF ATTORNEY. Client gives Attorn eys a power of attorney to execute all reasonable and necessary documents connected with the handling of the litigation associated with this cause of action. Prior to signing any documents relative to settlement agreements, compromises and releases, Attorneys will confer with and advise Client of the contents and ramifications of such documents. Under no circumstances will Client’s claims be settled without obtaining Client’s advance consent.
13. SETTLEMENT. Attorneys will not settle Client’s claim without the advance approval of Client, who will have the absolute right to accept or reject any settlement. Attorneys will notify Client promptly of the terms of any settlement offer received by Attorneys.
14. AGGREGATE SETTLEMENTS. Often times in cases where Attorneys represent multiple clients in similar litigation, the opposing parties or defendants attempt to settle or otherwise resolve all of Attorneys’ cases in a group or groups, by making a single settlement offer to settle a number of cases simultaneously. There exists a potential conf lict of interest whenever a lawyer represents multiple clients in a settlement of this type because it necessitates choices concerning the allocation of limited settlement amounts among the multiple clients. However, if all clients consent, a group settlement can be accomplished and a single offer can be fairly distributed among the clients by assigning settlement amounts based upon the strengths and weakne sses of each case, the relative nature, severity and extent of injuries, and individual case evalua tions. In the event of a group or aggregate settlement proposal, Attorneys may im plement a settlement pr ogram, overseen by a referee or special master, who ma y be appointed by a court, desi gned to ensure consistency and fairness for all claimants, and which will assign various settlem ent values and amounts to each client’s case depending upon the facts and circumstances of each individual case. Client authorizes Attorneys to enter into and engage in group settlement discussions and agreements that may include Client’s individual claims. Al though Client authori zes Attorneys to engage in such group settlement discussions and agreements, Client retains the right to approve any settlement of Client’s claims, and Attorneys are required to obtain Client’s approval before settling Client’s claims.
15. ATTORNEYS’ LIEN. Attorneys will have a lien for attorneys’ fees and costs advanced on all claims and causes of action that are the subject of the repr esentation of Client under this Agreement and on all proceeds of any recovery obtained (whether by settlement, arbitration award, or court judgment). If no recovery is obtained for Client, or if a lien is obtained that exceeds the recovery by the Client, any lien in excess of the recovery for Client shall be released by Attorneys.
16. DISCHARGE OF ATTORNEYS. Client may discharge Attorneys at any time by written notice effective when received by Attorneys. Unle ss specifically agreed by Attorneys and Client, Attorneys will provide no further services and a dvance no further costs on Client’s behalf after receipt of the notice. If Attorneys appear as Client’s attorneys of record in any proceeding, Client will execute and return a substitution-of-attorney fo rm immediately on its receipt from Attorneys.
In the event that Attorneys are discharged, for whatever reason, Attorneys and Client agree that
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Attorneys will have a lien for attorneys’ fees and costs advanced on all claims and causes of action that are the subject of the representation of Client under this Agreement and on all proceeds of any recovery obtained (whether by settlement or court judgment). If no recovery is obtained for Client or if a lien is obtained that exceeds the recovery by the Client then any lien in excess of the recovery for Client shall be released by Attorneys.
17. WITHDRAWAL OF ATTORNEYS. Client and Attorneys agree that if, after investigation of the facts and research of the law, Attorneys be lieve that Client’s claims are of limited merit, Attorneys may terminate this agreement with Client prior to and without fi ling suit. Termination releases Attorneys from any further action on Clie nt’s claim and discharges Attorneys from this Agreement. Termination will be effected via deliv ery service with signature receipt to the last address provided by Client to Attorneys. After filing suit, Attorneys may withdraw with Client’s consent as permitted under the governing Rules of Professional Conduct. The circumstances under which the Rules permit such withdrawal include, but are not limited to, the following: (a) the representation will result in violation of the rule s of professional conduct or other law; (b) if withdrawal can be accomplished wit hout material adverse effect on th e interests of Client; (c) if Client persists in a course of action involving Attorneys’ services that Attorneys reasonably believe is criminal or fraudulent or if Client has used Attorneys’ services to perpetrate a crime or fraud; (d) if Client insists upon pursuing an objective that Attorneys consider repugnant or imprudent; (e) if Client fails substantially to fulfil an obligation to Attorneys regarding Attorneys’ services and has given reasonable warning that A ttorneys will withdraw unless the ob ligation is fulfilled; (f) the representation will result in an unreasonable financial burden on A ttorneys; or (g) if other good cause for withdrawal exists. U pon termination of representation, Attorneys shall take steps to the extent reasonably practicable to protect Client’s interests, will give reasonable notice to Client, will allow time for employment of other counsel, will surrender papers and property to which Client is entitled, and will refund any advance payment of fee that has not been earned. Notwithstanding Attorneys’ withdrawal, Attorneys and Client agree that in all such cases described herein above, Attorneys will have a lien for attorneys’ fees and costs advanced on all claims and causes of action that are the subject of the representation of Client under this Agreement and on all proceeds of any recovery obtained (whether by settlement or court judgment). If no recovery is obtained for Client or if a lien is obtained that exceeds the recovery by the Client any lien in excess of the recovery for Client shall be released by Attorneys.
18. RELEASE OF CLIENT’S PAPERS AND PROPER TY. At the termination of services under this Agreement, Attorneys will release promptly to Client on request all of Client’s papers and property. “Client’s paper an d property” includes corresponde nce, deposition transcripts, exhibits, experts’ reports, legal documents, physical evidence, and other items reasonably necessary to Client’s representation, whether Client has paid for them or not.
19. INDEPENDENT CONTRACTOR. The relationshi p to Client of Attorneys, and any associate counsel or paralegal provided through A ttorneys, in the performa nce of services under this Agreement is that of Client to independent c ontractor and not that of Client to employee. No other wording in this Agreement shall stand in derogation of this subparagraph. The fees and costs paid to Attorneys for legal services rendered pursuant to this Agreement shall be deemed revenues of their law office practices and not as remu neration for individual em ployment apart from the
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business of that law office.
20. NOTICES. Client agrees to receive communi cations and documents from Attorneys via email. Attorneys agree to rece ive communications and documents from Client via email. In the event that Client needs to send hardcopy documents or other physical material s, Client agrees to send those to Attorneys at the following addresses:
Baron & Budd, P.C.
3102 Oak Lawn Ave., Suite 1100
Dallas, Texas 75219
Cossich, Sumich, Parsiola & Taylor LLC
8397 Highway 23, Suite 100
Belle Chasse, Louisiana 70037
21. DISCLAIMER OF GUARANTEE. Although Attorneys may offer an opinion about possible results regarding the subj ect matter of this Agreement, Attorneys cannot guarantee any particular result. Client acknowledges that At torneys have made no promises about the outcome and that any opinion offered by Attorneys in the future will not constitute a promise, guarantee, or warranty.
22. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties.
23. SEVERABILITY IN EVENT OF PARTIAL I NVALIDITY. If any pr ovision of this Agreement is held in whole or in part to be une nforceable for any reason , the remainder of that provision and of the entire Agreement will be severable and remain in effect.
24. MODIFICATION BY SUBSEQUENT AGREEMENT. The parties may agree to modify this Agreement by executing a new written agreement.
25. DISPUTES ARISING UNDER AGREEMENT. C lient and Attorney s agree that any controversy, claim, or dispute (including issues relating to the fee) arising out of or relating to this Agreement, its performance, and/or its breach will be resolved by arbitration proceedings before a neutral associated with the Judicial Arbitration and Mediation Services (JAMS). Disagreement as to the fair market value of any non-monetary prope rty or services, however, will be resolved in accordance with paragraph 7.C.
26. ATTORNEY’S FEES AND COSTS IN ACTI ON ON AGREEMENT. The prevailing party in any action or proceeding to enforce an y provision of this Agreement will be awarded reasonable attorney’s fees and costs incurred in that action or proceeding or in efforts to negotiate the matter.
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27. EFFECTIVE DATE OF AGREEMENT. This Agreement is effective when the Client signs the Agreement. This Agreement applies to any services provided by Attorneys before its effective date.
28. MULTIPLE COUNTERPARTS. This Agreemen t will be effective whether or not executed in multiple counterparts.
This agreement and its performance are subject to the Louisiana Rules of Professional Conduct, the Texas Disciplinary Rules of Professional Conduc t, and the California Rules of Professional Conduct.
Agreed to by: Date: _____________________
CITY OF STOCKTON
Printed name and title (“Client”)
Signature
ATTORNEYS
Scott Summy, Baron & Budd, P.C.
Phil Cossich, Cossich, Sumich, Parsiola & Taylor LLC