The scope of this engagement may be expanded to include additional matters or loans by supplement to this Agreement.
A. Counsel Functions. Counsel will perform such legal services relative to the matters set forth herein which are necessary to effectively represent Client. Without limitation, Counsel shall:
1. Send Client copies of all primary pleadings filed in the matter and copies of all discovery requests and responses or answers.
2. Make reasonably available to Client, for reading in Counsel’s office during normal business hours, all written materials concerning the matter and, at Client’s request and expense, provide Client with copies of all such materials.
B. Client Functions. Client agrees:
1. To pay Counsel for all attorneys’ fees earned, and costs, charges and expenses incurred by Counsel regarding the matter.
2. To cooperate fully with Counsel and to provide all information known by or available to Client regarding the matter.
3. To keep Counsel advised of the whereabouts of personnel involved in the matter, and to cause such personnel to appear on reasonable notice at depositions, court appearances, and conferences which Counsel advises are necessary to attend. In this regard, reasonable notice means at least ten (10) business days advance notice of court settings, depositions, or other appearances.
C. Authorization. Client authorizes and directs Counsel to take all actions which Counsel deems advisable on Client’s behalf in the matter. Client further hereby expressly authorizes Counsel to obtain, on behalf of Client, and in the name of Client, all information, documents, reports, or other papers relative or pertaining to the subject matter of Counsel’s representation of Client. Client hereby appoints Counsel as attorney-in-fact for the special purpose of signing any authorization, report, or other information of any kind pertaining to the matters.
D. No settlement of any nature shall be made for any of the aforesaid claims of Client without the complete approval of Client, nor shall Client obtain any settlement on such claims without the complete approval of Counsel.
E. Counsel is hereby granted a power of attorney so that Counsel may have full authority to prepare, sign and file all legal instruments, pleadings, drafts, authorizations and papers that shall be reasonably necessary to conclude this representation, including settlement and/or reducing to possession any and all monies or other things of value due to Client under this claim as fully as if Client could do so in person. Counsel is also authorized and empowered to act as Client’s negotiator in any and all settlement negotiations concerning the subject of this Agreement. Counsel is also authorized and empowered to endorse Client’s signature on the back of all checks made out to Client and Counsel, including but not inclusive of settlement of their claim checks and reimbursement checks.
II. FEES AND EXPENSES.
A. Method of Determining Fee. Client and Counsel agree that Counsel’s remuneration shall be determined as follows:
1. Counsel undertakes this matter on a contingent fee basis. It is contemplated that the work to be performed hereunder, shall be performed primarily by Michael A. Pita and/or Mark Thiessen.
2. Other attorneys may be engaged to assist Counsel in the representation of Client. In no event shall Counsel’s fee increase merely because additional counsel is retained.
3. Client grants to counsel a contingent interest in the matter undertaken. Client hereby assigns to counsel a contingent interest in this litigation, including but not limited to recoveries made against Client’s insuruance carrier (i.e. Personal Injury Projection and/or Uninsured/Undersinsured Coverages). The amount of such contingent is as follows:
(a) 33 1/3% of any recovery or settlement before trial; 40% of any recovery or settlement during or after trial; and 50% of any recovery or settlement if the matter is appealed after trial. Such contingent fee interest expressly granted and signed to counsel shall survive the termination of this agreement under paragraph IV, hereof.
B. Costs and Expenses.
1. Counsel may advance any and all of the expenses necessary in the investigation, preparation, and trial of this matter. All reasonable expenses shall be paid and reimbursed out of the Client’s share of any settlement or recovery, if not previously paid. All expenses incurred in the litigation of any claim will be itemized and billed accordingly.
2. Client authorizes Counsel to retain and agrees to pay the fees or charges of persons hired by Counsel to perform necessary services related to the matters. These fees or charges may be incurred and/or paid in the name of Client. Such persons may include, but are not limited to, court reporters, accountants, investigators, expert witnesses, and other attorneys; provided, however, that Counsel agrees to obtain Client’s prior approval before incurring any costs or charges in excess of $1,000. Client authorizes Counsel, in his discretion, to direct such vendors to send requests for payment directly to Client.
C. Administrative Charges.
1. Client acknowledges that Counsel shall charge Client for certain administrative expenses and Client agrees to reimburse Counsel for such charges. Administrative expenses and the method of charging such expenses are as follows:
a. Courier service – as incurred;
b. Long distance telephone – as incurred;
c. Copying expense – 10 cents per copy;
d. Travel expense – actual costs as incurred; and
e. Court costs, filing fees, service fees, etc. – as incurred.
No other administrative expenses shall be charged.
III. SPECIAL TERMS AND CONDITIONS.
A. Client understands that its work is to be performed primarily by Michael A. Pita and/or Mark Thiessen. However, other attorneys may work on specific issues.
B. Client agrees that this Agreement does not include or contemplate counsel testifying as an expert or otherwise in any proceeding, except in connection with seeking attorneys’ fees on behalf of the Client.
IV. TERMINATION.
A. Termination of Representation. The relationship established by this Agreement is subject to termination as follows:
1. Counsel reserves the right to withdraw from representation, on reasonable notice, if Client fails to honor this Agreement or for any reason as permitted or required under the Texas Code of Professional Responsibility or as permitted or required by the Rules of Court of the State of Texas. Notification of intent to withdraw shall be made in writing to Client. In the event of such withdrawal, Client agrees to promptly pay Counsel all costs, charges and expenses incurred prior to termination.
2. Client may terminate this Agreement at will. Notification of the termination shall be made in writing to Counsel. In the event of termination by Client, Client shall promptly pay Counsel all costs, charges, and expenses incurred pursuant to the terms of this Agreement prior to termination.
3. Upon termination, Counsel shall deliver to Client all of Counsel’s files in the matter. Counsel may charge client for reasonable time incurred in reviewing any substitution of Counsel pleadings or like documents appropriate in the circumstances. No other charges or expenses shall be billed to Client.
V. GENERAL.
A. Effort and Outcome. Counsel agrees to use its best efforts in representing Client in this matter; however, Client acknowledges that Counsel has given no assurances regarding the outcome of this matter.
B. Representations. It is understood and agreed that Counsel cannot warrant or guarantee the outcome of the case, and that Counsel has not represented to Client that the Client will recover all or any part of the funds desired by Client. Client has also been informed that obtaining a judgment does not guarantee that the opposing party will be capable of or willing to satisfy the judgment in whole or in part.
C. Association of Other Attorneys. Counsel may, at the sole discretion and expense of Counsel, associate any other attorneys in the representation of the aforesaid claims of Client.
D. Texas Law to Apply. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Harris County, Texas.
E. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns.
F. Legal Construction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalidity, illegal, or unenforceable provision had never been contained herein.
G. Prior Agreement Superseded. This Agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understanding or written or oral agreement between the parties respecting the within subject matter.
H. Complete Integration Binding Upon All Parties. This Agreement contains the entire agreement between Client and Counsel regarding the matter and the fees, costs, charges, and expenses to be paid relative thereto. This Agreement shall not be modified except by written agreement signed by Client and Counsel. This Agreement shall be binding upon Client and Counsel and their respective heirs, executors, legal representatives, and successors.
V. ACKNOWLEDGEMENT.
I certify and acknowledge that I have had the opportunity to read this Agreement, and I further state that I have voluntarily entered into this Agreement fully aware of its terms and conditions.