MONTEGNA & THICKSTUN
Attorneys at Law
A Partnership of Law Corporations
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John Thickstun, Esq.
Tel.: (808) 244-7011
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294 Shasta St., Suite A
Chula Vista, CA
91910
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Gregory Montegna, Esq.
Tel.: (619) 460-4111
Fax: (877) 207-6892
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CALIFORNIA WILDFIRE
RETAINER AGREEMENT AND AUTHORIZATION
ATTORNEY-CLIENT CONTINGENCY FEE AGREEMENT
This is the written fee agreement (“Agreement”) California law requires attorneys to have with their clients. Montegna & Thickstun, A Partnership of Law Corporations (“Attorneys”) and {varClientName} (“Client”) hereby agree that Attorneys will provide legal services to Client on the terms set forth below.
This Agreement will not take effect, and Attorney will have no obligation to provide legal services, until: (a) Client returns a signed copy of this Agreement; (b) Attorneys acknowledge acceptance of representation by counter-signing this Agreement and returning a fully executed copy to Client.
1. SCOPE OF SERVICES AND ATTORNEY’S DUTIES
Client hires Attorneys to provide legal services and to represent Client regarding any claims against {varDefendant} and/or others for injuries and damages suffered by Client as a result of the fires which occurred on or about {varFire}. Attorneys will provide those legal services reasonably required to represent Client. Attorneys will take reasonable steps to keep Client informed of progress and to respond to Client’s inquiries. A separate written agreement for these services or services in any other matter not described above will be required. Attorneys are representing Client only in the matter described above.
2. CLIENT’S DUTIES
Client agrees to be truthful with Attorneys and not withhold information. Further, Client agrees to cooperate, to keep Attorneys informed of any information or developments which may come to Client’s attention, to abide by this Agreement and to keep Attorneys advised of Client’s address, telephone number and whereabouts. Client will assist Attorneys by timely providing necessary information and documents. Client agrees to appear at all legal proceedings when Attorneys deem it necessary, and generally to cooperate fully with Attorneys in all matters related to the preparation and presentation of Client’s claims. Client’s failure to meet these obligations shall be deemed good cause, permitting attorneys to withdraw pursuant to paragraph 7 below.
3. LEGAL FEES
Attorneys will only be compensated for legal services rendered if a recovery is obtained for Client. The fee to be paid to Attorneys will be a percentage of the “gross recovery”. The term “gross recovery” means, the total of all amounts received by settlement, arbitration award or judgment, including any award of attorney’s fees, as well as the reasonable value of any non-monetary recovery or proceeds. Attorneys’ fee will be twenty-five percent (25%) of the gross recovery.
4. NEGOTIABILITY OF LEGAL FEES
Client understands that the rates set forth above are not set by law, but are negotiable between Attorney and Client.
5. COSTS AND LITIGATION EXPENSES/OTHER ATTORNEY’S FEES
Attorneys will incur various costs and expenses in performing legal services under this Agreement. If there is no recovery, Client will not be responsible for reimbursement/payment of any fees and costs.
Client agrees and understands that payment/reimbursement for all costs, disbursements, and expenses paid/advanced by Attorney in connection with this matter on Client’s behalf will be paid from the recovery.
Costs, disbursements and litigation expenses commonly include court fees, jury fees, service of process charges, court and deposition reporters’ fees, interpreter/translator fees, outside photocopying and reproduction costs, notary fees, long distance telephone charges, messenger and other delivery fees, postage, deposition costs, travel costs, mileage, transportation, meals and hotel costs, investigation expenses, consultant, expert witness, professional mediator, arbitrator and/or special master fees and other similar items.
To aid in the preparation or presentation of Client’s case, it may become necessary to hire expert witnesses, consultants, or investigators. Attorneys will select any expert witnesses, consultants, or investigators to be hired.
Client authorizes Attorneys to incur all reasonable costs and to hire any investigators, consultants, or expert witnesses reasonably necessary in Attorneys’ judgment. Attorneys may find it necessary and/or in the Clients' best interests to obtain the services of legal, clerical, or other personnel who are not attorneys’ regular employees, but outside independent contractors.
6. LIEN
Client hereby grants Attorneys a lien on all claims or causes of action that are the subject of Attorneys representation for any sums due and owing to Attorneys. The lien shall attach only to any recovery Client may obtain whether by arbitration award, judgment, settlement or otherwise. Attorneys’ lien shall be primary and shall be paid first before any other lien.
7. DISCHARGE AND WITHDRAWAL
Client may discharge Attorneys at any time. Attorneys may withdraw with Client’s' written consent or for good cause. Clients understand and agree that good cause includes, but is not limited to, Client's breach of this Agreement, Client’s refusal to cooperate with Attorney or to follow Attorneys’ advice on a material matter, misrepresentation by Client of any material fact(s) or circumstances, problems of proof or evidence affecting liability or damages that would render prosecution of Client’s case uneconomical to either Clients or Attorney or any fact or circumstance that would render Attorneys’ continuing representation unlawful or unethical.
8. DISCLAIMER OF GUARANTEE
Nothing in this Agreement and nothing in Attorney’s statements to Client will be construed as a promise or guarantee about the outcome of this matter. Attorney makes no such promises or guarantees. Attorney’s comments about the outcome of this matter are expressions of opinion only, are neither promises nor guarantees, and will not be construed as promises or guarantees.
9. ARBITRATION OF DISPUTES
Attorneys and Client agree that should any dispute arise between them, they must be mediated first, before any claims are filed. Specifically, any and all disputes, controversies or claims arising out of, or related to this Agreement and/or Attorneys representation of Client, including claims of malpractice (collectively referred to herein as “Dispute” or “Disputes”), shall be submitted to mediation at the offices of Judicial Arbitration & Mediation Services, Inc. (“JAMS”) in San Francisco, California before a retired judge or other mediator affiliated with JAMS, agreed to between the parties and, if the parties cannot agree, before a retired judge selected by JAMS. No petition for arbitration can be filed until after this agreed-upon mediation has occurred, and any petition for arbitration (or litigation) filed prior to conclusion of this mediation shall be subject to dismissal, pursuant to this Agreement. Client will pay one-half of the actual cost of the mediation, but each party will be responsible for his or her own attorneys’ fees and preparation costs. The parties agree that any Dispute, whether submitted to mediation or not, will not be litigated in court. Rather, any Dispute, which is specifically defined above to include claims of malpractice, will be submitted to mandatory binding arbitration before JAMS. By signing this Agreement, Client and Attorneys agree to arbitration and waive the right to a court or jury trial and the right to appeal. Any Disputes shall be decided in San Francisco, California, applying California law. Client is not waiving rights to arbitration before the San Francisco County Bar Association.
10. WAIVER OF DISQUALIFICATION; CONFIDENTIALITY
Although we feel it is unlikely, if an irreconcilable conflict of interest later develops, it might not be possible for our firm to continue to simultaneously represent the clients with conflicting interests. One or more of the clients would have to hire his/her own attorney. We would likely continue to represent certain clients.
In the unlikely event of a future dispute between any of the clients, the attorney-client privilege, that is, attorney-client confidentiality, generally will not protect communications that have taken place with the firm. As part of representing multiple clients, it is often helpful to the case to use information obtained from some clients in handling the case for all clients. Information regarding Client can only be disclosed with Client’s prior written approval.
11. AUTHORIZATION TO DISCLOSE INFORMATION
Client hereby authorizes Attorneys to provide any and all information, documentation, photographs, videotape Attorneys deem necessary or appropriate to the adverse party and/or adverse party’s insurance company who may have authority or decision making responsibility in determining whether to compensate Client for damages and/or the amount of compensation.
12. GOVERNING LAW
Attorneys and Client agree that California Law shall govern this contract.
13. EFFECTIVE DATE
This Agreement shall take effect when executed by Client and Attorneys. The effective date of Agreement shall be retroactive to the date Attorneys first performed services for Client.