Loading...
HomeMy WebLinkAboutCA Attorney-Client Fee Agreement April 2022W V B R `A'aostaffe, von. Loewer)feldt Busch & Radwi.k LLP 100 Pine Street, Suite 22S0, San Francisco, CA 94111 415-357-8900 Main 415-3S7-8910 Fax wvbrlawcom VIA E-MAIL Rob.Epstein@cityofsanrafael.org Laraine. Gittens@cityofsanrafael.org Mr. Rob Epstein City of San Rafael Office of the City Attorney 1400 5th Avenue San Rafael, CA 94901 Re: ATTORNEY-CLIENT FEE AGREEMENT Dear Mr. Epstein, This letter confirms that City of San Rafael ("San Rafael") has engaged the law firm of Wagstaffe, von Loewenfeldt, Busch & Radwick LLP ("Attorney") to perform the legal services described on the terms set forth below. This Agreement will not take effect, and Attorney will have no obligation to provide legal services, until: (a) San Rafael returns a signed copy of this Agreement and (b) Attorney acknowledges acceptance of representation by counter -signing this Agreement and returning a fully executed copy to San Rafael. However, this agreement will apply to any services Attorney may provide in connection with the engagement before the conditions described above are met. 1. Scope of Services and Attorneys' I Cities. San Rafael hires Attorney to provide legal services in the following matter: representation of San Rafael and its employees Carl Huber and Lynn Murphy (collectively "Clients") in a lawsuit filed by James Hellard against Clients and others, Northern District of California case no. 4:22- cv-02001-JSW. Attorney will provide those legal services reasonably required to represent Clients. Attorney will take reasonable steps to keep Clients informed of progress and to respond to Client's inquiries. This Agreement does not cover collection proceedings after judgment or proceedings regarding renewal of a judgment. A separate written agreement for these services or services in any other matter not describcd above will be required. Attorney is representing Clienst only in the matter described above pursuant to this agreement. Mr. Rob Epstein April 6, 2022 Page 2 2. Excluded Services. Attorney has not been retained to provide Clients with any tax advice concerning any of the services described in paragraph 1 and has no duty to do so. Any documents prepared by Attorney or results reached in litigation may have specific tax ramifications. To be sure Clients understand and are certain of all the potential tax consequences, Clients should consult with independent tax advisors regarding these matters. 3. Le al Fees. San Rafael agrees to pay by the hour at Attorney's rates as set forth below .for all time spent on Clients' matter by Attorney and Attorney's legal personnel. It is understood that no specific fee is set by law, and that this fee has been specifically agreed to between the parties. Current hourly rates for legal personnel are as follows: James Wagstaffe 650 /hour Michael von Loewenfeldt 650 /hour Frank Busch .500 /hour Maria Radwick 500 /hour Associates 350 /hour Paralegals 200 /hour The rates on this schedule are subject to change on 90 days written notice to San Rafael. If San Rafael declines to pay increased rates, Attorney will have the right to withdraw as attorney for Clients if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law. Attorneys may employ, subcontract, or associate with additional lawyers or paralegals to work on Clients' matter at rates equal to or less than the above. Clients will have the right to consent to the association of any lawyer or paralegal not directly employed by Attorneys. 4. Costs and father Charges. (a) Attorney may incur and advance, in its discretion, various costs and expenses in performing legal services under this Agreement. San Rafael agrees to pay for all costs, disbursements and expenses in addition to the hourly fees. The costs and expenses commonly include, service of process charges, filing fees, court and deposition reporters' fees, translator/interpreter fees, jury fees, notary fees, deposition costs, long distance telephone charges, messenger and other delivery fees, postage, outside photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultants' fees, expert witness, professional, mediator, arbitrator and/or special master fees and other similar items. (b) Experts, Consultants and Investigators. To aid in the preparation or presentation of Clients' case, it may become necessary to hire expert witnesses, Mr. Rob Epstein April 6, 2022 Page 3 consultants or investigators. San Rafael agrees to pay such fees and charges. Attorney will select any expert witnesses, consultants or investigators to be hired, and Clients will be informed of persons chosen and their charges. (c) Attorney will obtain San Rafael's consent before incurring any individual costs in excess of $ 1,000. (d) Costs awarded in litigation. San Rafael understands that if Clients' case proceeds to court action or arbitration, the court may award attorney fees as well as some or all of the type of costs enumerated above to the other party or parties. Payment of such attorney fees and costs shall be the sole responsibility of Clients. Similarly, other parties may be required to pay some or all of the fees and costs incurred by the Clients. Clients acknowledge that any such determination does not in and of itself affect the amount of the fees and costs to be paid by San Rafael to Attorney pursuant to this agreement. 5. Bifte. Attorney will send San Rafael periodic bills for fees and costs incurred or advanced. Each bill will be payable within 30 days of its mailing date. San Rafael may request a bill at intervals of no less than 30 days. San Rafael agrees to promptly review all bills rendered by Attorney and to promptly communicate any objections, questions, or concerns about their contents. You and we further agree that the fees (but not costs) reflected in our periodic statements are subject to a five percent (5%) discount when timely paid. If payment is not received within thirty days of the date on the bill, the discount will be rescinded. No discount for timely payment will be available so long as your account includes fees or costs outstanding for more than 30 days. 6. _Client Duties and Cooperation. Clients agree to be truthful with Attorney and not withhold information. Further Clients agree to cooperate, to keep Attorney informed of any information or developments which may come to Clients' attention, to abide by this Agreement, to pay Attorney's bills on time, and to keep Attorney advised of Clients' address, telephone number and whereabouts. Clients will assist Attorney by timely providing necessary information and documents. Clients agree to appear at all legal proceedings when Attorney deems it necessary, and generally to cooperate fully with Attorney in all matters related to the preparation and presentation of Clients' claims. 7. Discharze and Withdrawal. Clients may discharge Attorney at any time. Attorney may withdraw with Clients' consent or for good cause or if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law. Among the circumstances under which Attorney may withdraw are: (a) with the consent of Clients; (b) Clients' conduct renders it unreasonably difficult for the Attorney to carry out the employment effectively; and/or (c) San Rafael fails to pay Attorney's fees or costs as required by this Agreement. Notwithstanding the discharge, Clients will remain Mr. Rob Epstein April 6, 2022 Page 4 obligated to tray Attomey at the agreed rates for all services provided and to reimburse Attorney for all costs advanced. 8. Conclusion of Services. When Attorney's services conclude, whetherby completing the set -vices covered by this Agreement, or by discharge or withdrawal, all unpaid charges for fees or costs will be due and payable inunediately. Disclaimer of Guarantee anti Eslimate•s. Nothing in this Agreement and nothing in Attorney's statements to Clients will be construed as a promise or guarantee about the outcome of the matter. Attorney makes no such promises or guarantees. Attorney's comments about the outcome of the matter are expressions of opinion only, are neither promises nor guarantees, and will not be construed as promises or guarantees. Any deposits made by San Rafael, or estimate of fees given by Attorney, are not a representation of a flat fee and will not be a limitation on fees or a guarantee that fees and costs will not exceed the amount of the deposit or estimate. Actual fees may vary significantly from estimates given. 10. Professional Liability Insurance. Attorneys have professional liability insurance applicable to the legal services to be provided to you. 11. Entire AL'reemeni, Severability, and ilodification. This Agreement contains the entire agreement of the patties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect. This Agreement may be modified by subsequent agreement of the parties only by an instrument in writing signed by both of them. THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE ATTORNEY FIRST PROVIDED SERVICES. CLIENT WILL RECEIVE A FULLY EXECUTED COPY OF THIS AGREEMENT. DATED: Li - to - Z L— DATED: 1 DATED: CARL HUBER Mr, Rob Epstein April 6, 2022 Page 4 obligated to pay Attorney at the agreed rates for all services provided and to reimburse Attorney for all costs advanced. 8. Conclusion of Services. When Attorney's services conclude, whether by completing the services covered by this Agreement, or by discharge or withdrawal, all unpaid charges for fees or costs will be due and payable immediately. 9. Disclaimer of Guarantee and Estimates. Nothing in this Agreement and nothing in Attorney's statements to Clients will be construed as a promise or guarantee about the outcome of the matter. Attorney makes no such promises or guarantees. Attorney's comments about the outcome of the matter are expressions of opinion only, are neither promises nor guarantees, and will not be construed as promises or guarantees. Any deposits made by San Rafael, or estimate of fees given by Attorney, are not a representation of a flat fee and will not be a limitation on fees or a guarantee that fees and costs will not exceed the amount of the deposit or estimate. Actual fees may vary significantly from estimates given. 10. Professional Liability Insurance. Attorneys have professional liability insurance applicable to the legal services to be provided to you. 11. Entire Agreement Severability, and Modification. 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. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect. This Agreement may be modified by subsequent agreement of the parties only by an instrument in writing signed by both of them. THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE ATTORNEY FIRST PROVIDED SERVICES. CLIENT WILL RECEIVE A FULLY EXECUTED COPY OF THIS AGREEMENT. DATED: DATED: 1 DATED- _ Z. '2 CITY OF SAN RAFAEL BY: Its: LYNN MURPHY CARL HUBER Mr. Rob Epstein April 6, 2022 Page 5 DATED: 4/27/2022 Wagstaffe, von Loewenfeldt, Busch & Radwick LLP By: —4, von Lo wcnfeldt 1 6 Mr. Rob Epstein April 6, 2022 Page 6 Joint/Multiple Client Disclosure and Consent Form Clients City of San Rafael, Carl Huber, and Lynn Murphy ("Joint Clients") have asked Attorney to jointly represent them in Northern District of California case number 4:22-cv-02001-JSW. All fees and costs charged by Attorney will be paid by the City of San Rafael and not the other clients (each of whom is an employee of the City). While joint representation may result in economic or tactical advantages, it also involves risks and potential conflicts of interest. The California Rules of Professional Conduct require that before an attorney may concurrently represent two or more clients in a matter, the attorney must: (1) inform each client in writing of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the each client arising from the proposed joint representation, and (2) obtain the informed written consent of each client. The purpose of this disclosure is to set forth potential conflicts of interest relating to the proposed joint representation, and what Attorney perceives to be the relevant circumstances and the actual and/or reasonably foreseeable adverse consequences. Assuming that all Clients provide their informed written consent, Attorney agrees to represent Joint Clients in Northern District of California case number 4:22- cv-02001-JSW. Attorney understands that this arrangement is desired by Joint Clients as a means of securing the economic and tactical advantage of joint representation. California law and Rule 1.7 of the Rules of Professional Conduct require Attorneys to provide written disclosure of any actual and reasonably foreseeable adverse consequences arising from the proposed joint representation, and to obtain all clients' informed written consent to the joint representation. While Attorneys do not perceive any actual or reasonably foreseeable adverse consequences at this time, Clients should consider the following potential adverse consequences prior to consenting to the proposed joint representation: (1) When an attorney represents only one client, there is no concern regarding shared or divided loyalties; rather all of the attorney's efforts are focused on representing the interests of that one client. When an attorney represents two or more clients in the same matter, the attorney acts to protect the interests of each client, which may result in divided, or at least shared, attorney-client loyalties. Issues may arise as to which Attorney's representation of any one client may be limited by Attorney's representation of any other joint client. While neither Attorney nor Clients are aware of any such issues at this time, divided loyalty is always a risk in the event of joint representation. (2) Attorneys owe clients a duty to preserve secrets and confidential communications, unless that duty is excused by the State Bar Act, the Rules of Professional Conduct or other law. When an attorney represents more than one client in a matter, pursuant to Evidence Code §962 and California case, law there is no attorney-client privilege with respect to communications that take place between any of the Joint Clients and the attorney should any of the Joint Clients ever have a dispute in which those communications are relevant. Attorney has a duty to keep all of the Joint Clients reasonably informed of significant developments. Any information either of the Joint Clients discloses to Attorney during the course of the joint representation may be disclosed to the jointly represented clients during the course of the joint representation. (3) Conflicts may arise in particular with regard to: (a) litigation strategies that can impact different clients differently; and (b) settlement issues, inasmuch as Joint Clients may each have different ideas Mr. Rob Epstein April 6, 2022 Page 7 regarding the propriety of settlement. At this point, Attorney does not have sufficient information to evaluate whether a potential settlement presents a conflict between the Joint Clients' interests. If Attorney perceives there is a conflict with respect to a settlement demand or litigation strategy, there may be a need for Joint Clients to consult independent counsel. (4) Joint representation may also create an issue regarding custody, or control, of the original file when an attorney-client relationship ends. By signing this agreement, each of you agree that if Attorney stops representing one of you, but continues to represent the other(s), the client(s) represented by Attorney is entitled to maintain custody or control of the original file. The other party or parties is/are entitled to a copy of Client Papers as defined in Rule 1.16(e) of the Rules of Professional Conduct. (5) In the event of a dispute or conflict between any of the Joint Clients, there is a risk that Attorney may be disqualified from representing one or more of the Joint Clients or that it may otherwise be inappropriate for Attorney to continue with the joint representation absent written consent from each of the Joint Clients. (6) If there is a judgment against any of the Joint Clients which is not covered by insurance, that client may have rights of indemnity against one or more of the other parties. If any disputes should arise between the Joint Clients, Attorney will not advise or represent any of the clients in connection with any claim for contribution or indemnity that it may have against any of the other clients. Because there is currently no conflict of interest, Attorney may jointly represent Joint Clients in connection with the Northern District of California case number 4:22-cv-02001-JSW provided that Joint Clients both/all give your informed consent in writing. Each Joint Client should feel free to consult with independent counsel before finalizing your decision to proceed with the joint representation, including whether or not to sign this conflict disclosure and waiver. Attorney emphasizes that each Joint Client remains free to seek independent counsel at any time even if they decide to sign this consent. Notwithstanding the foregoing, it is Attorney's current understanding that each of the Joint Clients desires to have Attorney jointly represent them in the Northern District of California case number 4:22-cv-02001- JSW. By signing this Disclosure and Consent, each client expressly acknowledges that he/she or it (acting through its authorized representative): (1) has carefully read and fully understands the disclosures set forth above; (2) has carefully considered all of the circumstances and potential conflicts described above; (3) has had the opportunity to consult with independent counsel regarding the disclosures and consent in this agreement; and (4) agrees to the joint representation by Attorney of Clients in Northern District of California case number 4:22-cv-02001-JSW. Dated: 4(2,0— ZL Dated: Dated: Dated. 4/27/2022 CLIENT: 4 Ci' y o San afa 1 , Jim Schutz, City ManagerCLIENT: CLIENT: ATTORNEY: Mr. Rob Epstein April 6, 2022 Page 7 regarding the propriety of settlement. At this point, Attorney does not have sufficient information to evaluate whether a potential settlement presents a conflict between the Joint Clients' interests. If Attorney perceives there is a conflict with respect to a settlement demand or litigation strategy, there may be a need for Joint Clients to consult independent counsel. (4) Joint representation may also create an issue regarding custody, or control, of the original file when an attorney-client relationship ends. By signing this agreement, each of you agree that if Attorney stops representing one of you, but continues to represent the other(s), the client(s) represented by Attorney is entitled to maintain custody or control of the original file. The other party or parties Ware entitled to a copy of Client Papers as defined in Rule 1.16(e) of the Rules of Professional Conduct. (5) In the event of a dispute or conflict between any of the Joint Clients, there is a risk that Attorney may be disqualified from representing one or more of the Joint Clients or that it may otherwise be inappropriate for Attorney to continue with the joint representation absent written consent from each of the Joint Clients. (6) If there is a judgment against any of the Joint Clients which is not covered by insurance, that client may have rights of indemnity against one or more of the other parties. if any disputes should arise between the Joint Clients, Attorney will not advise or represent any of the clients in connection with any claim forcontribution or indemnity that it may have against any of the other clients. Because there is cun-ently no conflict of interest, Attorney may jointly represent Joint Clients in connection with the Northern District of California case number 4:22-ev-02001-JSW provided that Joint Clients both/all give your informed consent in writing. Each Joint Client should feel free to consult with independent counsel before finalizing your decision to proceed with the joint representation, including whether or not to sign this conflict disclosure and waiver. Attorney emphasizes that each Joint Client remains free to seek independent counsel at any tune even if they decide to sign this consent. Notwithstand ing the foregoing, it is Attorney's current understanding that each of the Joint Clients desires tohave Attomey jointly represent them in theNorthem District of California case number 4:22-cv-02001- JSW. By signing this Disclosure and Consent, each client expressly acknowledges that he/she or it (acting through its authorized representative): (1) has carefully read and fully understands the disclosures set forth above; (2) has carefully considered all of the circumstances and potential conflicts described above; (3) has had the opportunity to consult with independent counsel regarding the disclosures and consent in this agreement; and (4) agrees to the joint representation by Attorney of Clients in Northern District of California case number 4:22-cv-02001-JSW, Dated: CLI ENT: Dated: CLIENT: Dated: CLIENT: Dated: ATTORNEY: Mr. Rob Epstein April 6, 2022 Page 7 regarding the propriety of settlement. At this point, Attorney does not have sufficient information to evaluate whether a potential settlement presents a conflict between the Joint Clients' interests. If Attorney perceives there is a conflict with respect to a settlement demand or litigation strategy, there may be a need for Joint Clients to consult independent counsel. (4) Joint representation may also create an issue regarding custody, or control, of the original file when an attorney-client relationship ends. By signing this agreement, each of you agree that if Attorney stops representing one of you, but continues to represent the other(s), the client(s) represented by Attorney is entitled to maintain custody or control of the original file. The other party or parties is/are entitled to a copy of Client Papers as defined in Rule 1.16(e) of the Rules of Professional Conduct. (5) In the event of a dispute or conflict between any of the Joint Clients, there is a risk that Attorney may be disqualified from representing one or more of the Joint Clients or that it may otherwise be inappropriate for Attorney to continue with the joint representation absent written consent from each of the Joint Clients. (6) If there is a judgment against any of the Joint Clients which is not covered by insurance, that client may have rights of indemnity against one or more of the other parties. If any disputes should arise between the Joint Clients, Attorney will not advise or represent any of the clients in connection with any claim for contribution or indemnity that it may have against any of the other clients. Because there is currently no conflict of interest, Attorney may jointly represent Joint Clients in connection with the Northern District of California case number 4:22-cv-02001-JSW provided that Joint Clients both/all give your informed consent in writing. Each Joint Client should feel free to consult with independent counsel before finalizing your decision to proceed with the joint representation, including whether or not to sign this conflict disclosure and waiver. Attorney emphasizes that each Joint Client remains free to seek independent counsel at any time even if they decide to sign this consent. Notwithstanding the foregoing, it is Attorney's current understanding that each of the Joint Clients desires to have Attorney jointly represent them in the Northern District of California case number 4:22-cv-02001- JSW. By signing this Disclosure and Consent, each client expressly acknowledges that he/she or it (acting through its authorized representative): (1) has carefully read and fully understands the disclosures set forth above; (2) has carefully considered all of the circumstances and potential conflicts described above; (3) has had the opportunity to consult with independent counsel regarding the disclosures and consent in this agreement; and (4) agrees to the joint representation by Attorney of Clients in Northern District of California case number 4:22-cv-02001-JSW. Dated: CLIENT: Dated: CLIENT: Dated: `v CLIENT: Dated: ATTORNEY: RAP S 2 r� uy WITH P . CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: City Attorney Project Manager: Lisa Goldfien Extension: 3081 Contractor Name: Wagstaffe, von Loewenfeldt, Busch & Radwick, LLP Contractor's Contact: Michael von Loewenfeldt, Esq. Contact's Email: mvl@wvbrlaw.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial - ❑X _L 1 Project Manager a. Email PINS Introductory Notice to Contractor b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org X❑ 2 City Attorney a. Review, revise, and comment on draft agreement Click here to and return to Project Manager enter a date. ❑ b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor ❑ 3 Department Director Approval of final agreement form to send to ❑ contractor 4 Project Manager Forward three (3) originals of final agreement to ❑ contractor for their signature 5 Project Manager When necessary, contractor -signed agreement i ❑X N/A agendized for City Council approval * *City Council approval required for Professional Services �] Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed A / agreement 8 City Attorney Review and approve insurance in PINS, and bonds 66 (for Public Works Contracts) City Manager/ Mayor Agreement executed by City Council authorized 9 Px)/ official City Clerk Attest signatures, retains original agreement and 10 Qal�a '� forwards copies to Project Manager