INDISPENSABLE BILLING TIPS FOR ALL FAMILY LAWYERS

Transcription

INDISPENSABLE BILLING TIPS FOR ALL FAMILY
LAWYERS: FROM BASICS TO ADVANCED IDEAS
Family Law Section
Charles Hardy
Higdon Hardy & Zuflacht LLP
San Antonio
Thursday, June 18, 2015
4:45 p.m. – 5:15 p.m.
CHARLES E. HARDY
Higdon, Hardy & Zuflacht, L.L.P.
12000 Huebner Road, Suite 200
San Antonio, Texas 78230-1204
Office: 210-349-9933
Fax: 210-349-9988
E-mail: charleshardy@hhzlaw.com
Website: www.hhzlaw.com
EDUCATION
B.F.A. Journalism, Southern Methodist University, Dallas, Texas (1980)
B.B.A., Business, Southern Methodist University, Dallas, Texas (1981)
J.D., St. Mary’s University of San Antonio, San Antonio, Texas (1983)
PROFESSIONAL ACTIVITIES & CERTIFICATIONS
Partner - Higdon, Hardy & Zuflacht, L.L.P., San Antonio, TX
State Bar of Texas – Member, Family Law Council
Texas Academy of Family Law Specialist - Secretary 2011, Board Member (2006-present),
Member (1989 – present)
International Academy of Matrimonial Lawyers - Member (2009-present);
American Academy of Matrimonial Lawyers - Member (2004-present)
American Academy of Matrimonial Lawyers - TX Chapter: Past President (2010 – 2011),
Board Member 2007 to 2011, Member (2004)
Texas Family Law Foundation – Board Member (2013 – present)
San Antonio Family Lawyers Association - President (2002-2003; 1996-1997)
Director (2000-2003; 1993-1997); Member (1989 to present)
Texas Monthly Magazine “Super Lawyer” – 2006 - 2015
Bexar County Domestic Relations Office Advisory Board (2002 - 2009)
Board Certified, Family Law, Texas Board of Legal Specialization (1989 – to present)
Bexar County Community Justice Program Family Law Mentor (2002 – present)
American Bar Association’s Family Law Pro Bono Award 2005
San Antonio Bar Association’s President’s Award - 2004 & 2005
“AV Rated” by Martindale Hubbell
PUBLISHED PROFESSIONAL LEGAL ARTICLES
U. S. Enforcement of Mexican Decrees, San Antonio
Family Lawyers Association, November 17, 1999, San
Antonio, Texas.
Analysis of the Law and Key Issues: Procedures in
Divorce Process, Texas Family Law Practice, January
27, 2000, San Antonio, TX.
Applying Procedural Tactics to Enhance Your Client's
Case, Advanced Family Law Drafting Course,
December 12-13, 2002, New Orleans, Louisiana.
Playing By the Rules – Using the Rules of Civil
Procedure, The Rules of Evidence and the Family
Code to Bolster Your Child Custody Case, San Antonio
Bar Association Family Law Section Seminar, June
2003, San Antonio, TX
Advancing with the Basics – Rules of Procedure in
the 21st Century, Tarrant County Family Law Bar
Association, July 22, 2003, Fort Worth, TX
Extreme Billing Makeover - Successful Billing Practices
and the Mutual Fairness Doctrine, San Antonio Bar
Association Family Law Section Seminar, June 25,
Use of Discovery at Trial – Ultimate Trial Notebook,
December 9-10, 2004, Dallas TX
New Year’s Resolutions for Successful Billing Practices!
(40 Rules to Making More from your Practice), San
Antonio Bar Association, Family Law Section Seminar,
December 21, 2004, San Antonio, TX
Discovery and Evidence: What I’ve Forgotten Since Law
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Co-Course Director, 2009 Trial Institute, Texas
Academy of Family Law Specialists, Tampa, FL,
January 16-17, 2009
Case Law Update, 2009 Parent-Child Relationships:
Critical Thinking for Critical Issues, The University of
Texas School of Law, January 29-30, 2009, Austin, TX
Just When You Had It Figured Out – Case Law Update,
2009 Extreme Makeover, San Antonio Bar Association
Family Law Section, February 27, 2009, San Antonio,
TX
Co-CLE Director, 2009 American Academy of
Matrimonial Lawyers – Mid-Year Meeting, March 1721, 2009, Kauai, Hawaii
How to Maintain Your Financial Relationship with Your
Client, St. Mary’s Law School, April 13, 2009, San
Antonio, TX
Disproportionate Divisions, 32nd Annual Marriage
Dissolution Institute, State Bar of Texas, April 16-17,
2009, Ft. Worth, TX
Your Financial Relationship with Your Client, Family
Law Section, San Antonio Bar Association, April 21,
Successful Billing Practices for Family Lawyers, 31st
AAML Institute, Florida Chapter of AAML, April 30May 2, 2009, Orlando, Florida
Analyzing Your Property Case: A Prequel to
Characterization, Valuation and Division of the
Marital Estate, 35th Annual Advanced Family Law
Course, August 5, 2009, Dallas, TX
Help!! My Family Lawyer Stinks!! Tips for
Maintaining Good Client Relations and Protocols
For Billing and Mediation Prep, 2009 Family Law
Seminar, Corpus Christi Bar Association, October 2,
2009, Corpus Christi, TX
ADR Is NOT A 4-Letter Word! Hot Tops for Successful
Litigation Alternatives, The University of Texas
School of Law 2010 Parent-Child Relationships
Seminar, Austin, Texas
Bizarre Facts & Creative Solutions, 10th Annual
Family Law on the Front Lines, July 1-2, 2010,
San Antonio, Texas
More Money and Less Stress: Law Office Management
and Technology, State Bar of Texas 26th Annual
Advanced Family Law Course, August 9-12, 2010, San
Antonio, Texas
CPA’s & Lawyers – A Love Affair That Can Be
Taxing, San Antonio CPA Society, September 2,
2010, San Antonio, Texas
Top Technologies, Family Law Section, May 17,
2011, San Antonio, Texas
Attorney’s Fees (Getting Paid for What You Do), 37th
Annual Advanced Family Law Course, July 31, 2011,
San Antonio, Texas
School!, San Antonio Bar Association Family Law
Section Seminar, March 4, 2005, San Antonio, TX
Make More Money - Play More Golf! Increasing Billing
Efficiency & Client Satisfaction!, Corpus Christi Bar
Association Family Law Section, March 11, 2005,
Corpus Christi, TX
Evidence and Discovery, TX Bar Advanced Family Law
Course, August 8-11, 2005, Dallas, TX
Litigation Alternative – Collaborative Law, Texas
Academy of Family Law Specialists, 20th Annual Trial
Institute; January 12, 2006, Reno, Nevada
Innovative ADR Litigation Options, San Antonio Bar
Association, Family Law Section Seminar, March 3,
Standard of Value-How to Determine the Value of An
Entity, American Academy of Matrimonial Lawyers,
March 8-11, 2006, Cabo San Lucas, Mexico
Proving Attorney’s Fees (Ways and Means), State Bar of
Texas, Ultimate Trial Notebook Family Law 2006,
December 7-8, 2006, New Orleans, Louisiana
The Mysteries of Family Law: Ten Must Know
Procedures, San Antonio Bar Association, Family Law
Section Seminar, March 2, 2007, San Antonio, TX
Attorneys Fees Ways and Means, The 30th Annual
Marriage Dissolution Institute, May 10-11, 2007, El
Paso, TX
The Mysteries of Family Law: 10 Must Know Procedure
& Evidence Tips, Corpus Christi Bar Association, 2007
Family Law Seminar, October 5, 2007, Corpus Christi,
TX
2008 Trial Institute, Texas Academy of Family Law
Specialists, January 18-19, 2008, Santa Fe, New
Mexico
Maximizing Results at Mediation, San Antonio Bar
Association Family Law Section Seminar, February 29,
31st Annual Marriage Dissolution Institute, “Electronic
Evidence Panel”, State Bar of Texas, April 17-18,
2008, Galveston, TX
Co-Course Director, “Extreme Makeover”, San Antonio
Bar Association Family Law Section Seminar, 2006,
2007, 2008
34TH Annual Advanced Family Law Course, Family Law
Boot Camp, “Practice in the Trenches – Show Me the
Money – Your Financial Relationship with Your
Client”, August 10, 2008, San Antonio, TX
34th Annual Advanced Family Law Course, “Do I Look
Like I’m Negotiating?” Creative Mediation Techniques
Panel, August 11, 2008, San Antonio, TX
Moderator, The Divorce Lawyers and Civil District
Judge Discuss Family Violence, San Antonio Bar
Association Family Law Seminar, October 30,
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Moderator, Technology, 37th Annual Advanced Family
Law Course, August 4, 2011, San Antonio, Texas
Top
Technologies,
Alamo Area Paralegals
Association, September 27, 2011, San Antonio, Texas
Today’s Top Thirty Tech Tips, San Antonio Bar
Association, Family Law Section Seminar, February
24, 2012, San Antonio, Texas
Presenting Your Custody Case Using Technology, 38th
Annual Advanced Family Law Course, August 8,
2012, Houston, Texas
2013 Texas Trial Institute, Texas Academy of Family
Law Specialists, February 15, 2013, Colorado
Springs, CO
Successful Billing Practices (and the Mutual Fairness
Doctrine), 2013 Family Law Course 101, Advanced
Family Law
Tools for Successful Mediations – Moderator, Advanced
Family Law Course, August 7, 2013, San Antonio, TX
New Frontiers in Marital Property Law Course Taxes
and Divorce Section – Moderator, October 3, 2013,
State Bar of Texas, Napa Valley, CA
We Forgot What? Essential Protocols for Running a
Successful Law Practice, Advanced Family Law
Drafting 2013 Course, December 5-6, 2013, Dallas,
TX
Judicial Jeopardy – Moderator, 2014 Extreme Family
Law Makeover, February 28, 2014, San Antonio, TX
But He’s Just a Baby! Crafting Possession & Access for
Children 3 and Under – Moderator, 2014 SAFLA,
June 3, 2014, San Antonio, TX
Recovering Attorney’s Fees, Advanced Family Law
Course Boot Camp, August 3, 2014, San Antonio, TX
Timekeeping, Billing, and Collections, Advanced Family
Law Course, August 4-7, 2014, San Antonio, TX
Attorney fees in Divorce Actions, Marriage Dissolution
Institute, April 9-10, 2015, Dallas, TX
Indispensable Billing Tips for All Family Lawyers: From
Basics to Advanced Ideas, State Bar of Texas Annual
Meeting, June 15-19, 2015, Austin, TX
Essential and Efficient Office Protocols for Every
Family Law Office, Advanced Family Law Course,
August 3-6, 2015, San Antonio, TX
LANGUAGES
Spanish
PERSONAL
Married to Karen Maxham Hardy and the proud father of
two children - my son Chase, a Junior at Baylor
University and my daughter Paige, a Senior at Antonian
High School.
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Indispensable Billing Tips for All Family Lawyers: From Basics to Advanced Ideas
TABLE OF CONTENTS
I.
INTRODUCTION ............................................................................................................ 4
Concept of Inventory
II. COLLECTING FROM YOUR CLIENT – THE RULES OF BILLING ..................... 4
A.
Efficient Billing Practice #1 – Hourly Rates, Fee Agreement & Billing Program
.................................................................................................................................. 4
i. Rule No. 1 Assess Your Hourly Rate
ii. Rule No. 2 Review Your Hourly Rate Annually
iii. Rule No. 3 Revise Your Contract
iv. Rule No. 4 Consider an “Evergreen Clause”
v. Rule No. 5 Find a Proper Billing Program
vi. Rule No. 6 Accept Credit Cards
vii. Rule No. 7 Consider Email Verifications to Pay Bills
viii. Rule No. 8 Automatic Charges on a Credit Card
ix. Rule No. 9 Referral Fees to Attorneys
x. Rule No. 10 Co-Counseling Cases
xi. Rule No. 11 Refer Tough Cases and Expect Referrals of Cases
B.
Efficient Billing Practice #2 – Tracking Your Time ............................................ 8
i. Rule No. 12 Track Your Time
ii. Rule No. 13 Bill for EVERYTHING
iii. Rule No. 14 “No Charge” Billing
iv. Rule No. 15 Bill in Quarter Hour (.25) Increments
v. Rule No. 16 Set Your Goal to Bill a 40-Hour Week
vi. Rule No. 17 Bill as a Malpractice Defense
vii. Rule No. 18 Increased Weekend /Holiday Call Fees
viii. Rule No. 19 Value Billing
ix. Rule No. 20 Prepare Your Decree at the Beginning of Your Case
x. Rule No. 21 Return All Calls the Same Day or Apologize the Next Day
xi. Rule No. 22 Bill Throughout the Day as You Conduct Your Work
xii. Rule No. 23 Have Your Legal Assistants Bill for Their Time
C.
Efficient Billing Practice #3 – Flat Fee Billing ...................................................... 10
D.
Efficient Billing Practice #4 – Assess & Educate Clients ..................................... 10
i. Rule No. 24 Read Your Contract “Word-For-Word” With Your Client
ii. Rule No. 25 Initial Appointment Fees
iii. Rule No. 26 Determine a Client’s Ability to Afford You
iv. Rule No. 27 Set the Tone Early
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v. Rule No. 28 Just Say “No”
vi. Rule No. 29 Do Client a Favor- Refer!
vii. Rule No. 30 Treat Pro Bono as Pro Bono
viii. Rule No. 31 Maintain a “Time Buffer”
ix. Rule No. 32 Maintain a Client Phone List
x. Rule No. 33 Monthly Billing
xi. Rule No. 34 Pay Only Fees Out of Your Retainer
xii. Rule No. 35 Be Brave and Survey
E.
Efficient Billing Practice #5 – Dangerous Billing Practices................................. 12
i. Rule No. 36 Bonus Clause
ii. Rule No. 37 Non Refundable Retainers
iii. Rule No. 38 Contingent Fees
iv. Rule No. 39 The Arbitration Clause
F.
Efficient Billing Practice #6 – Receivables – Review, Review, Review! ............. 14
i. Rule No. 40 Stay on Top of Receivables
ii. Rule No. 41 Have a Staff Member Call about Bills that are Due
iii. Rule No. 42 Have a Pre-Mediation Meeting with Clients
iv. Rule No. 43 Schedule a “Closing Meeting” with Client
v. Rule No. 44 The Every Month Discount
vi. Rule No. 45 Old Receivables, December Letter
vii. Rule No. 46 1099 Notice
viii.Rule No. 47 Client Good Will
G.
Efficient Billing Practice #7 – Etiquette & Integrity ............................................ 15
i. Rule No. 48 Be Appropriate
ii. Rule No. 49 Maintain Your Integrity
iii. Rule No. 50 The “Bonus” Clause
iv. Rule No. 51 When Someone Else is Paying the Bill
v. Rule No. 52 Take the 7 Steps to Success
vi. Rule No. 53 Play More Golf!
III. LODESTAR AND ITS IMPACT ON ATTORNEY’S FEES IN FAMILY
LAW CASES IN TEXAS ................................................................................................. 17
A. Prong 1
B. Segregating Fees
C. Prong 2
IV.
CONCLUSION ................................................................................................................ 19
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APPENDICES:
A.
B.
C.
D.
E.
F.
G.
I.
Sample Fee Agreements .......................................................................................... 20
(1) Higdon, Hardy & Zuflacht, L.L.P ................................................................ 20
(2) Law Office of Sam Bashara ........................................................................... 28
(3) Law Office of Mark L. Medley ..................................................................... 30
(4) Vaught Law Firm, P.C. .................................................................................. 36
(5) Koons Fuller, P.C. .......................................................................................... 53
(6) Jenkins & Kamin, LLP .................................................................................. 58
(7) GoransonBain ................................................................................................. 66
(8) Ausley, Algert, Robertson & Flores, L.L.P. ................................................. 75
Client Phone list ....................................................................................................... 79
Survey ....................................................................................................................... 80
Checklist for Client Mediation Preparation Form............................................... 83
Mediation Letter to Client ...................................................................................... 85
Letter to Client on Closing Documents on Website ............................................. 87
Closing Letter to Client with Bound Book ............................................................ 88
Client Curve of Gratitude....................................................................................... 94
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forty hours per week as attorneys in “inventory” that
we must either use or lose.
Keep in mind the importance of tracking and
accounting for your time.
Getting paid is a very important part of being
an attorney. Often times, your legal representation
will be more satisfying to your client if you can create
a way for the other side to pay your attorney’s fees.
However, ultimately you still have to be able to
collect your fees from your client.
I. INTRODUCTION
Discussing billing and collection practices
always seems to be taboo. We all enjoy talking about
our cases and talking about the law but we seem to
avoid the issue that is most important to our families –
our ability to make money. The reason for this
hesitance never ceases to amaze me.
Law school did not offer what arguably is one
of our most important topics- how to successfully bill
our clients!
When I first became an attorney, I learned that
it generally takes three things to be successful in the
practice of law.
First, you obviously have to have a
knowledge of the law.
Second, you have to have the ability to attract
clients to your practice (and, of course, to service their
needs).
Third, and possibly the most important, you
have to have a business sense of when to take, when
not to take, and how to take a case (also known as the
“business side” of your practice).
I do not know whether you are satisfied with
your billing and collection practices.
I suggest that you consider a complete billing
makeover of your practice. Take a hard look at every
component of your “business side” and consider
totally rewriting or changing those things that need to
be revised to make you a more successful lawyer.
II. COLLECTING FROM YOUR CLIENT
THE RULES OF BILLING
-
Over the years, I have talked with many
lawyers about their billing practices and amassed what
I refer to as the “Rules of Billing”. These simple rules
can help you increase your efficiency of billing and
make your clients happier. When clients understand
what they are paying for, they are more readily willing
to pay our fees. If after reading these rules, you have
suggestions to offer, please email them to me and the
list will continue to grow.
A. Efficient Billing Practice #1- Hourly Rates, Fee
Agreements and Your Billing Program
Rule No. 1 Assess (or Reassess) your hourly
rate – When was the last time that you
adjusted your rate? Take a hard look at your hourly
rate and compare it to those practitioners with similar
years of experience. Additionally, factor in the degree
of your specialization in the area of family law in
assessing your rate.
The Concept of “Inventory”
More than once I have heard individuals
comment that one of the benefits of practicing law is
that we are selling our time and do not have the
required “inventory” that many do in their businesses
and, of course, the associated cost of maintaining that
inventory.
At first blush, you may agree with their
assessment. Remember, however, Abraham Lincoln’s
famous quote that “a lawyer’s time and advice are his
stock in trade”.
Unfortunately, as lawyers we do have
“inventory” and our inventory is much more
perishable than that of a florist or produce company.
Our “inventory” is our TIME. It is fleeting
and very, very highly perishable. We have roughly
Rule No. 2 Review your hourly rate annually
– Many firms consider updating their hourly rates
each December. A common practice is to increase
fees $25.00 per hour per year.
This seems to keep up with inflation as well
as with your increased amount of experience. This
hourly rate change should not apply to existing clients
(an ethics issue) but does apply to new client’s cases
(or new cases of old clients).
Ethics Issue - Hourly Rate for Existing Clients
When a fee being charged to an existing client is
different from the agreed fee, the lawyer has the duty
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to advise the client of the change. Tex. Disciplinary R.
Prof’l Conduct 1.04 cmt. 2.
pursue a personal injury claim
against another party.
Clients
should be admonished that if they
have been assaulted, obtained a
venereal disease, or have any other
type of personal injury claim; it
may very well be affected by this
lawsuit. You need to make clear
that, unless a separate fee
agreement is signed with you
pursuing that claim, that you are
not representing the client as
regards to that claim.
d. Child Custody Matters – are you
undertaking a child custody case
on behalf of that client? Most
lawyers charge a different retainer
amount for a “custody” as opposed
to a “non- custody” case. It should
be made very clear that custody
matters are excluded unless you
are agreeing to represent the client
in a custody matter.
e. Appellate Issues – if you are
going to represent a client in a
subsequent appeal of the case, then
let them know that you will
appear. Otherwise, you may want
to consider a specific paragraph
excluding any appellate work.
Rule No. 3 Revise your contract – Start from
scratch. Throw out your old contract and look at the
samples that are attached as exhibits to this paper and
pick those sections of the contracts that best suit your
needs.
Essential provisions of your contract with
your client should include:
Description of work to be done – what is it that you
are doing for the client? Is this a divorce action, a
modification action, a contempt action, etc.? The
actual work that you have agreed to take on for your
client should be described in your fee agreement.
1. Limitation on work to be done – what
are you not doing on behalf of your
client? Specific paragraphs that you
should consider including in your fee
agreement as being “excluded” from
your representation should include:
a.
Evaluation of Property – you
need to ensure that your clients do
not expect you to appraise property
or assets. They should clearly
understand that a real estate
appraiser, CPA, or other expert
may be needed to appraise and
evaluate specific assets of the
estate.
b. Tax Advice – I make very clear to
all of my clients when they sign
their fee agreement that lawyers
made a deal with CPA’s – we
would not do tax if they would not
do divorce (and that it had worked
out pretty well up until now). I
would strongly urge that you
include a provision excluding the
offering of any tax advice unless
you are qualified to offer such
advice.
c. Personal Injury Claims – as we all
know, the filing of a suit for
divorce or other lawsuit may very
well exclude a client’s ability to
2. Retainer Amount – your retainer
should be very clearly outlined in your
fee agreement. You need to ensure that
your client understands exactly how
much they are paying you as an initial
retainer.
3. Hourly
Fee
Charge
by
Attorneys/Support Staff - your hourly
fees as well as that of your support
staff should be clearly outlined. Is
your fee the same “in court” as
opposed to “out of court”? Clients
need to understand exactly how much
they are paying for what services.
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4. Condition that Will Occur for Lawyer
to be “Retained” – your clients need to
understand what conditions are
required for you to be “retained” by
the client. Most agreements required
two conditions, being:
a. The signing of a fee agreement;
and
b. The payment of the retainer
amount.
their case. Conditions for Withdrawal
may include:
a. Failure to timely pay fees;
b. Failure to timely pay evergreen
provision (discussed below); or
c. Ethical considerations.
9. Frequency of Bills Being Mailed –
how often do you send your bills?
Clients need to understand when bills
are sent and when to expect them (on a
regular, monthly basis is highly
recommended).
5. Time Increment Billing – in what time
increments do you charge? Clients
need to understand if you are charging
in .10 or .25 hour increments.
10. Responsibility for Payment – many
clients seem to think that their spouse
will be paying their attorney’s fees
bills. Clients need to understand that
your contract is with the client (not
with the opposing party) and that if
monies are obtained from the opposing
party, those monies will be credited to
their bill.
6. Expenses Reimbursed – you need to be
very clear with your client that any
expenses incurred on their behalf will
be reimbursed to you for the case. It is
suggested that a rough summary of
those expenses should be included in
your contract as well as a description
of those expenses that will require
client approval prior to their being
incurred
(psychologists,
social
workers, accountants, appraisers, etc.).
11. Litigation with Client – unfortunately,
it happens.
You should consider
whether to put a provision in your fee
agreement calling for either the waiver
of a jury and/or for the arbitration of
any disputes between you and your
client. (See “Arbitration” discussion
below)
7. Mediation Fees – I would highly
recommend mediation fees not go
through your trust account. Clients
should be instructed to pay the
mediation fee to the mediator directly
at the time of the mediation. (The
rationale behind this is quite simple –
clients perceive that they are paying
their lawyer those fees if paid through
the lawyers trust account…direct
payment by the client to the mediator
not only precludes that misperception
but also allows the client to understand
a direct commitment to the mediator
for payment of those fees.)
12. Confidentiality
of
Client
Communications – it is important that
clients understand that anything told to
you
is
highly
confidential.
Additionally, your client needs to
understand that confidentiality expands
to your staff.
*Note: You might want to remind your client that
family members and/or third parties presenting during
meeting(s) probably waives attorney/client privilege
8. Conditions for Withdrawal – clients
need to understand that, under certain
conditions, you will withdraw from
Rule No. 4 Consider an “evergreen clause” in
your contract - Let your clients know that their failure
to PROMPTLY maintain their positive balance in
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might consider “ProDoc”, “PC Law”, “Tussman” and
“Billing Tracker”.)
I personally believe that it is absolutely
essential that you learn enough about computers to
enter your own time in the system in order to
maximize your efficiency and capture all of your time
(writing something down on paper and giving it to
someone to input is not only an extremely inefficient
act but also inherently causes a loss of time).
their retainer will force you to withdraw. A sample”
evergreen clause” that you might consider is as
follows:
Client understands and agrees that if the
amount of Client's retainer should fall below
fifty percent (50%) of its original amount at
any time, Client agrees to pay an additional
retainer within ten (10) days in an amount
sufficient to replenish the initial retainer to
fifty percent (50%) of its original amount. Any
unused retainer in excess of the initial retainer
or subsequent replenishment will be refunded
to Client upon conclusion of Client's case.
If Client fails to deposit the additional
retainer, as requested herein, within ten (10)
days after the billing, Attorneys may withdraw
as Client's attorney, cease work, and will have
no further responsibility to work on Client's
case.
Client's failure or inability to pay
Attorneys' retainer fees and/or expenses as
herein provided shall operate as a condition
subsequent and may allow Attorneys to
withdraw from Client's representation. Unless
some other agreement in writing has been
reached between Client and Attorneys, any
balance due Attorneys at the conclusion of
Client's case shall be payable prior to the final
hearing in this matter.
Rule No. 6 Accept credit cards – Credit cards
offer an easy method of payment for your clients.
Retainers appear much more easily when clients are
able to put the charge on their credit card. Clients like
credit cards in every day spending – why should your
attorney’s fees be dissimilar? Take advantage of
credit card usage and allow clients to charge. A
sample Authorization for Automatic Credit Card
Billing form is attached to the Higdon, Hardy &
Zuflacht sample Fee Agreement.
Ethics Issue – Credit Cards
When receiving payment through an approved credit
plan an attorney may receive drafts for past or future
services and expenses, but any money received for
future services and expenses must be kept in a trust
account along with an amount, from the attorney’s
own funds, equal to the discount on the draft. Op. Tex.
Ethics Comm’n No. 481
Rule No. 7 Consider email verifications to
pay bills on credit cards – Why not send clients
reminders by email with a note allowing them to
authorize you to charge your bill on their credit card?
It seems advisable when a client comes to your firm
to retain a credit card number and expiration date on
file as part of your contract to allow the client to
authorize you to charge on their credit card.
I am often asked by lawyers how to “sell” the
evergreen clause (supported by credit card) to my
clients? I explain to my clients that I charge a retainer
of x number of dollars, but that if they agree to the
evergreen clause supported by a credit card, I will
discount the retainer by 25%. (So, for example, if you
normally charge a retainer of $10,000.00 in your
cases, you might consider agreeing to accept a retainer
of $7,500.00 if the client agrees to secure his/her bill
with their credit card for automatic payment at the end
of the month.)
Rule No. 8 Automatic charges on a credit
card – Insist, in conjunction with your evergreen
clause, that new clients authorize automatic charge of
fees accruing on their accounts to their credit card on
a monthly basis. Simply stated, a bill goes out and we
are authorized to charge that amount due on the
client’s credit card. An option to consider!
Rule No. 5 Find a proper billing program –
There are many billing programs that are available for
you to track your time. “Time Slips” is very popular
but there are many other ones out there that you may
be using or that may otherwise suit your needs. (You
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Rule No. 9 Referral Fees to Attorneys – I do
not believe that it is a good idea to pay
referral fees on hourly cases. What I do for attorneys
who refer me cases is to be sure to
refer cases back to them. I would strongly urge that if
an attorney refers you a case you keep that lawyer on
your list of people you “owe” a referral and refer them
cases that you believe they are competent to handle.
B. Efficient Billing Practice #2 - Tracking Your
Time
Rule No. 12 Track your time (all of it) –
Remember, your time is your “inventory” (or your
stock in trade). Any amount of your time that is not
tracked is lost, so track all of it and track it carefully.
Rule No. 13 Bill for EVERYTHING – You
should bill for every “iota” of work that you do for
your clients. (Even if you decide to “no-charge” your
time, your clients will appreciate you even more
knowing ALL the work that you are doing on their
files, especially if they know that you did not charge
them for it). Treat your bill as the “diary” of your
case. I regularly explain to clients that they will see
everything that I do on their case and if I dream about
their case, they will see it on their bill. A quick
explanation to your client that short items (and
dreams) will be “no charged” will put them at ease but
help them to better understand the process.
While we have to be worried about putting in
too much detail (as a contract may fall in the hands of
the opposing side), be sure to provide enough detail
that your client understands what you have done on
their case.
Compare a time entry of “Telephone
conference with client” with “Saturday telephone
conference with client regarding Christmas visitation
issues and problems with those issues”. Which entry
better explains what you did for the client? Which
entry offers the client a more complete understanding
of what you have done for them? Which entry reminds
the client that you worked on a weekend for them?
Ethics Issue - Referral Fees
Rule 1.04 of the Texas Disciplinary Rules for
Professional Conduct sets out the requirements for a
division of fees between lawyers who are not in the
same firm. The Rule requires that 1) the division is in
proportion to the professional services performed by
each lawyer or the division is made between lawyers
who assume joint responsibility for the representation,
2) the client consents in writing to the terms of the fee
arrangement, and 3) the fee is not unconscionable.
Therefore, “a referring lawyer’s duties cannot end
with the referral.”Op. Tex. Ethics Comm’n No. 568
(2006).
Rule No. 10 Co-counseling cases – If you
have a tough case that you should not stay in, consider
retaining a more experienced attorney to assist you as
your “co-counsel” in the case, especially if you have a
good relationship with the client.
Rule No. 11 Refer tough cases and expect
referrals of cases in return – If you have a case that
you know that you should not be a part of (and trust
me, I have been there), consider referring it to an
attorney who is best able to help your client. Do so
early in your case and check your ego to make sure
that you are not biting off more than you can handle.
By the same token, you should certainly expect a
referral of a case from the attorney you send the case
to.
Rule No. 14
“No Charge” Billing –
Remember to include in your billing even those items
that you do not charge for. A quick phone call to a
client, or opposing attorney, some quick action on
their file, a short letter to the other attorney should be
reflected with a “No Charge” billing entry. This not
only reminds the client that you did the work but
emphasizes and reminds them that they were not
charged for the work done.
Ethics Issue – Incompetence
A lawyer shall not continue or begin representation of
a case that the lawyer knows or should know he or she
is incompetent to handle unless 1) a competent
attorney is involved in the matter or 2) the
representation is necessary because of an emergency.
Tex. Disciplinary R. Prof’l Conduct 1.01(a).
Rule No. 15 Bill in quarter hour (.25)
increments – Quarter hour incremental billing is the
easiest type of billing that you can find.
8
charge for an original petition for divorce, consider
billing a set amount for your time and planning on
including your revisions and time spent on revisions
and that original set amount of time.
Clients understand the concept of “rounding
up” or “rounding down” to quarter hour increments
and there is not much work that you can do in a file
that does not fit into this billing concept. If you do
something that takes three to four minutes, I still
suggest that you still “quarter” hour bill it but “nocharge” that time billing entry.
Rule No. 20 Prepare your decree at the
beginning of your case – It offers a “blue print” for
your client as to where you are going to go with their
case and offers the client an opportunity to start
putting together the important account numbers and
legal descriptions necessary to complete their decree.
It is a good idea to ask your client about chances of
reconciliation and for their permission to prepare the
decree. Explain that it needs to be done anyway and
you might as well get started as it will take time to fill
in a lot of necessary information (VIN numbers, legal
descriptions, etc.).
Rule No. 16 Set your goal to bill a 40-hour
week – We work a forty-hour plus week. We should
aim to identify a forty-hour work product. Granted,
this time may include “no-charge” hours but it still
gives us a weekly goal.
Check your billing progress throughout the
week (or even the day) to ensure that you are
capturing all of your time and trying to keep to your
daily goals.
Rule No. 21 Return all calls the same day or
apologize the next day - This is a good, important
client practice. Remember, you can steadily bill for
your time on the phone and clients are extremely
satisfied if you promptly return their phone calls.
Rule No. 17 Bill as a Malpractice Defense –
Remember that your bill is your case “diary”. If there
are problems in your case, your billing instrument can
be used against you to reflect work you did or work
you failed to do. I am familiar with a case involving
an attorney (a good one) who was sued for
malpractice with the allegation being that he had not
properly prepared for trial. He had, of course,
prepared for trial but his bill did not reflect a charge
for the trial preparation.
His client claimed
(unsuccessfully) that the bill proved that the attorney
had not spent time preparing the case for trial.
Ethics Issue – Most Rules of Professional Conduct do
not say anything about timeliness in returning phone
calls; however, every lawyer owes every case a duty
of diligence. To their clients, that diligence is to be
consistent with the client’s interests, so it is important
to return calls promptly. The most common grievance
against lawyers is a failure to keep the client
adequately informed about the case, including not
returning phone calls in a timely manner. Joal
Cannon Sheridan, “What Would Atticus Do?”: Top
Ten Ethical Mistakes Family Lawyers Make, in 7 State
Bar of Texas, 34th Annual Marriage Dissolution Inst.
(2011). Rule 1.03 states that a lawyer shall keep a
client reasonably informed about the status of a
matter and promptly comply with reasonable requests
for information. Tex. Disciplinary R. Prof’l Conduct
1.03.
Rule No. 18
Increased Weekend/Holiday
Call Fees – Consider including in your fee agreement
a premium hourly charge for clients who call you on
weekends/holidays. Remember that this does not
obligate you to accept the call but certainly rewards
you for out of office unusual work and reminds the
client that a weekend or holiday is not a “regular
time” to be calling clients calling their lawyer.
Side Note – I appreciate the lawyer who
offered the tip of “a weekend bonus”. I would greatly
appreciate your emailing me of your billing tips as
many of these tips originate from lawyers emails.
Rule No. 22 Bill throughout the day as you
conduct your work – It is much, much easier to type in
a time slip as you are talking on the phone as opposed
to trying to remember your work later on in the day.
Get in the habit of creating a time slip while you are
Rule No. 19 Value billing – Consider “value
billing” for your services. For example, when you
9
on the phone with a client or while you are doing the
billable work.
D. Efficient Billing Practice #4 – Assess and
Educate Clients
Rule No. 23 Have your legal assistants bill
for their time - Outside of basic typing, a legal
assistant should certainly bill for his/her time. They,
too, can bill in quarter hour increments and should be
billing for other than basic work. Examples of legal
assistant billings can include: telephone conference
with a client; preparation of response to discovery,
cover letters to clients/opposing attorneys, inventory
and appraisement, draft of final decree just to name a
few.
Rule No. 24 Read your contract “word for
word” with your client - Ensure that they understand
what is expected of them as part of the fee
arrangement. Read each section to them and explain
in your own words what the section means, especially
as regards to the importance of their paying their fees
on a monthly basis. Offer to let them take it home for
review.
Ethics Issue – The lawyer client relationship begins
when the client reasonably believes that the lawyer
has undertaken to provide legal services to the client.
C. Efficient Billing Practice # 3 - Flat Fee Billing
Flat fees are generally utilized by lawyers to
do a set amount of work on a case, such as for real
estate transaction work and for criminal law cases.
Should we consider them for family law cases?
At first glance, they are not appropriate as
most of us have experienced the “easy case” that
creates an expectation by a client of a refund while the
“more difficult case” creates an expectation by a client
that you will stick to your flat fee.
Consider certain transactional cases wherein
flat fees may be appropriate. If you are brave enough
to prepare Pre-Nuptial Agreements perhaps a flat fee
would work for your situation.
Consider the flat fee when quoting a fee for a
pre-marital or a similar transactional service to clients.
Rule No. 25 Initial Appointment Fees –
There are pros and cons to initial appointment fees.
The pros of fees is that you are charging for
your time and avoiding be conflicted out of cases.
The cons of initial appointment fees is that
you might avoid seeing the client who might be shy of
paying an initial appointment fee yet be willing to pay
a substantial retainer if they hire you. Some amount
should be charged for an initial appointment fee, if not
your full hourly fee. (At the very least, a nominal
amount of $100.00 should be charged so that they feel
that they are getting the value of your time.)
I have received many comments from lawyers
on initial consultation fees over the years. Many have
expressed concern that clients “lawyer shop” by
visiting several lawyers, effectively disqualifying the
attorney (and the entire firm) from representing the
opposing party.
My personal experience with an initial office
conference is that clients know that they “get what
they pay for”.
Clients who won’t or can’t afford an initial
conference will not be able to afford you anyway.
The payment of the first conference fee gets the client
used to paying your fees and gives them an
understanding that your time truly is your “stock and
trade”.
I am committed to charging for my initial
conferences (with a rare exception perhaps of a good
client referral, in which case I tell the client that they
are getting a free consultation due to the person
referring them).
Ethics Issue – Flat Fee Billing
The comments to Rule 1.04 indicate that common
billing methods include flat fee arrangements. A flat
fee arrangement is still subject to the standard of
reasonableness; however, there are no inherent
ethical issues associated with this practice. Tex.
Disciplinary R. Prof’l Conduct 1.04 cmt 3.
Ethics Issue – Commingling Funds
When lawyers charge flat fees, it is important that the
employment contract is clear as to who will own the
money after the client submits payment and whether
the fee is refundable. All funds that are owned by the
client and/or refundable should be placed in a 9-102
Trust Account. Tex.Comm. on Prof’l Ethics, Op.
391(1978).
10
Option #1 – Refuse or refer the case. The
easiest and perhaps best financial option for the
attorney is to refuse or refer the case.
Rule No. 26 Determine a client’s ability to
afford you - If a potential client cannot afford your
fees, accept the fact that this potential client should
become someone else’s client (and not yours).
Option #2 – Handle the case knowing you are
probably handling it as a pro bono case and limit your
expectations as to collecting a fee. The key to this
type of representation is to have the understanding
that you may, or probably, will not be paid. Working
for free is not a bad thing, when done in moderation.
But treating a pro bono as a pro bono is important.
Don’t plan on suing the client who obviously does not
have the money to pay you.
Rule No. 27 Set the tone early – Setting the
tone with your client early in your case can make it
easier for you to collect your fees during the case.
Remind the client that you can “focus on their case or
focus on your bill – what would they prefer?”
Rule No. 28 Just Say “No” - Don’t fear
allowing a client to walk away from your office
without hiring you. If they are meant to come back
and hire you, they will do so. Otherwise, you will
probably be much happier about their case if someone
else is representing them.
Ethics Issue – In general, there is no duty for a
lawyer to take any particular case.
Rule No. 32 Maintain a client phone list –
Keeping a client phone list will serve several
purposes. First, it will offer you a readily available
source for your client’s and opposing attorney’s phone
numbers and other basic information. Second, it will
give you an opportunity to have a master list to review
on a regular basis. (I try to go through my phone list
with my legal assistant weekly to make sure that we
are on top of our cases.) Third, it will offer you a
vehicle for review at the end of the day to ensure that
you have properly billed for the cases that you have
worked on during the day and would otherwise forget
to bill on. (See Appendix “B” for a sample phone list.)
Rule No. 29 Do client a favor – refer! - If a
client cannot afford you, help them out by finding
them an attorney that they can afford. Maintain a
referral network of competent lawyers who charge
less than you do to whom you can refer those clients.
Rule No. 30 Treat Pro Bono as Pro Bono Don’t have unrealistic expectations. If a client tells
you that he/she can pay a total of $500 or $1,000,
understand that you will probably be handling a great
deal of their case on a “pro bono” (or free) basis. In
such cases, do not be upset if a client does not pay
your large receivable at the end of their case.
Rule No. 33 Monthly billing - Send out bills
to clients every month, no matter what, without fail.
Avoid having clients receive a statement for 2 or 3 or
more months of work at a time.
Clients are entitled to ask you to “slow down”
and your failure to send that statement on a regular
basis does not afford them that opportunity.
Rule No. 31 Maintain a "time buffer" – One
of the most important things that lawyers fail to do is
to maintain a “time buffer”. If you take too many Pro
Bono or “low fee cases”, you will not be available
when a “good fee” case comes along. Don’t waste
your “inventory” (your time) with non-paid cases
when you should maintain that inventory for
availability for higher paying cases.
How often do we have clients who attempt to
hire us who have no funds available to pay us?
Deciding what to do is not only a difficult personal
decision (we often want to help), but a business
decision too (we want to pay our staff and bills).
Considering the options in such a
circumstance can be helpful:
Rule No. 34 Pay only fees out of your
retainer - Expert, accounting, psychological
evaluation, and mediation fees should always be paid
by the client separately from your retainer. Don’t
confuse things. Tell your client that they need to
bring a check for their portion of the mediation fee to
the mediation. Alternatively, tell them that they need
to advance the fee to your trust account prior to the
mediation so that you can write the check.
11
The lawyer ended up settling the case for a
total of $550,000.00, of which $270,000.00 belonged
to the client. The lawyer contacted the client about
the balance that was due and inquired as to his
“bonus”.
The lawyer, by email, suggested a $5,000.00
bonus. The lawyer complained that the low bonus in
light of the client’s extolling how great his services
were in the case was insufficient.
The lawyer suggested instead, a $20,000.00
bonus and later, a $30,000.00. The lawyer said “You
should not attempt to barter with me. I have earned
it.” Somewhere along the line, the lawyer accused the
client of being “a fraudster”. He continued “you are
so full of bull, I now believe the bonus should be
$50,000.00. I am very disappointed in you. We
obviously have a ourselves a dispute.”
The lawyer then released the settlement funds
to his other clients but held on to the “bonus” clients
funds and said he would keep them all “until we
resolve our dispute”.
The lawyer and the client ended up in
litigation which resulted in the lawyer receiving
$51,000.00 and the client ultimately receiving the
remainder of the settlement funds.
Then came the grievance. The bar alleged
that the lawyer violated the Safekeeping Property Rule
(1.14) which regulates money disputes between the
attorneys and their clients. The rule states that “if a
dispute arises concerning their respective interests, the
portion in dispute shall be kept separated by the
lawyer until the dispute is resolved, the undisputed
portion shall be distributed appropriately.”
Although the jury ultimately ruled in the
lawyers favor by finding the lawyer had not violated
Rule 1.14, the State Bar moved for a judgment
notwithstanding the verdict (JNOV), arguing that the
evidence presented to the jury raised no genuine issue
of material fact as to whether the lawyer violated the
rule.
Specifically, the Bar argued that while the
lawyer could have held on to the disputed $50,000.00,
he should have released the undisputed amount of the
clients settlement to him the day that his other clients
received their monies.
The end result – the lawyers license was
suspended for three years, two active and one
suspended.
Note that my real reason for wanting an
expert at, mediation, and other fees to be paid
separately is my concern the clients will lump the fees
paid through my trust account with their total
attorneys fees bill. Different state laws provide
differently as to privilege issues if these are paid by
the attorney.
Ethics Issue – Separation of Funds
Client property and funds must be kept separate from
lawyer property and funds. More lawyers are
sanctioned and disbarred for not getting this right and
commingling funds than for any other ethical
violation.
Rule No. 35 Be Brave and Survey – Survey
your clients. Surveying your clients by the inclusion
of a survey with their bills and a self-addressed,
stamped envelope can offer you the opportunity to
learn how you and your staff are doing while offering
your client an opportunity to vent as to any problems
they are having with your services. You will be
shocked and amazed at the positive feedback you will
receive when you survey your clients and surprised at
little things that bother your clients that, although
easily correctable, you did not know existed. A
sample survey is attached to this paper as Appendix
“C” and is also available at our law firm’s secondary
website at: www.TexasFamilyLawInfo.com.
E. Efficient Billing Practice #5 - Dangerous Billing
Practices
Rule No. 36 The Bonus Clause – Cautiously
consider, for certain cases, including the following
“bonus clause” in your fee agreement (but be careful!)
I always worry about situations that end up on
the front page of newspapers. Be mindful of the
Smitherman Case ((Smitherman v. Commission for
Lawyer Discipline, S.W.3d (2015))
Smitherman was a non-family law case. A
lawyer represented three clients in an energy business
dispute on an hourly basis. During the course of the
litigation, one client offered to pay the lawyer a
“bonus” on top of his hourly fee upon resolution of his
case.
The offer came up apparently during a
discussion about the clients unpaid invoices.
12
The State Bar of Texas Commission for
Lawyer Discipline asserted the lawyer had worked 11
hours on the case while the lawyer contended he
worked 28.5 hours on the case. The client filed a
complaint with the State Bar and the Commission of
course, initiated suit.
The Commission alleged that, among other
things, the lawyer charged and collected an
“unconscionable fee”.
The Court ordered the lawyer to repay
$15,000.00 and imposed a 24 month fully probated
suspension finding that:
Bonus clauses should be considered by
practitioners but should be dealt with extremely
cautiously.
Rule 37 Non Refundable Retainers – are a
dangerous area potentially fraught with peril for
practitioners. (Cluck v. Commission for Lawyers
Discipline, 214 S.W.3d736 (2007), a client apparently
approached an attorney to represent her in a divorce
case. The lawyer agreed to represent the client in a
divorce who signed a contract for legal services in
which she agreed to pay a $15,000.00 “nonrefundable” retainer. Under the contract, the lawyer
agreed to bill the client at $150.00 per hour, first
against the $15,000.00 “non-refundable” fee and
monthly thereafter.
The contract clearly stated that no part of the
legal fee was refundable should the case be continued
or settled in any other manner.
The client paid the lawyer $15,000.00 in
2001. The lawyer began working on the clients
divorce, including filing a Petition and obtaining
service on the husband. The client asked, seven days
later, the lawyer to “cease action on her divorce”. She
said she wished to attempt to reconcile.
The lawyer suggested that, because her
husband had been served, the client leave the action
“pending” in case she changed her mind. The client
agreed.
One year later, after receiving notice that the
case was set on the Dismissal Docket, the client
contacted the lawyer about resuming work on her
divorce. The attorney requested that the client sign an
amendment to the contract, in which she agreed to pay
an additional “$5,000.00 non-refundable fee” at an
increased hourly rate of $200.00.
The client signed the amendment and paid the
lawyer the $5,000.00 and the lawyer resumed work on
the case.
One month after resumption, the client
terminated the lawyer, alleging lack of responsiveness
to her phone calls as the reason.
The client requested the file which she picked
up two weeks later. Two months later, the client
wrote the lawyer a letter asking for a detailed
accounting and a refund of the $20,000.00 less
reasonable attorney’s fees and expenses.
1.
If a true retainer is not excessive, it
would be deemed earned at the time it is received and
may be deposited in the attorneys account;
2.
In contrast, money that constitutes the
“pre-payment” of a fee belongs to the client until
services are rendered and must be held in the trust
account;
3.
The $15,000.00 paid to the lawyer by
the client was a “pre-payment” of the fee and not a
retainer;
4.
The contract for legal services did not
state that the $15,000.00 payment compensated the
lawyer for his availability or lost opportunities –
instead it said that the lawyers hourly fees will be
billed against it; and
5.
The Court noted that the $5,000.00
initial payment requested by the lawyer made it clear
that the $15,000.00 that was paid in 2001 did not
constitute a true retainer.
Be cautious if you decide to charge a nonrefundable retainers and, clearly, you need to be sure
to read the Cluck case from cover to cover.
By the way - Thank you for your non-refundable
retainers. I cannot tell you how many clients come to
me who were distraught over having interviewed with
attorneys who charged non-refundable retainers. I
explain to clients that a large part of the rationale
behind the charging of “non-refundable retainers” has
to do with the fact that it makes billing practices much
13
easier. In reality, there are other successful billing
options.
Unfortunately, this issue, at least at the time
of the printing of this article, is in limbo. The matter
of In re Royceton Razor and Williams LLP involves
a common law marriage lottery case. The lawyers
agreed to take the case on a 20% contingent fee
agreement.
The matter ultimately resolved in
mediation and resulted in a malpractice suit being
filed. The enforceability of arbitration agreements
and lawyers fee agreements is now pending before the
Texas Supreme Court.
Ethics Issue – Commingling Funds
A nonrefundable retainer belongs to the attorney
when it is received. Therefore, the nonrefundable
retainer does not have to be placed in a trust account
for the client. However, if the client uses one check to
make a payment that includes the nonrefundable
retainer and a refundable retainer, the entire
payment, including the nonrefundable retainer, must
be deposited in the trust account. After depositing the
entire payment in the trust account, the lawyer may
transfer to a general account the portion that
constitutes the nonrefundable retainer. Tex. Comm. on
Prof’l Ethics, Op. 391, 1978 WL 14284 (1978).
F. Efficient Billing Practice #7 – Receivables Review, Review, Review!
Rule No. 40 Stay on top of receivables – Be
sure to have your staff call your clients EVERY
SINGLE MONTH (my admitted weakness) should
they fail to make due payment on their bills. Enforce
your “evergreen clause” in your contract and let
clients know that they need to pay their fees.
Ethics Issue – Termination of Representation
If the retainer is an advance payment for services,
then the lawyer must abide by Rule 1.15. The Rule
requires that when a lawyer terminates representation
of a client, the lawyer must return advance payments
of the fee that are unearned. Tex. Disciplinary R.
Prof’l Conduct 1.15(d).
Rule No. 41 Have a staff member call about
bills that are due - If you go to a doctor’s office and do
not pay a bill, you receive a call from their staff
reminding you to make a payment. Why should we be
any different?
Rule 38 Contingent Fees – Lawyers should,
again, be very cautious in “contingent fee” agreements
in divorce cases. It is very common for clients to
approach lawyers without any monies to ask that the
lawyers take the case “contingently” on an hourly
basis. Lawyers want to help clients out and consider
taking the case on a contingent fee basis of a
percentage of the amount recovered.
Rule No. 42 Have a Pre-mediation meeting
with clients – When you ask clients to pay the
mediator, ask them to pay their retainer up to the
“evergreen amount” prior to mediation. They won’t
be surprised by this but, more likely, will expect to be
asked to follow their contract. (If you are not sure
what to discuss, other than fees, at pre-mediation
meetings, feel free to follow the list provided as
Appendix “D”). Additionally, if you do not have a
good letter to explain the mediation process to clients,
feel free to follow the mediation letter attached hereto
as Appendix “E”.
If you decide to take a case on a contingent fee basis,
have the client review the fee agreement with an
attorney of their choice.
Rule 39 The Arbitration Clauses - Is an
arbitration clause permitted in fee agreements? It has
been thought that an arbitration clause provision in an
engagement agreement with a client that covers
disputes relating to fees or malpractice was valid so
long as notice was given regarding certain
advantages/disadvantages of arbitration, including
waiver of trial by jury and loss of appellate review.
Additionally, to be enforceable, the arbitration
provision must not limit the lawyers liability.
Rule No. 43 Schedule a “Closing Meeting”
with client to review their closing packets and their
bills - As your client’s case approaches its end,
remind clients that you will conclude their case with a
FREE closing meeting. It makes sense to make a big
deal to clients about the fact that you are not going to
charge them for the meeting but that you want to
14
Birthdays offer another opportunity to for you to diary
their birthday and send a quick letter wishing them
well. A happy client will always be quicker to pay
their bill on a timely basis.
ensure that all closing documents have been prepared.
Sit down with your clients at the end of their case and
present them with a copy of their closing documents
and a copy of their bill. Mention prior to the meeting
that you will also be discussing the closing of their
files and their final bills. (Think about asking that
they bring their checkbooks or, if you owe them
money from their retainer, have that check ready to
deliver to them.) Clients will not be shocked but will
expect this from the meeting. (See Appendix “F” for a
sample letter to clients with closing documents on the
website and Appendix “G” for a sample closing letter
to clients to be included in the bound book.)
G. Efficient Billing Practice #6 – Etiquette and
Integrity
Rule No. 48 Be appropriate – Clients are
generally impressed with what you say as well as
things you do. When you meet a client’s spouse and
lawyer for the first time, introduce yourself. Be
professional. Do not disparage your opposing counsel.
Far from disparagement, you have every reason to
compliment the opposing attorney and their skills.
Remember that your client will be more impressed
with your professionalism and ability and,
accordingly, more willing to pay your fees if they are
impressed with you. (Note the alternative comment
from your client that “anyone could have done what
you did – even you acknowledged early in the case
that this lawyer was not good”.)
Rule No. 44 The Every Month Discount Another legal policy being used by some attorneys
(again not necessarily recommended) is to offer
clients a 20% discount every month provided the
client’s bill is paid by the end of the month. Lawyers
report high collection rates (and low receivables). It
should be noted that, effectively, the lawyer’s billing
rate is 20% lower than the amount initially agreed to,
provided the client timely pays their bill.
Rule No. 49 Maintain your Integrity – We
can reflect on the importance of maintaining your
integrity as to the importance of your reputation
among fellow members of the Bar and Judges. But
remember just how important it is as to clients.
Clients do not need a reason to dislike attorneys. For
many, your representation will be the first exposure
that clients have had to an attorney. Not only should
you be careful not to disparage our profession, but
remember that clients who lose respect for you will
justify not paying your bill. Do not allow clients to lie
or misstate the truth. Be honest and compel your
clients to be honest. Maintaining your integrity makes
more than ethical sense, it makes business sense!
Rule No. 45 Old Receivables, December
Letter - A great new tip that I received from a lawyer
is to generate a letter on December 1st for some of
your “older receivables”. Offer to discount a client’s
bill by 10% to 35% if they have paid their receivable
by the end of the year.
Rule No. 46
1099 Notice – **(Not
Necessarily Recommended)**
I understand that some attorneys are now
sending IRS Form 1099’s to clients whose receivables
they are writing off (or are threatening to do so). This
is not a method that I use nor that I recommend, I
simply report it as something that is being done.
Please talk with your CPA before considering doing
so.
Rule No. 50 The “Bonus” Clause – Consider, for
certain cases, including the following “Bonus” clause
in your fee agreement.
Rule No. 47 Client Good Will – Keep your
client happy during their case. Let them know that
you are thinking about them and their case while their
case is pending. If a client mentions that they have an
interest in wine and you come across an article on fine
wines, send it to the client with a short note.
“Client may be charged an additional sum
to be determined by the results obtained, the
total amount involved, the nature and
complexity of the litigation and the
responsibilities assumed. It is impossible to
determine in advance the amount that will be
15
needed to complete client’s case. In the event
of dismissal of client’s matter, client will still be
obligated for fees unpaid.”
There are few times in our career that we
can justify using such clauses. Think about the
case that you settle early due to magnificent
work (on your part) or that you recover a real
“win” for your clients that are not properly
rewarded by your hourly fee. (I might note,
that early in my career, I would see these
“Bonus” Clauses in fee agreements of lawyers.
I never had the nerve to ask a client for a
bonus, but as I see the occasional spectacular
result and happy client, I certainly intend to
change my approach in the future. I will be
happy to report the results of this endeavor.)
a. Day client is served;
b. Client meets with divorce
attorney;
c. Next meeting;
d. Deposition;
e. Negotiations;
f. Settlement Conference;
g. Settlement Meeting;
h. Trial;
i. After Trial;
j. Decree;
k. Later;
l. One Month Later;
m. Two Months Later;
n. Three Months Later;
o. Four Months Later; and
p. Five Months Later
Rule No. 51 When Someone Else is Paying
the Bill – If someone other than the client is paying
the bill, the clients consent is required. Be sure that
your fee agreement recites that the “client” consents
that they understand that a third party is paying the
bill..
Rule No. 52 Take the 7 steps to Success! Start with a 7 step process to proper billing
practices:
Step #1 – Consider rewriting your Fee
agreement.
Step # 2 – Analyze your computers and
consider an upgrade.
Step # 3 – Buy a good billing program.
Step # 4 – Use the program hourly and keep it
open on your desktop.
Step # 5 – Get in the habit of reviewing your
time and billing totals daily.
Step # 6 – Set a procedure for sending your
bills monthly.
Step # 7 – Review your receivables monthly
and remind your clients to pay you.
**Bonus Tips from Guru James T. McLaren on
Setting and Collecting Fees**
1. “I would rather not do the work and not get paid
than do the work and not get paid (and defend a
grievance).”
2. Remember the “Client Curve of Gratitude”.
Collect your fees before or at the time the case is
concluded. (See Appendix “H”)
3. Cash is king, and the gold should always flow
through your hands.
4. You have no one to blame but yourself if you have
let a client go way ahead of you on your fees.
5. Do not apologize for the amount of your fees – the
client came to you because they believe you are the
best in the business – do not give the client a reason to
doubt their judgment.
6. Do not negotiate with the client over your retainer
or the hourly rates.
7. Buy lunch. (Clients resent your working through
lunch and allowing the lunch bill to find its way to
their bill.)
8. Call your clients with good and bad news.
9. Remember the Curve!
**Additional Bonus/Billing/Client Care Ideas**
1. “My lawyer can beat up your lawyer” is not a
marketing strategy. “My lawyer will call me back
before yours will” is.
2. The value of a free consultation is what you
charge for it.
3. Nothing is free that costs your time.
4. If your clients stop paying you, don’t ignore them.
Fire them.
16
26. Your clients don’t pay you to feel sorry for them,
they pay you so they’ll no longer have to feel sorry for
themselves.
27. Making a healthy profit from satisfied customers
is the purpose of your business, not something to
apologize for.
28. McDonald’s had made billions asking customers,
“Would you like fries with that?” What’s your
“French fry” question?
29. A client’s definition of a “great lawyer” is
probably far different from yours. Understand their
expectations, and then exceed them.
30. Your clients don’t think you aren’t calling
because everything is fine, they think you’re not
calling because everything isn’t.
31. When meeting a potential client, don’t sell your
competence, sell your compassion. You must care
about them before they’ll care about you.
32. Clip a picture of your kids to the top of your stack
of bills so you remember why you do what you do
(and charge for it).
33. If your clients can go months without hearing
from you, they can go longer without recommending
you.
34. Thinking like a lawyer doesn’t pay the bills.
Thinking like a business person does.
35. Just because you’re not paying your clients for
their time, don’t believe it isn’t as valuable as yours.
36. Never network to meet people, network to help
people.
37. When you meet a client for the first time, make
certain they don’t hear you complain.
About
anything.
38. People don’t tell lawyer jokes because they think
they’re funny, they tell them because they think
they’re true. Prove them wrong.
5. Your client will always know their business better
than you do. Make sure you seek their advice before
giving yours.
6. Being good at understanding makes you a good
lawyer. Being good at arguing makes you an ass.
7. There are 1,440 minutes in each day. How many
did you make matter? How many did you bill for?
Were they the same minutes?
8. Ask clients, “If I could solve just one problem for
you, what would it be?”
9. The confused mind always says no.
10. Your “keep great clients happy” budget should
exceed your “try to find new clients” budget by at
least three to one.
11. You can’t sell bad service to the same client
twice.
12. If you don’t agree on fees at the beginning of a
case, you’ll be arguing about them at the end of it.
13. How would your 10 best clients design your firm?
Why haven’t you asked them?
14. If you keep 99 out of 100 clients happy, your
batting average is .990. To the client you let down,
however, your batting zero.
15. If there are three or more things that don’t seem
quite right when interviewing a prospective client,
take a pass!
16. Innovation begins with conversation. Engage with
your clients so they’ll engage you.
17. The single piece of “technology” all lawyers
should learn to use better is their keyboard.
18. Firing bad clients doesn’t put them out of their
misery, but it puts them out of yours.
19. What’s the last thing you’ve done to improve your
customers’ experience with you?
20. The more you resemble your competition, the less
likely their customers will become yours.
21. Never forget that the least important file on your
desk is, to at least one client, the most important file
on your desk.
22. Resist the urge to say yes to everything. Say no to
something each day, just to stay in practice.
23. It is unimportant how great you are at what you do
if you don’t send your bills on time.
24. You can’t expect someone to appreciate your
expertise if you fail to acknowledge theirs.
25. The one “technology” your clients really wish
you’d get better at using is the telephone. Call them
back!
III. LODESTAR AND ITS IMPACT ON
ATTORNEY’S FEES IN FAMILY LAW CASES
IN TEXAS
Throughout your billing process, you need to
remember that if you are entitled to make a claim for
attorney’s fees from the opposing side, you absolutely
must be aware of the Lodestar Method and its impact
on attorney’s fees in Texas. The Supreme Court, in the
case of El , Apple I, Ltd v. Olivas, decided to follow
the two pronged approach to determine attorney’s fees
17
Overstaffing of cases should be avoided as
courts may discount attorney’s fees for work that
seems repetitive or unnecessary.
Billing judgment has been defined as “the
usual practice of law firms in writing off
unproductive, excessive, or redundant hours” (See
Walker v. U.S. Dep’t of Hous. & Urban Dev., 99
F.3d 761, 769 (5th Cir. 1996)). The Texas
Supreme Court has recognized that billing
judgment “is an important component in a fee
setting” (See El Apple I, Ltd. v. Olivas, 370
S.W.3d 757, 762 (Tex. 2012) (quoting Hensley v
Eckerhart, 461 U.S. 424, 434 (1983))). It is
critical that attorneys preserve evidence of their
billing judgment as testimony alone is inadequate
and can result in the court further reducing the fee.
When determining a reasonable hourly rate,
courts will typically examine hourly rates of
“similarly trained and experienced lawyers in the
relevant legal community” (See Joseph F.
Cleveland, Jr., Alex Harrell, Is Texas Becoming
the Lodestar State? A Practitioner's Guide to
Recovering Attorneys' Fees Under the Lodestar
Method, 75 TEX. B.J. 700, 702 (2012)). This
evidence can be accumulated via affidavits from
other attorneys or The State Bar of Texas 2009
Hourly Fact Sheet which provides information
based on a variety of factors regarding median
hourly rates.
using objective evidence known as the “Lodestar
Method.”
A. Prong 1 –
The party seeking attorney’s fees has the
burden of proof for the first prong of the lodestar
method. The proof the Texas Supreme Court
recommends are documentation that supports:
“(1) the nature of the work, (2) who performed the
services and their rate, (3) approximately when
the services were performed, and (4) the number
of hours worked ” (See El Apple I, Ltd. v. Olivas,
370 S.W.3d 763, (Tex. 2012)). Attorneys are “not
required to write a book,” (See Wright v. BlytheNelson, 2004 U.S. Dist. Lexis 25181, *16—17, (
N.D. Tex. 2004)), however providing too little
information is risky because “without proper
documentation, the court has the discretion to
reduce the award to a reasonable amount” (See No
Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262
F.3d 496, 500, (5th Cir. 2001)). Application of the
lodestar method is easier and more equitable when
the requesting party itemizes the time spent on
specific tasks in the case rather than just entering
the total time spent on the case.
A paralegal’s time may be compensated as
well, but counsel is required to submit: “(1) [T]he
qualifications of the legal assistant to perform
substantive legal work; (2) that the legal assistant
performed substantive legal work under the
direction and supervision of an attorney; (3) the
nature of the legal work performed; (4) the legal
assistant's hourly rate; and (5) the number of hours
expended by the legal assistant” (See All Seasons
Window and Door Mfg., Inc. v. Red Dot Corp.,
181 S.W.3d 490, 504 (Tex.App.—Texarkana
2005, no pet.) (quoting Multi–Moto Corp. v. ITT
Commercial Fin. Corp., 806 S.W.2d 560, 570
(Tex.App.—Dallas 1990, writ denied)). The fee
awarded to the paralegal is limited “to the extent
that the work has ‘traditionally been done by any
attorney’” (See All Seasons Window and Door
Mfg., Inc. v. Red Dot Corp., 181 S.W.3d 490, 504
(Tex.App.—Texarkana 2005, no pet.) (Quoting
Clary Corp. v. Smith, 949 S.W.2d 452, 469
Tex.App. — Fort Worth 1997, writ denied)).
B. Segregating Fees –
The Texas Supreme Court requires that “a
prevailing party must segregate recoverable from
unrecoverable attorney’s fees in all cases” (See
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007)
(per curiam)). This segregation can be done by
“proving time spent on a non-recoverable claim, or
subtracting a percentage of the time from the total
time expanded on the case to account for the time
spent on the unrecoverable claim” (See Joseph F.
Cleveland, Jr., Alex Harrell, Is Texas Becoming the
Lodestar State? A Practitioner's Guide to Recovering
Attorneys' Fees Under the Lodestar Method, 75 TEX.
B.J. 700, 701 (2012)). If recoverable and
unrecoverable claims become overly entangled no
segregation is required (See Tony Gullo Motors I, L.P.
v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006)).
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C. Prong 2 –
The second prong of the lodestar approach
requires the court to analyze specific factors to
determine whether an adjustment of the lodestar is
necessary. An adjustment is necessary when “the
lodestar does not reflect a reasonable fee [and] a
multiplier may be applied” (See El Apple I, Ltd. v.
Olivas, 370 S.W.3d 757, 759 (Tex. 2012)). A nonexhaustive list of these factors is found in the Texas
Disciplinary Rules of Professional Conduct and
include: “(1) the time and labor required, the novelty
and difficulty of the questions involved, and the skill
requisite to perform the legal service properly; (2) the
likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer; (3) the fee
customarily charged in the locality for similar legal
services; (4) the amount involved and the results
obtained; (5) the time limitations imposed by the
client or by the circumstances; (6) the nature and
length of the professional relationship with the client;
(7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and (8)
whether the fee is fixed or contingent on results
obtained or uncertainty of collection before the legal
services have been rendered” (See Tex. Disc. R. Prof.
Conduct 1.04 (b)). The lodestar method looks to be
the new approach of Texas to determine proper
attorney’s fees. This decision should prove to be an
equitable one as it properly accounts for market rates
for similarly situated attorneys, while also providing
the court the latitude to make the changes it sees fit in
the case of extraordinary circumstances.
IV.
CONCLUSION
Working hard as a lawyer is not enough to be
successful in the practice of law. The “business side”
of our practice must be considered in order to have a
successful practice.
These policies that I have learned from
attorneys have helped me maintain good billing
practices. I hope these ideas will help you in your
practice.
GOOD LUCK AND GOOD BILLING!
Rule No. 53 – The Most Important Rule - ( Play
More Golf! – What this rule means is to withdraw
from a case or do not take a case for which you will
not be paid your fair hourly wage. If you have the
option of involuntarily working for free or going out
and doing something fun, you should take advantage
of the free time and do something that you enjoy
(something that I am finally learning to do).
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APPENDIX “A”
Exhibit “1”
AMPLE FEE AGREEMENTS
55
RETAINER EMPLOYMENT CONTRACT
"Client", whose name is subscribed at the end of this contract hereby employs HIGDON, HARDY &
ZUFLACHT, L.L.P. ("Attorneys") of San Antonio, Texas to represent me in a family law matter and/or suit
of the following referenced matter:
___________________________MY DIVORCE___________________________________
____________________________________________________________________________
For said Attorneys’ services, Client agrees to pay an initial retainer fee as hereinafter set forth with the
total fees for Attorneys’ services calculated by time expended by Attorneys at the following rates:
ATTORNEYS:
RETAINER
AMOUNT
$10,000.00
$ 7,500.00
$ 6,000.00
$ 5,000.00
$ 4,500.00
$ 3,000.00
James N. Higdon
Charles E. Hardy
Harold C. Zuflacht
Amy A. Geistweidt
David T. Emory
Ann K. Watson
CLIENT UNDERSTANDS THAT LEGAL REPRESENTATION WILL NOT COMMENCE UNTIL THE
RETAINER FEE IS PAID IN FULL AND THIS CONTRACT HAS BEEN SIGNED BY THE CLIENT AND
THE ATTORNEY.
It is further agreed that for the services to be rendered by Attorneys, the fees for said services shall be
determined as follows:
ATTORNEYS
James N. Higdon
Charles E. Hardy
Harold C. Zuflacht
Amy A. Geistweidt
David T. Emory
Ann K. Watson
OUT OF COURT
TIME
$500.00 per hr.
$500.00 per hr.
$385.00 per hr.
$350.00 per hr.
$300.00 per hr.
$175.00 per hr.
NON-JURY COURT
APPEARANCE/TRIAL
$4,000.00 per day
$4,000.00 per day
$3,080.00 per day
$2,800.00 per day
$2,400.00 per day
$1,200.00 per day
JURY TRIAL
$6.000.00 per day
$6,000.00 per day
$4,620.00 per day
$4,200.00 per day
$3,600.00 per day
$2,100.00 per day
SUPPORT STAFF
Sr. Paralegal Time
Paralegal Time
Senior Law Clerk
Law Clerk
Non-Legal Staff
$145.00 per hr.
$100.00 per hr.
$150.00 per hr.
$100.00 per hr.
$ 75.00 per hr.
$1,160.00 per day
$ 800.00 per day
$1,200.00 per day
$ 800.00 per day
$ 75.00 per hr.
$1,740.00 per day
$1,200.00 per day
$1,800.00 per day
$1,200.00 per day
$ 75.00 per hr.
Client understands that all time spent on Client’s case is recorded and billed. Some, but not all,
of Attorneys’ services for which charges are made include legal research, drafting of pleadings and
20
documents, office conferences, out-of-office conferences, telephone conferences, investigative work,
review of material received from Client, the opposing party and others, preparation for and appearances
in court, and other tasks necessary to handle the matter in controversy.
If the time spent in Court is less than one-half day, the charge will be for one-half day; if the time
spent in Court is more than one-half day, the charge will be for a full day. Out of court time will be
calculated in increments of one-quarter (.25) hours. THAT IS, THE MINIMUM INCREMENT OF TIME TO
BE CHARGED IS FIFTEEN MINUTES. For example, if a telephone call in regard to Client’s matter
should be made, Client would be charged fifteen minutes of time (.25 hours) even though the actual
telephone call may take less than fifteen minutes. Similarly, if that telephone call took more than fifteen
minutes, but less than thirty minutes, Client would be charged an additional one-quarter (.25) hour of
time.
Attorneys cannot estimate the total amount of the time attorneys incur in your representation and
the expenses which will accrue since the opposing party and his/her attorney(s), as well as other factors,
often control this aspect of Attorneys’ representation of you since they and their counsel can require
action(s) to which Attorneys must respond in order to properly represent you.
Reimbursement of Expenses Advanced: Client agrees to reimburse Attorneys for expenses
incurred on Client’s behalf. Expenses charged by Attorneys in addition to Attorneys’ hourly fees include
photocopying, long distance telephone calls, facsimile transmissions and receptions, postage, parking
fees, mileage, delivery and other similar charges, as well as filing fees, deposition charges, costs for the
services and/or testimony of expert witnesses (such as psychologists, social workers, accountants and
appraisers), and investigator expenses. Attorneys agree not to obligate Client for any large expense
without Client’s prior approval. However, with respect to potentially large expenses, such as the cost of
depositions and expert, consultant or other professional fees incurred on Client’s behalf, these expenses
will either be deducted from the money on deposit in Client’s retainer account or will be paid directly by
Client immediately upon receipt of the provider’s statement for these services if the retainer account
balance is insufficient for the payment of such costs.
_____
_
I iti l
_____
_
I iti l
_____
_
I iti l
_____
_
I iti l
Mediation Fees: In the event the matter is mediated, Attorneys will require Client to pay the
mediator’s fees to Attorney’s in advance of the mediation. This payment of the mediator’s fees is in
addition to the expenses paid by Attorneys out of the retainer referenced in the preceding paragraph.
Client, upon prior arrangement with Attorney’s, may pay the mediator’s fees directly to the mediator prior
to the commencement of the mediation. However, the mediator’s fees are required to be paid by the
mediator before the mediation commences.
Replenishment of Retainer: Client understands and agrees that if the amount of Client’s
retainer should fall below one hundred percent (100%) of its original amount at any time, Client
agrees to pay an additional retainer within seven (7) days of notice of the reduced retainer in an
amount sufficient to replenish the initial retainer to one hundred (100%) of its original amount. In
this regard, Client should understand that Attorneys will require that Client’s retainer with Attorneys must
be sufficiently “replenished” in accordance with this paragraph prior to mediation, as well as, in the event
of an unsuccessful mediation, not less than two weeks prior to the trial of Client’s matter. Any unused
retainer or unused subsequent replenishment will be refunded to Client upon conclusion of
Client’s case.
If Client fails to deposit the additional retainer within seven (7) days as required by the
preceding paragraph, Attorneys may withdraw as Client’s attorney, and/or cease work, and/or will
have no further responsibility to work on Client’s case. (Client may elect to pay Client’s bill when
received by credit card by signing the credit card provisions contained at the end of this contract.)
Client’s failure or inability to pay Attorneys’ retainer fees and/or expenses as herein provided shall
operate as a condition subsequent and may allow Attorneys to withdraw from Client’s representation.
Unless some other agreement has been reached between Client and Attorneys, any balance due
21
Attorneys at the conclusion of Client’s case shall be payable prior to the final hearing in this
matter.
_____
_
I iti l
Attorneys will send Client a statement each month in which Attorneys have incurred expenses or
performed services on behalf of Client. Questions arising from Attorneys’ monthly statement must
be brought to Attorneys’ attention within twenty (20) days of Client’s receipt of Attorneys’
statement. It is understood that all sums due and payable pursuant to this agreement shall be payable
by Client to Attorneys at their offices in San Antonio, Bexar County, Texas, which will include all charges
for professional services rendered, together with all costs of court and expenses reasonably and
necessarily incurred in Attorneys’ representation of Client.
Client understands that Client must pay Attorneys’ fees whether or not Attorneys are able
_____ to resolve Client’s problem to Client’s satisfaction.
_
Client realizes that Client is primarily responsible for the payment of the attorney’s fees and
I iti l
expenses. In the event the Court should award attorney’s fees, the amount awarded by the Court does
not limit the amount Client owes and/or may still owe Attorneys. Further, in the event the Court awards a
judgment for attorney’s fees, the difference between the amount of the judgment awarded and actually
received/collected as a result of that judgment and the amount of the attorney’s fees incurred by and
owed to Attorneys by Client shall be paid by Client to Attorneys. In the event Client has already paid
Attorneys all of the attorney’s fees owed to Attorneys, any monies Attorneys should receive as a result of
a judgment for attorney’s fees against the opposing party shall be paid to Client. The scope of this
Employment Contract and the attorney’s fees involved herein does not cover the collection of any
judgment for attorney’s fees awarded by the Court against the opposing party. Client realizes that
Client will have to make additional arrangements for the payment of attorney’s fees for the collection of a
money judgment against the opposing party. Client further realizes that, in the event Client paid
Attorneys in full, Attorneys will assign to Client any judgment for attorney’s fees awarded by the Court to
them.
Client understands that Attorneys will not give any advice on the value of any property. If the
client does not know the value of an asset client should seek an appraisal. Client understands that
Attorneys will not give any financial advice of any type or nature. Client understand and agrees that any
discussion of property values and/or financial matters as they may relate to Client’s case are for
discussion of the presentation of Client’s case and are not intended to be relied upon by Client other than
in the context of Attorneys representation of Client and for no other purpose.
In further consideration of Attorneys’ agreement to represent Client in the referenced legal matter,
Client has agreed to and does hereby assign to Attorneys a lien against any and all sums of money
coming into Client’s and/or Attorneys’ hands to which Client is or may become entitled related to and/or
arising out of Attorneys’ representation of Client in the matter made the subject of this employment
agreement, but then only to the extent of all unpaid Attorneys’ fees and expenses hereby contracted by
Client. By signing this agreement, Client additionally hereby appoints Attorneys as Client’s attorney-infact with the specific power to negotiate cash and/or give receipt for any amounts paid to Client related to
and/or arising out of Attorneys’ representation of Client in the matter made the subject of this employment
agreement. Any money owed to Attorneys by Client shall first be deducted from any money payable to
Client as a result of the legal action for which legal services have been rendered by Attorneys.
Client understands that interest at a rate which will not exceed one and a half percent (1 1/2%)
per month will automatically be charged on any and all previous balances due in excess of thirty days
from the date of billing, which Client agrees to pay. Any interest charged, however, shall not exceed the
maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or
received under law; any interest in excess of that maximum amount shall be credited on the principal of
the debt or, if that has been paid, refunded. Upon any acceleration or required or permitted prepayment,
if applicable, any such excess interest shall be canceled automatically as of the acceleration or
prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt has been
22
paid, refunded. This provision overrides other provisions in this and all other instruments concerning the
interest on any such unpaid balance.
Upon completion of services, Client agrees that all sums due and owing for legal fees and
expenses will be paid in full. In the event such sums are not paid in full, upon the request of Attorneys,
Client agrees to sign a promissory note with Attorneys for all additional amounts owing. The promissory
note shall be in the standard form of promissory note prepared and issued by the State Bar of Texas,
shall provide for interest at a rate not to exceed eighteen percent (18%) per annum on all amounts owing
and not paid under the note, and shall provide for a monthly payment schedule which shall cause the
amount then owed Attorneys by Client to be paid in full no later than two (2) years of the date of the last
bill sent by Attorneys to Client unless written approval of other arrangement is made with Attorneys.
Other than to provide reasonable and necessary legal services to the best of Attorneys’
ability, Attorneys make no representations, promises, or guarantees as to the outcome of the case
for which Client has retained Attorneys, including whether costs or expenses incurred by Client
will be reimbursed by the adverse party. Further, attorneys have made no estimate as to the total
fee for Client’s legal services.
ATTORNEYS DO NOT PROVIDE TAX ADVICE - Client acknowledges that Client has been advised by
Attorneys that there may be certain tax consequences pertaining to any divorce decree and/or other order
and/or settlement agreement reached that disposes of the matter in controversy; that Attorneys have not
and will not furnish tax advice to Client regarding any matter for which Attorneys are retained by Client;
and that Client has been directed and advised to obtain independent tax counsel prior to signing any
divorce decree and/or other order and/or settlement agreement that may hereafter be prepared in
finalizing some or all of Client’s claims made the subject of this Employment Agreement.
PERSONAL INJURY CLAIMS EXCLUDED - Client agrees and understands that Attorneys have not
been retained to represent Client with respect to any claim of personal injury that Client may have as a
result of any event(s) arising out of the family law matter made the subject of this contract. Client
therefore agrees and understands that a separate employment contract must be signed by Client and
Attorneys before Attorneys will represent Client with respect to any potential personal injury claim,
whether or not it emanates from the family law matter made the subject of this Employment Agreement.
CHILD CUSTODY MATTERS EXCLUDED - Client agrees and understands that Attorneys have not been
retained to represent Client regarding any issues concerning child custody matters. Client further agrees
and understands that Attorneys representation of Client in this matter, unless separately employed to
handle such custody matters, shall terminate should any custody matters arise. Client therefore agrees
and understands that a separate employment contract must be signed by Client and Attorneys before
Attorneys will represent Client with respect to any such custody matter.
APPEALS EXCLUDED - Client agrees and understands that Attorneys have not been retained to
represent Client in the appeal of any judgment which may be signed as a result of Attorneys’
representation of Client made the subject of this contract. Client further agrees and understands that
Attorneys representation of Client in this matter, unless separately employed to handle the appeal of any
such judgment, shall terminate following the entry of a judgment by the trial court and all wrap-up
documents have been prepared. The preparation of a motion for new trial, if Client determines same
to be necessary to preserve Client’s appellate rights, is not included in this contract. Client
therefore agrees and understands that a separate employment agreement must be signed by Client and
Attorneys before Attorneys will represent Client with respect to any such appeal.
COPIES OF CLIENT’S FILE CLIENT’S EXPENSE – In the event that Client discharges Attorneys and
“requests their file” from Attorneys, any cost to provide Client with a copy of the file that has been
created and/or maintained by Attorneys during the course of Attorneys’ representation of Client and/or the
file materials created by Attorneys and/or coming into the possession of Attorneys during the normal
course and scope of Attorneys’ representation of Client in this matter (“Client file”) shall be the sole cost
of Client. Notwithstanding the foregoing, the cost of copying any original documents/exhibits provided to
23
Attorneys by Client shall be that of Attorneys if Attorneys want to retain a copy of said original documents.
All such original documents of Client shall be returned to Client upon Client’s request and/or as part of the
delivery to Client of Attorneys’ “Client file.” Attorneys shall retain the right to require Client, upon
Attorneys’ receipt of a request for a copy of Client’s file, to deliver the original of Attorney’s “Client file” to a
copy service designated by Client, which copy service shall, at Client’s sole cost and expense, copy
Attorney’s “Client file” and return the original of such file to Attorneys, while delivering the copy to Client.
WAIVER OF JURY DEMAND - Should any dispute arise regarding the terms or conditions of this
Employment Agreement, including but not limited to the services rendered (including but not limited to
any claims by Client against Attorneys for professional negligence, breach of fiduciary duty and/or legal
malpractice), or the fees, costs, or expenses payable hereunder, all parties hereby agree that the matter
shall be decided, nonjury, by a District Court of Bexar County, Texas. In this regard, Client and Attorneys
each understand and agree that, by signing this agreement, each is waiving their right to have any such
dispute decided by jury and will submit the matter to the decision of a judge alone, that is, without the
additional advice of a jury. Thus, in signing this Employment Agreement, Client acknowledges that, as to
a dispute arising from and/or related to the terms or conditions of this Employment Agreement, which
specifically includes potential future claims addressed in this waiver of jury demand clause, (1) each
party, including Client, is expressly waiving the right to a trial by jury on these matters; and, (2)
before signing this Employment Agreement and thereby agreeing to be bound by the provisions of this
clause, Client has the right to obtain legal advice from independent counsel if the provisions and
ramifications of this clause are not fully understood, but has, with full understanding of this clause and its
provisions, nevertheless agrees to its inclusion in this Employment Agreement and agrees to be bound
thereby. The provisions of this clause are not in any way intended to prospectively limit Attorneys
potential liability to Client, if any, but are only intended to specify the forum and/or manner in
which redress of any such claims will be resolved.
BINDING ARBITRATION CLAUSE – In the event that the parties, in lieu of the nonjury trial specified in
the preceding paragraph, desire to resolve any dispute regarding the terms or conditions of this
Employment Agreement and should mutually agree that the dispute should be referred to binding
arbitration in lieu of the litigation associated with a non-jury trial, then, in that event, the parties hereby
agree that the arbitrator will be appointed by the then Presiding District Judge of Bexar County, Texas. In
the event of any such arbitration, the provisions of Chapter 171 of the Texas Civil Practice and Remedies
Code shall govern any such arbitraton proceedings to the extent the parties cannot otherwise agree.
Client acknowledges that subject to the foregoing “Waiver of Jury Demand” provision, as to a dispute
arising from and/or related to the terms or conditions of this Employment Agreement, which specifically
includes potential future claims addressed in this binding arbitration clause, is agreeing to be bound by
the provisions of this Binding Arbitration Clause. Client understands that Client has the right to obtain
legal advice from independent counsel if the provisions and ramifications of this clause are not fully
understood. Client, with full understanding of this Binding Arbitration Clause and its provisions,
nevertheless agrees to its inclusion in this Employment Agreement and agrees to be bound thereby. The
provisions of this clause are not in any way intended to prospectively limit Attorneys’ potential
liability to Client, if any, but are only intended to specify the forum and/or manner in which redress
of any such claims will be resolved.
GENERAL - Attorneys will keep Client informed of the progress of Client’s case. Attorneys will endeavor
send Client copies of all papers related to Client’s case coming into and going out of Attorneys’ office,
including correspondence, pleadings and other documents (save and except, perhaps, copies of emails).
If the assigned attorney and/or their paralegal is not available when Client telephones, Attorneys will
endeavor to have Client’s call returned as soon as possible by another member of Attorneys’ staff. All of
Client’s communications with Attorneys are confidential.
Confidentiality of Client’s
communications with Attorneys also applies to all employees of Attorneys.
Communications between Attorneys and Client about Client’s case are privileged. Candor and
truth are important in the pursuit of the Client’s objectives. Only if Attorneys know all of the facts can
Attorneys perform the services for which Client has hired Attorneys. However, some communications are
not protected. Texas Family Code §261.101 compels any professional (including Client’s attorney) to
24
reveal information regarding child abuse if the professional, i.e., Attorneys, have cause to believe that a
child has been abused or neglected or may be abused or neglected or that a child is the victim of an
offense under Texas Penal Code §21.11.
Attorneys will make every effort to expedite Client’s case promptly and efficiently according to the
legal and ethical standards promulgated by the Supreme Court of Texas. Attorneys are bound by
professional rules of conduct which require Attorneys to serve Client and the court honestly and faithfully.
If Client insists that Attorneys break any of the disciplinary rules under which Attorneys practice law,
insists upon presenting a claim or defense not warranted under existing law and which cannot be
supported by a good faith argument for extension or reversal of such law, personally seeks to pursue an
illegal course of conduct, insists that Attorneys take an action which is dishonest, insists upon the use of a
witness who will not tell the truth, or by other conduct renders it unreasonably difficult for Attorneys to
carry out Attorneys’ representation of Client, Attorneys must withdraw from representing Client.
The State Bar Act requires that Texas attorneys give notice to their clients that the State Bar of
Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not
every complaint against or dispute with a lawyer involves professional misconduct, the State Bar’s Office
of General Counsel will provide information about how to file a complaint by calling 1-800-932-1900 toll
free.
Client understands that Attorneys will deliver Client’s bills to Client, when billed, usually monthly,
at this e-mail address: _______________________________________________ and expressly
authorizes attorneys to do so.
THE UNDERSIGNED HAS FULLY AND COMPLETELY READ THE FOREGOING CONTRACTUAL
AGREEMENT HAS ABSOLUTELY NO QUESTIONS WHATSOEVER CONCERNING ANY OF ITS
PROVISIONS AND FULLY UNDERSTANDS AND AGREES TO EACH AND EVERY TERM AND
PROVISION STATED THEREIN.
AGREED TO AND SIGNED this _____ day of _____________________ 2015.
HIGDON, HARDY & ZUFLACHT, L.L.P.
12000 Huebner Rd., Suite 200
Telephone: (210) 349-9933
Telecopier: (210) 349-9988
E-Mail: CHARLESHARDY@HHZLAW.COM
_______________________________________________
CLIENT’S NAME: __________________________________
SIGNATURE:_______________________________________
ADDRESS: _________________________________________
CITY/ZIP: _________________________________________
HOME PHONE: (______) _______________________
OFF. PHONE: (______) _______________________
CELL PHONE: (______) _______________________
SSN: __________________________________
25
GUARANTY AGREEMENT
For valuable consideration, being Attorneys agreement to represent Client at my/our request,
I/We hereby guarantee the payment of all expenses and fees incurred and/or professional services
rendered by Attorneys for Client pursuant to this Employment Contract.
AGREED TO AND SIGNED this _____ day of _________________2015.
GUARANTOR’S NAME:
GUARANTOR’S ADDRESS:
PRINTED:
___________________________________
SIGNATURE: ________________________________
SSN: ______________________________________
DLN: _______________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
SIGNATURE:_________________________________
26
DATE: ____________________
Client Credit Card Pre-Authorization
OPTIONS
In an effort to better serve our clients and simplify your billing experience, our firm offers credit
card acceptance. Charge card information is filed with your confidential client information and kept
secure. Please print legibly
______ (initial) I hereby authorize Higdon Hardy & Zuflacht, LLP to charge the Retainer currently
due on my account for the amount of $__________________________.
______ (initial) I hereby authorize Higdon Hardy & Zuflacht, LLP to charge the balance of my
th
account automatically each month. Card will be charged on/about the 10 of the month for prior
month fees and replenishment.
CLIENT NAME/FILE #:
Card Holder Name:
Card Billing Address:
PAYMENT INFORMATION
City, State, Zip
Email for Receipt:
Phone:
Type of Card:
Card Number:
Print legibly
Expiration Date:
Security Code:
(last three digits on card, last four on AMEX)
The undersigned guarantees performance of the financial provisions of this agreement.
Name Printed:
CHARGE
POLICY
Signature of Card Holder:
Date:
Being the cardholder or the Corporate Officer, by signing above I understand and agree to the
terms set forth in this agreement, agree to pay, and specifically authorize to charge my credit card
for the services provided. I further agree that in the event my credit card becomes invalid, I will
contact & provide a new valid credit card upon receipt, to be charged for the payment of any
outstanding balances owed. I furthermore confirm that I have received all services and goods to
satisfactory conditions.
27
EXHIBIT "2"
BASHARA & SCHWARTZ
[Date]
VIA FIRST CLASS MAIL
[Name]
[Address]
[City, State, Zip Code]
Re; [Matter]
Dear [Name];
Please let this letter serve to outline the terms of our
attorney-client
relationship
with
respect
to
the
abovereferenced matter.
1.
We agree to represent you in connection with [state
matter, i.e., divorce action, modification proceeding,
etc.]. My rate will be $550.00 an hour billed in .1
increments. In addition thereto, you agree to pay all
costs and expenses associated with our representation,
including but not limited to court costs, expert
witness and court reporter fees, along with travel,
telephone, copying, delivery, and fax expenses.
To the extent Julian N. Schwartz does work on the case,
he will be compensated at the rate of $300.00 an hour
billed in .1 increments.
To the extent a secretary performs paralegal services,
such as providing assistance to you in connection with
responding
to
written
discovery,
organization
of
discovery
documents,
indexing
of
depositions,
preparation of inventories, or receiving information
from you intended for an attorney, such time will be
billed at $100.00 an hour in .1 increments.
2.
In the event that fees, costs and expenses are
timely paid in accordance with this agreement, I
withdraw from my representation of you, pay
outstanding bills, including my own, and refund
retainer balance, if any, to you.
not
may
any
the
You
will
pay me an initial retainer of $ ________ . The
retainer will be held in our trust account to protect
the fee. YOU WILL RECEIVE A MONTHLY BILL WHICH YOU WILL
BE EXPECTED TO PAY BY THE 10TH OF THE MONTH WITH NONRETAINER FUNDS.
3. ________________________________________________________________
28
[Name}
{Date}
{Page Number}
In the event my monthly fee statements are not timely
paid, I may use any portion of the retainer to pay the
monthly bill. The retainer will eventually be credited
against
the
amount
due
and
owing
when
the
representation is concluded. Any amount not used will
be returned to you.
4.
No warranties or representations,
implied, are made by us.
5.
You have the right to discharge me at any time, but
will be responsible for the fees, costs and expenses
incurred through the date of discharge.
6
either
express
or
.IN CONNECTION WITH ANY DISPUTE ARISING BETWEEN US,
INCLUDING
BUT
NOT
LIMITED
TO
ANY
FEE
DISPUTE,
MALPRACTICE CLAIM. DTPA CLAIM. FRAUD CLAIM, BREACH OF
FIDUCIARY DUTY CLAIM OR ANY OTHER CLAIM, WHETHER
MENTIONED OR NOT. EACH PARTY EXPRESSLY WAIVES A JURY
TRIAL, AND NEITHER PARTY SHALL BE ENTITLED TO A JURY
UNLESS BOTH SIDES AGREE IN WRITING. NOTWITHSTANDING THE
WAIVER
OUTLINED
ABOVE.
THE
PARTIES.
BY
WRITTEN
AGREEMENT, MAY SELECT THEIR OWN ARBITER TO RESOLVE ANY
DISPUTE. EACH PARTY TO THIS AGREEMENT EXPRESSLY WAIVES
THE RIGHT TO AN ATTORNEY IN CONNECTION WITH THE
EXECUTION OF THIS AGREEMENT.
Very truly yours,
SAM C. BASHARA
SCB:mel
AGREED to this the
_
day of _________
29
Exhibit “3”
FEE AGREEMENT FURNISHED BY LAW OFFICE OF MARK L. MEDLEY
CONTRACT AND AGREEMENT
The undersigned, hereinafter sometimes referred to as "Client" and the undersigned, LAW
OFFICE OF MARK L. MEDLEY, P. C., sometimes hereinafter referred to as "Attorney", hereby
enter into the following Contract and Agreement regarding Attorney's representation of Client in
the following matters:
CONTESTED CONSERATORSHIP AND DIVORCE
Client understands the following conditions regarding employment of Attorney in this case:
1.
The date of actual employment of Attorney is __________________, 2011;
2.
No representations have been made by an Attorney as to the ultimate success of the case
and the only material representations made by Attorney to Client are that Attorney will exert his
best professional efforts in his representations of Client. There have been no guarantees made by
the Attorney that there will be a recovery of fees, costs or expenses incurred by Client in this
cause of action;
3.
Client fully understands that in the event sums are recovered and actually received from
the opposing party, they shall first be credited to unpaid fees, costs or expenses with any
remaining fees paid to Client;
4.
Client fully understands that this instrument represents a contract for services rendered
and to be rendered by Attorney and that such services are conditioned upon the terms of this
agreement, including but not limited to payment of attorney fees to Attorney in accordance with
the fee schedule and other fee terms as set forth herein;
5.
Client fully understands that Attorney accepts no responsibility or liability of any nature
for any matters related to this cause which precede the date of this Agreement;
6.
Client fully understands that there is a Minimum Fee Deposit of $
, paid
simultaneously with the execution of this Contract; $
of such fee IS IN NO PART
REFUNDABLE, although time expended on your behalf will be credited toward this fee. The
Minimum Fee Deposit is based upon the perceived complexity of your case, the likelihood that
acceptance of your case may preclude me from taking other cases and the skill and expertise of
the attorney;
7.
Client fully understands that such Minimum Case Fee deposit is absolutely vested to
LAW OFFICE OF MARK L. MEDLEY, P. C. upon execution of this Agreement;
30
8.
Client fully understands that there is a Trust Deposit of $ ______________ (part of the
minimum fee deposit) which is to be paid simultaneously with the execution of this contract.
Any fees deposited in trust and not expended will be refunded to Client at the close of the case,
less all fees, and expenses owing the firm. Client understands that the fees in this matter may
well exceed $40,000.00.
9.
Client fully understands that at such time as the Minimum Case Fee referred to in
paragraph 6 and the Trust Deposit referred to in paragraph 8 above have been expended, Client
shall be required to make an additional trust deposit or maintain a current balance with the
Attorney at the Attorney's discretion;
10.
Client fully understands that no less than the 1st day of the month prior to the month in
which a trial of this cause of action is set, unless other arrangements are specifically made in
writing, Attorney requires any past due or billed and unpaid fees and expenses to be brought
current and a trial deposit to be made in an amount not less than the amount determined by
multiplying 9 hours per day by the attorney's hourly rate as provided herein for the number of
trial days estimated by the Attorney;
11.
I DO NOT REPRESENT CLIENTS ON A FIXED-FEE BASIS IN CONTESTED
CASES. Any figures quoted as to the total cost of services are merely estimates, based on stated
hypothetical occurrences and they cannot be relied upon as an accurate estimate. Your
adversary, the opposing attorney, or others may engage in activities requiring attorney to expend
additional time not originally contemplated;
12.
Client fully understands that Attorney may withdraw from representation in the event
Client:
a.
Insists upon presenting a claim or defense not warranted under existing law and
which cannot be supported by a good faith argument for extension or reversal of such law.
b.
Personally seeks to pursue an illegal course of conduct.
c.
Requests that the Attorney pursue a course of conduct which is illegal or
prohibited under the disciplinary rules.
d.
By other conduct renders it unreasonably difficult for the Attorney to carry out
employment.
e.
Insists upon the Attorney engaging in conduct which is contrary to the judgment
or advice of the attorneys.
f.
rendered.
Disregards an agreement with Attorney as to fees or services, costs or expenses
31
g.
Fails to keep attorney promptly informed of any change in Client' home address
and home telephone number.
h.
After investigation of the facts and research of the law, does not wish to continue
to represent Client.
13.
This agreement shall not bind ATTORNEY to represent you after judgment is rendered
and entered, but if we represent you after judgment without a new compensation agreement, then
for the additional work, you shall pay the greater of a reasonable fee as defined above or the
hourly fee arrangement above-described, plus in either case, the expenses under the same terms
of this Agreement. This Agreement inures to the benefit of and binds the parties', their heirs,
successors, and assigns.
14.
ATTORNEY and CLIENT agree that no settlement or disposition of this matter shall be
made without the consent of both ATTORNEY and CLIENT.
15.
CLIENT shall notify ATTORNEY of any change of address, residence phone number,
employment and employment telephone number, within 48 hours of any such change. If
CLIENT fails to supply ATTORNEY with this information, ATTORNEY may, within his sole
discretion, withdraw from representing CLIENT or abstain from rendering any further legal
services to CLIENT until CLIENT have complied with this requirement.
16.
Any NOTICE required to be made by ATTORNEY, CLIENT, under the terms of this
contract, by the Code of Professional Conduct or by any of the State or Federal Rules of
Procedure, shall be deemed adequate and proper, if mailed by ATTORNEY First Class Mail,
postage prepaid, to the last address supplied by CLIENT to ATTORNEY.
17.
CLIENT certifies that ATTORNEY was employed voluntarily and without solicitation
by ATTORNEY and that only MARK L. MEDLEY, ATTORNEY AT LAW, represents
CLIENT regarding the legal matters covered by this contract.
REQUIRED
NOTICE TO Client
The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas
Attorneys.
Although not every complaint against or dispute with a lawyer involves professional misconduct,
the State Bar Office of General Counsel will provide you with information about how to file a
complaint.
For more information, please call 1-(800) 932-1900. This is a toll-free phone call.
32
FEE SCHEDULE
Attorney and Client understand that the following fee schedule shall apply as a condition of
employment and that Client accepts full responsibility for the payment of all balances due for
legal services as follows:
1.
All trial and non-trial time expended in connection with this cause shall be charged at the
rate as set forth below.
Non-trial charges include, but are not limited to, telephone conferences, interviews with Client or
other parties in connection with this cause, legal research time, drafting of legal instruments,
preparation for Court, review of correspondence and documents, and miscellaneous time spent in
office practice and/or legal investigation.
2.
Trial time includes time in Court Room attendance, whether in actual trial of this cause or
at ancillary hearings or motions, such as motions for contempt.
3.
All case expenses, including subpoena costs, court costs, filing costs, automobile mileage
charges at $.25/mile, deposition costs, accounting costs, investigation costs, expert's charges,
delivery service costs, photocopy and certified copy costs, long-distance telephone costs,
hotel/motel costs plus meals and other transportation costs when out-of-town travel is required,
computer disk rental and all other miscellaneous actual expenses incurred in connection with this
cause are due and payable by Client, as incurred, and will be paid from trust account deposit so
long as such is available.
4.
All time will be recorded in units of 1/10th hour (6 minutes) with a 2/10th minimum,
even though the time spent may be less than 12 minutes.
5.
All accounts are due and payable in Bexar County, Texas. Unpaid fee balances owed to
the Attorney as well as expenses advanced on behalf of the Client shall bear interest at the rate of
12% per annum commencing thirty (30) days after the date the Attorney's representation of
Client is concluded. Such interest shall appear on each statement.
MISCELLANEOUS
1.
THIS CONTRACT AND AGREEMENT DOES NOT INCLUDE PRESENTATION OF
THIS CASE TO ANY APPELLATE COURT, and in the event an appeal is necessary, Client
and attorney will consider the appeal as a separate and distinct cause of action requiring new fee
arrangements.
This agreement shall not bind ATTORNEY to represent you after judgment is rendered and
entered, but if we represent you after judgment without a new compensation agreement, then for
the additional work, you shall pay the greater of a reasonable fee as defined above or the hourly
fee arrangement above-described, plus in either case, the expenses under the same terms of this
33
Agreement. This Agreement inures to the benefit of and binds the parties', their heirs, successors,
and assigns.
BILLING RATES
Attorney and Client understand that, from time to time, during the pendency of this cause and the
Attorney/Client relationship, that Attorney may deem it necessary to use the services of legal
assistants, paralegal employees, or other associates, and Client agrees that use of such is
acceptable to him/her and that all work performed by assistants selected by Attorney shall be
fully supervised by MARK L. MEDLEY, and that the periodic time spent, if any, by attorney
and staff shall be billed at the following rates:
MARK L. MEDLEY $______ per hour
Legal Assistant
$_____ per hour
Legal Secretary
$_____ per hour
My billing rates may change in the future. Often family cases pend as long as 12 to 24 months.
If my hourly rates change, you will be notified at least 30 days before the change takes effect.
SIGNED __________________, 2015.
LAW OFFICE OF MARK L. MEDLEY, P.C.
14350 Northbrook Drive, Suite 150
San Antonio, Texas 78232
(210) 490-7999
(210) 490-7998 Telecopier
CLIENT -
________________________________
MARK L. MEDLEY
TEXAS STATE BAR NO. 13895825
34
EMPLOYMENT AGREEMENT
I, the undersigned client, hereby employ the Law Office of Mark L. Medley, P.C. of San
Antonio, Bexar County, Texas, to represent me in performing certain legal services pertaining to
my family law case and all related matters.
IT IS UNDERSTOOD AND AGREED that my attorney will be compensated for his and
his staff's time and effort required to properly perform such legal services. The amount of
attorneys' fees is understood to be $_____ per hour for attorneys' time, $____ per hour for legal
assistants’ time and $_____ per hour for secretaries’ time. I understand my first office
conference with Mr. Medley will be billed at his regular rate. It is understood that failure to pay
fees and expenses as required under this Agreement shall give attorney the right to withdraw
from representation.
IT IS FURTHER UNDERSTOOD AND AGREED that I will reimburse said attorney for
all expenses incurred in performance of such work, including but not limited to long-distance
telephone calls, depositions, travel, filing and recording fees, photocopies, and any other
expenses that are incident and necessary to research, preparation, investigation, prosecution,
negotiation, and/or settlement of the case. The reimbursement of said expenses shall be in
addition to the above-described attorneys' fees.
I am herewith paying the sum of
$_____________________ as a deposit, which is considered earned when paid, toward the fees
and expenses in my case, and I understand that attorneys' fees and expenses incurred will be
billed when they are incurred and will be due and payable upon receipt in Bexar County, Texas.
In the event I wish to pursue my case to the Court of Appeals, or to the Texas Supreme Court, an
additional retainer and a new employment agreement will have to be signed.
Client further understands that this employment agreement terminates upon entry of a
final order from the District Court of Bexar County, Texas.
SIGNED on _______________, 2014.
___________________________________Client:
___________________________________
Mark L. Medley for the
Law Office of Mark L. Medley, P.C.
Independence Plaza II, Ste. 150
14350 Northbrook Drive
(210) 490-7999
(210) 490-7998 Telecopier
35
Exhibit “4”
THE STATE OF TEXAS
COUNTY OF TRAVIS
§
§
§
KNOW ALL PERSONS BY THESE PRESENTS:
THIS AGREEMENT IS MADE AND ENTERED INTO THIS DATE BY AND
BETWEEN CLIENT NAME (the "client") and VAUGHT LAW FIRM, P.C. (the "Firm").
WITNESSETH:
CLIENT NAME, as the CLIENT, has, and does hereby retain, employ, constitute, and
appoint the firm of VAUGHT LAW FIRM, P.C., through this document, as his/her agents and
attorneys-in-fact; and further does hereby agree and contract for legal services to be provided for
and on behalf of the Client in the representation of the Client in family law and/or related
matters; with representation herein contracted for and full power of attorney to include advising,
counseling, negotiating, investigating, handling, prosecuting, and/or defending in said family law
matter or matters arising therefrom or attendant thereto or arising out of the same set of facts or
circumstances, to final settlement or adjudication. If you have requested that this firm represent
you in a collaborative family law matter, then you have read and agreed to all of the provisions
stated in the Addendum to this Agreement, which is attached and incorporated herein for all
purposes, the same as if fully set forth at length.
I.
FACTORS CONSIDERED IN COMPUTATION OF FEE: In consideration
for the services rendered and to be rendered on behalf of Client by the Firm, the Client hereby
agrees to pay said Firm a fee computed by multiplying the number of hours of work of each
Attorney, Paralegal, Contract Attorney, Law Clerk, and/or Litigation Assistant involved in
representing Client by the hourly charge rate established by the Firm for each such person.
James A. Vaught’s hourly rate at this time is $450.00 per hour. Leigh de la Reza’s hourly rate at
36
this time is $325.00 per hour. The associate attorney’s hourly rate at this time is $250.00 per
hour. The Paralegal’s hourly rate at this time is $175.00 per hour. The Senior Litigation
Assistant’s hourly rate at this time is $140.00 per hour. The Litigation Assistant’s hourly rate at
this time is $100.00 per hour. Work on the case will be billed in fifteen (15) minute increments.
All time spent on the Client’s case is recorded and billed; this includes drafting of
pleadings and documents, legal research, office conferences, out-of-office conferences,
telephone conversations, investigation of facts, preparation for and appearances in court,
correspondence, e-mail communications, court waiting time, travel time, and all other tasks
necessary to handle the matter in controversy for the Client. Some tasks performed may involve
the work of more than one person employed by the Firm, in which case the client will be billed
for the time spent by all Paralegals and/or law clerks on the Client’s case.
Expenses charged in addition to our hourly fee include court costs, filing fees, subpoena
costs, service of process fees, recording fees, court reporter fees, outside photocopying charges,
transcript fees, and in-house expenses such as delivery fees.
We do not charge for general computer time in our office, but we do charge for computer
generated legal research when a charge is incurred by the Firm for that research. The cost of
computer generated legal research will be passed through to the client on a strict cost basis.
The costs for depositions, accountant fees, appraiser fees, private investigators, business
valuation fees, consultant fees and other professional fees incurred on behalf of the Client will
either be deducted from the sums of money on deposit in the Client’s retainer trust account or
will be paid directly by the Client immediately upon receipt of a bill for these services if the
retainer trust account balance is insufficient for the payment of such costs.
37
It is further agreed and understood that any and all services rendered by the Firm on
behalf of the Clients subsequent to or after settlement and final adjudication, specifically
exclusive of appeal, shall be included in the services herein contracted.
II.
REPLENISHING RETAINER FEE AND PAYMENT: In consideration for
the services rendered and/or to be rendered on behalf of the Client by the Firm, the Client hereby
agrees to pay the Firm an initial retainer fee in the amount of $$ (the “Initial Retainer”). It is
understood that the Firm will hold the Client's retainer in its TRUST ACCOUNT, which is
credited against the amount owed the Firm by the Client for attorneys' fees, costs and/or
expenses. This retainer is a condition precedent to any obligation of the Firm to perform work
on behalf of the Client. The Firm will provide the Client, semi-monthly, an itemized bill setting
forth in reasonable detail all advances for the above-mentioned expenses, and a description in
reasonable detail of all services provided by the Firm on behalf of the Client in these matters and
fees charged for such services and expenses.
At the end of each of the Firm’s semi-monthly billing cycles, the Firm will transfer the
amount owed by the Client for that interval from the Client’s retainer in the Trust account to the
Firm’s operating account.
When the balance in the Client’s retainer drops below $$ (the
“Replenishing Point”), the Client will be required to replenish the retainer by making payment in
the amount necessary to maintain the retainer fee balance at the agreed upon amount of $$ (the
“Minimum Retainer”). The Client agrees to pay the necessary amount within seven (7) days
upon receipt of the statement showing the retainer balance to be less than $$.
If the Client fails to pay the necessary amount within seven (7) days upon receipt of the
statement showing the retainer balance to be less than $$, the Firm will immediately cease
working on the Client’s behalf and will perform no work on the Client’s behalf until the Client
pays the amount necessary to maintain the retainer fee balance at the agreed upon amount of $$.
38
Failure to pay the amount necessary to maintain the retainer fee balance at the agreed upon
amount of $$ shall be just cause for the Firm to file a motion for continuance (if deemed
necessary) and withdraw from its representation of the Client.
Initial acknowledgement
__________
THE RETAINER IS NOT AN ESTIMATE OF THE TOTAL COST OF THE
REPRESENTATION OF THE CLIENT IN THE FAMILY LAW AND/OR RELATED
MATTER, BUT IS ONLY A “DEPOSIT” TO BEGIN WORK ON THE CASE. WE DO
NOT QUOTE FLAT FEES OR CAPPED FEES.
Initial acknowledgement ___________
III.
TRIAL: A final trial before the Court or before a jury is a time consuming and
expensive process. The Firm puts its personnel and resources to work for the Client in preparing
for and representing the Client in the final trial before the Court or before a jury. In the event
that the Client’s case proceeds to final trial before the Court or to a jury, the Client’s account
must be current forty-five (45) days prior to the trial date, unless written approval has otherwise
been obtained from the attorney-in-charge of the Client’s case. In addition, the Firm will require
the Client to pay a trial retainer in an amount to be determined at the sole discretion of the Firm.
The trial retainer must be paid at least forty-five (45) days prior to the trial date and replenished
every 15 days thereafter. The Client will be required to replenish the trial retainer by making
payment in the amount necessary to maintain the retainer fee balance at the agreed upon amount
on the Friday prior to the trial date. The trial retainer is in addition to the Initial Retainer referred
to in paragraph II above.
The Client’s failure to pay the trial retainer, to replenish the trial retainer on the Friday
prior to the trial date or to replenish the Initial Retainer shall be just cause for the Firm to file a
motion for continuance (if deemed necessary) and withdraw from its representation of the Client.
39
____________
Questions arising from the Firm’s monthly statements must be brought to the attention of
the Firm by the Client within twenty (20) days of the Client’s receipt of the Firm’s billing
statement.
Upon completion of services, the Client agrees to pay any and all sums due and owing to
the Firm for legal fees and expenses, in full. In the event such sums are not paid in full, upon the
request of the Firm the Client agrees to sign a promissory note payable to the Firm for all
additional amounts owing. The promissory note shall provide for interest on amounts owing and
not paid under the note, and shall provide for a monthly payment schedule which shall cause the
total amount due to be paid in full no later than one (1) year of the date of the last monthly bill
sent by the Firm to the Client, unless written approval of other payment arrangements is made.
Once the Client’s case is concluded and all fees and expenses have been paid, if funds remain in
the Client’s retainer, then the Client will be refunded any balance remaining in the Client’s
retainer fee; such balance to be refunded to the Client at the conclusion of the billing cycle.
In the event the Firm is compelled to intervene in a pending lawsuit or initiate any lawsuit
in order to recover the fee or fees for services rendered due to the Firm, the Client agrees to pay
any and all attorneys' fees accruing in favor of the attorney or attorneys employed by the Firm to
recover the fees due the Firm pursuant to the terms of this contract and additionally, the Client
agrees to pay any and all court costs and expenses connected with the pending lawsuit or any
subsequent lawsuit as hereinabove described.
IN THE EVENT AN APPEAL OR THE DEFENSE OF AN APPEAL IS
DETERMINED TO BE NECESSARY AFTER TRIAL, IT IS AGREED AND
40
UNDERSTOOD THAT A NEW CONTRACT WILL BE NEGOTIATED FOR THE
SERVICES OF THE FIRM.
IV. SUMS ACTUALLY RECOVERED FROM THE SPOUSE: It is further agreed
and understood that any sums recovered from the Client's spouse by the Client or by the Firm,
pursuant to an order of the Court, verdict of the jury, or by agreement of the parties, shall be
credited against the amount owed by the Client for attorneys' fees, costs, and/or expenses, and
the Firm shall have a security interest (not proprietary interest) therein until fully satisfied;
provided, however, that no such sums shall be credited until actually received by the Firm.
V. CLIENT RESPONSIBILITY: The Client understands and acknowledges that the
Client has some responsibility for their case. The Client will be responsible to meet certain
deadlines requested by the Firm with respect to matters such as discovery responses, for
example. The Client understands that there are certain matters which the Client must take care
of during this litigation. For example, if the Client elects to ignore the advice of the Firm, then
the Client must take responsibility for the consequences of his or her actions. This is your case,
and the ultimate outcome depends in part on how you conduct yourself.
VI.
DECISIONS,
CONTINUANCES:
STRATEGY,
PROFESSIONAL
COURTESIES
AND
Matters of strategy are generally within the authority of the Firm.
However, the Firm will consult with Client on general matters of strategy. Matters of strategy
include the use of depositions, initiation of the settlement process, the timing of litigation and the
like. Professional courtesies and continuances are solely within the discretion of the Firm who
may grant extensions of time, consent to continuances, or extend other traditional professional
courtesies. Substantive decisions, such as the terms of an offer of settlement to be made or
whether to accept or reject an offer, are solely within the discretion and control of Client.
VII.
AUTHORIZATION AND WAIVER REGARDING COMMUNICATIONS
41
VIA FACSIMILE AND E-MAIL: Client authorizes the Firm to transmit to Client and any
other individual or entity deemed necessary by the Firm, communications and/or information by
facsimile and e-mail. Client waives any right to hold the Firm liable for any breach of the
attorney/client privilege as a result of communications and/or information transmitted by
facsimile or e-mail, whether or not the communications and/or information is erroneously
misdirected or intentionally or unintentionally intercepted by the other party or by a third party.
VIII. USE OF WIRETAPPING OR OTHER RELATED DEVICE:
Client
represents and warrants that neither s/he nor anyone on his/her behalf has installed, utilized or
otherwise operated a wiretapping device, including but not limited to a recording device on a
telephone or software on a computer to monitor usage or communication, without the express
consent of the Client's spouse and/or the opposing party ("wiretapping activity"), and further
represents and warrants that s/he has not and will not provide any information, data or other
material to the Firm that is the product or result of any such wiretapping activity. Client
acknowledges that the Firm has fully explained that any such wiretapping activity may be illegal
and may give rise to civil and criminal liability, and by entering into this Contract, Client
represents and warrants that s/he has engaged in no such wiretapping activity.
IX.
_____________
SETTLEMENT: No settlement of any nature shall be made for any of the
aforesaid claims of the Client without the complete approval of the Client.
X. VALUATION OF MARITAL ASSETS: WE ARE NOT BEING RETAINED TO
VALUE THE MARITAL ASSETS NOR DO WE CLAIM TO HAVE EXPERTISE IN THIS
AREA. You must determine, based upon the information obtained through the proceeding,
which assets you would like to receive, the value of those assets, and the economic ramifications
concerning all your property.
We may advise you to retain appropriate experts, such as
42
accountants, financial advisors, or real estate or business appraisers, to assist in this regard. We
do not automatically search titles, determine the validity of income and expense figures supplied
by your spouse or other opposing party, or attempt to verify other underlying data provided as
part of the dissolution proceeding. If there are questions in your mind concerning any of these
issues, you should discuss them with us and authorize us to retain appropriate experts to provide
assistance on your behalf. If you have retained this firm to represent you in a collaborative
family law matter, then the provisions related to experts set forth in the Addendum to this
Agreement also apply.
XI. TAX LANGUAGE.
THIS FIRM DOES NOT GIVE TAX ADVICE.
Any
information concerning federal income taxes or the tax consequences of potential transactions,
given to Client is intended to constitute nothing more than a starting place for discussions
between the client and their Certified Public Accountant or other tax advisor. THE CLIENT
AGREES TO RELEASE THE FIRM OF ANY LIABILITY associated with tax related language
contained in any Court order or decree and agrees to review such language with a Certified
Public Accountant or other tax advisor before the entry of such decree or order. If you have
retained this firm to represent you in a collaborative family law matter, then the provisions
related to experts set forth in the Addendum to this Agreement also apply.
XII. FAVORABLE OUTCOME NOT GUARANTEED: The Client understands that
the Firm has made no representations concerning the successful termination of the claim or
claims relating to the matter in controversy or the favorable outcome of any legal action that may
be filed and has not guaranteed that the Firm will obtain reimbursement to the Client of any of
the costs or expenses incurred by the Client in the prosecution of said claim or claims. The
Client further expressly acknowledges that all statements of the Firm on these matters are
statements of opinion only.
43
XIII.
BINDING ARBITRATION:
The Firm and Client agree that any disputes
between Client and the Firm regarding any matter arising out of our attorney/client relationship
at any time (except attorney disciplinary matters), including but limited to fees, charges, and/or
the nature and quality of legal services (including but not limited to claims of professional
negligence, malpractice, or breach of fiduciary or ethical duties), which are not capable of being
resolved between us shall not be determined by a judge or a jury but instead shall be resolved by
binding arbitration. Either party may institute arbitration by sending a written demand to the
other party. The parties agree to appoint one arbitrator, whose decisions shall be binding in all
respects. Any arbitrator appointed by the parties must be an attorney who (i) has undergone
arbitration training conducted by the American Bar Association or the American Academy of
Matrimonial Lawyers, and (ii) is in good standing with the State Bar of Texas. The arbitrator
shall be selected by mutual agreement of the parties from a list of arbitrators meeting the
foregoing criteria. If the parties are unable to agree upon the selection of an arbitrator, the first
party requesting arbitration must designate the name of an arbitrator, and the other party must
then designate the name of an arbitrator. The two designees must select a qualified arbitrator
who will be designated the sole arbitrator of the dispute. The initial costs of the arbitration shall
be advanced, without prejudice, by the party demanding arbitration, with a final determination as
to the apportionment of arbitration fees and costs to be decided by the arbitrator. The award of
the arbitrator will be binding and conclusive on the parties, and a judgment setting forth the
arbitration award may be entered in any court of competent jurisdiction. The Firm and Client
agree that the arbitration shall be conducted pursuant to the Texas Arbitration Act.
There are advantages to arbitration such as privacy, promptness of decision and
protection of privileged communications. There are disadvantages as well such as the waiver of
trial by jury and the right of appeal, limited discovery rights and the inability to join parties who
44
are not signatories to this agreement. The provision of this section are not in any way intended
to prospectively limit the Firm’s potential liability to you, if any, but are only intended to specify
the forum and/or manner in which redress of any such claims will be resolved. PRIOR TO
EXECUTING THIS FEE AGREEMENT, YOU MAY WISH TO CONSULT WITH
INDEPENDENT COUNSEL TO SEEK ADVICE REGARDING THIS FEE AGREEMENT, IN
PARTICULAR THE OBLIGATION TO SUBMIT TO BINDING ARBITRATION ANY
DISPUTES WHICH MAY ARISE BETWEEN US. YOU ACKNOWLEDGE THAT WE
HAVE ADVISED YOU TO REVIEW THIS FEE AGREEMENT AND THIS ARBITRATION
AGREEMENT WITH INDEPENDENT COUNSEL OF YOUR OWN CHOOSING.
BY SIGNING THE FEE AGREEMENT, YOU ARE AGREEING TO HAVE ANY
ISSUE ARISING OUT OF OUR ATTORNEY/CLIENT RELATIONSHIP AT ANY TIME
(EXCEPT ATTORNEY DISCIPLINARY MATTERS), INCLUDING BUT NOT LIMITED TO
FEES, CHARGES, AND/OR THE NATURE AND QUALITY OF LEGAL SERVICES
(INCLUDING BUT NOT LIMITED TO CLAIMS OF PROFESSIONAL NEGLIGENCE,
MALPRACTICE, OR BREACH OF FIDUCIARY OR ETHICAL DUTIES) DECIDED BY A
NEUTRAL ARBITRATOR AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR
COURT TRIAL.
____________
XIV. FILE RETURN AND DESTRUCTION: At the conclusion of Client’s case,
Client acknowledges that Client may request any original documents previously provided to the
Firm, and any documents that the Firm has obtained on behalf of Client and all finished work,
such as briefs or material for submission to the Court not previously provided to Client. Client is
solely responsible for payment of all copy and postage expenses incurred in fulfilling such
45
request. The Firm will retain your file for sixty (60) months after the completion of this
representation, as evidenced by the execution of a settlement agreement, the signing of a Court
Order or judgment, or otherwise, if the Firm has received no written request from Client within
sixty (60) months of the completion of this representation, the Firm will be free to dispose of all
documents in Client’s file. The Firm shall not be required to give Client any additional notice
that Client’s file or files may be destroyed if not claimed within the time set forth above. Any
notices provided, at the sole option and discretion of the Firm, shall be sufficient if mailed to
Client at the last address provided to the Firm, regular first class mail with sufficient postage
affixed. Please keep us posted as to your address during this sixty (60) month period. FILES
ARE DESTROYED SIXTY (60) MONTHS AFTER THE COMPLETION OF THIS
REPRESENTATION, WITHOUT ANY FURTHER NOTICE, SO IF YOU WANT YOUR
FILE, OR ANYTHING OUT OF YOUR FILE, YOU SHOULD OBTAIN IT PROMPTLY
UPON THE COMPLETION OF THIS REPRESENTATION.
XV. SETTING DATE: The Client understands that the Firm makes no representations
that, once a setting date has been obtained, the case, hearing, or matter will be heard on that day.
Due to the crowded litigation dockets, actually having a matter heard in court, even if a setting
date has been previously obtained, is dependent upon factors beyond the control of the Firm.
XVI. TERMINATION OF EMPLOYMENT BY THE CLIENT: In the event of a
bona fide reconciliation of, or resolution by, the parties of any matter encompassed by or made
the basis of this document or in the event of the death or disappearance of the Client's spouse or
any other necessary party during the pendency of said matters, the Client agrees to pay to the
VAUGHT LAW FIRM, P.C., the total amount of the fees for services rendered on the fee basis
set forth above, together with all expenses and/or costs incurred and/or paid on the Client's
behalf and still outstanding, said fees to be paid prior to or contemporaneously with signing or
46
filing of the instruments necessary to terminate any action taken by the Firm. In the event of the
death of the Client during the pendency of any matter made the basis of this contract of
employment, this agreement, with respect to payment of attorneys' fees for services rendered
based upon the reasonable fee standard as set forth above, shall be binding upon the heirs of the
Client and shall constitute a valid and binding obligation of the estate of the Client.
In the event the Client desires to dismiss the Firm and retain other counsel to represent
the Client's interest in any matter encompassed by, or made the basis of, this document, after the
date of the signing of this contract, IT IS AGREED AND UNDERSTOOD THAT THE TERMS
OF THIS CONTRACT AS PERTAINING TO THE FEE OR FEES FOR SERVICES
RENDERED, UP TO AND INCLUDING SUCH DATE OF DISMISSAL, TO BE PAID TO
THE FIRM SHALL REMAIN IN FULL FORCE AND EFFECT. If permission for withdrawal
from employment is required by the rule of the Court, the Firm shall withdraw upon permission
of said Court. The balance of the Client’s retainer, if any, shall be returned to the Client after the
Court grants the Firm permission to withdraw as Client’s attorney of record.
XVII. WITHDRAWAL FROM EMPLOYMENT BY THE FIRM: The Firm may
withdraw from the Client's representation in this matter at any time if the Client:
(1)
Insists upon presenting a claim or defense that is not warranted under
existing law and cannot be supported by good faith argument for an
extension, modification, or reversal of existing law;
(2)
Personally seeks to pursue an illegal course of conduct;
(3)
Insists that the Firm pursue a course of conduct that is illegal or that is
prohibited under the disciplinary rules;
(4)
By other conduct render it unreasonably difficult for the Firm to carry out
its employment;
(5)
Insists that the Firm engage in conduct that is contrary to the judgment and
advice of the attorneys but not prohibited under the disciplinary rules;
47
(6)
Deliberately disregard an agreement or obligation to the Firm as to
expenses or fees for services rendered; or
(7)
Fails to timely replenish the Initial Retainer, to timely pay the trial
retainer, or to timely replenish the trial retainer on the Friday prior to the
trial date.
As a condition precedent to acceptance of employment by the Firm, the Client agrees to
cooperate and comply fully with all reasonable requests by the Firm on any matter encompassed
by, or made the basis of, this document, including prompt payment of fees and expenses upon
the occurrence of any of the events set out in this document.
In the event of the withdrawal from employment, the Firm will take reasonable steps to
avoid foreseeable prejudice to the rights of the Client, including giving due notice to the Client,
allowing time for employment of other counsel, delivering to the Client all papers and property
to which the Client is entitled, and complying with the applicable laws and rules.
The Firm shall withdraw if discharged by the Client.
Such discharge shall be
communicated in writing to the Firm. If permission for withdrawal from employment is required
by the rule of the Court, the Firm shall withdraw upon permission of said Court. The balance of
the Client’s retainer, if any, shall be returned to the Client after the Court grants the Firm
permission to withdraw as Client’s attorney of record. Please note that if you have retained this
firm to represent you in a collaborative family law matter, then the provisions related to the Firm
withdrawing from representing the Client in this matter set forth in the Addendum to this
Agreement apply.
XVIII. REPORTING OF CHILD ABUSE OR NEGLECT: The Client is aware and
understand that the attorneys of the Firm are required by Statute of law, currently in effect, to
report to the authorities any person whom the attorneys have cause to believe has adversely
affected, by abuse or neglect, a child’s physical or mental health or welfare. The Statute does not
48
make an exception to this duty to report child abuse or neglect for an attorney’s client. In the
event that attorneys are required to report child abuse or neglect by the Client, then such a report
shall also constitute good cause for the Firm to withdraw from the Client’s representation.
XIX.
APPOINTMENTS ARE NECESSARY: Because of the nature of the Firm’s
legal work, the attorneys and paralegals are unable to accommodate “drop by” meetings with the
Client. The Firm wants to be sure that the Client receives the time and attention necessary for
the Client’s case to be prepared, and ensures that applicable deadlines are met in a timely
fashion. This factor of the Firm’s representation is equally important for all of the Firm’s clients.
Therefore, the Client must telephone and schedule an advance appointment prior to meeting with
the attorneys or paralegals. If the Client is unable to keep the appointment or to appear at the
appointed time, the Client must give at least 24 hours advance notice of the cancellation.
Repeated failures to keep appointments shall be considered just cause for the Firm to withdraw
from its representation of the Client. Likewise, failure to timely appear for the appointment may
result in the Client being unable to meet with the attorney or paralegal. The attorneys and
paralegals will also make every effort to be available and on time for the scheduled appointment
and will only reschedule appointments when an unavoidable conflict, such as a court appearance,
arises.
XX.
ENTIRE AGREEMENT OF PARTIES: This contract embodies the entire
agreement of the parties hereto with respect to the matters herein contained, and it is agreed that
the terms and conditions and stipulations hereof shall not be modified or revoked unless by
written agreement signed by both parties and attached hereto and made a part hereof.
FURTHER, THE CLIENT ACKNOWLEDGES THAT, IN ADDITION TO HAVING READ
THE AGREEMENT IN ITS ENTIRETY, THE UNDERSIGNED ATTORNEY HAS
ANSWERED ANY QUESTIONS CONCERNING THE AGREEMENT RAISED BY THE
49
CLIENT, AND THE CLIENT UNDERSTANDS THE AGREEMENT AND CONSIDERS IT
TO BE FAIR AND REASONABLE.
XXI. STATEMENT OF CLIENT: I authorize the Firm to credit my Trust Account
against the amount I owe the Firm for services rendered in accordance with the terms, set forth in
Parts I and II above, which were provided and not otherwise paid for, before this contract was
signed by both parties below. If I have given the Firm a credit card for payment of an Initial
Retainer, for replenishment of an Initial Retainer, for payment of a Trial Retainer, for
replenishment of a Trial Retainer, or for payment of a balance due, I authorize the Firm to charge
my credit card for the amount I owe the Firm for services rendered in accordance with the terms,
set forth in Parts I and II above.
XXII. PLACE OF PERFORMANCE: Any legal action between the Client and the
Firm arising out of this document shall be filed in Travis County, Texas, unless otherwise
provided for by the law of the State of Texas. All payments to Firm contemplated herein are
payable at 5929 Balcones Drive, Suite 201, Austin, Travis County, Texas 78731.
Executed on this _____day of ______________, 2015.
_______________________________________
VAUGHT LAW FIRM, P.C.
5929 Balcones Drive, Suite 201
Austin, Texas 78731
(512) 342-9980
James A. Vaught, President
State Bar No. 20526300
jimmy@vaughtlawfirm.com
Leigh de la Reza, Partner
leigh@vaughtlawfirm.com
Lisa L. Stewart, Associate
lisa@vaughtlawfirm.com
50
__________________________
CLIENT NAME
OPTIONAL CREDIT CARD PAYMENT AGREEMENT
__________ If initialed, I, CLIENT NAME, hereby authorize my outstanding bill to be paid in
full (including replenishments) by the following credit card account unless I instruct the Firm
otherwise in writing, which includes e-mail or facsimile transmission. We will always confirm
in advance of charging a credit card.
Please complete the necessary information below:
Credit Card:
VISA MASTERCARD AMEX DISCOVER (circle one)
Card account number:
_______________________________
Expiration Date:
_______________________________
Security Code*
_______________________________
Name as it appears on card:
_______________________________
Billing Address:
_______________________________
City, State and zip code:
_______________________________
Email address for receipt:
_______________________________
________________________________
Authorized Signature
_________________
Date
SPECIAL INSTRUCTIONS:
______________________________________________________________________________
______________________________________________________________________________
*Security Code is 4 digits on the front of the card for AMEX
*Security Code is 3 digits on the back of the card on the signature line for MC/VISA
51
APPENDIX C
PRIVACY POLICY AS TO SOCIAL SECURITY NUMBERS AND
OTHER PRIVATE INFORMATION
•
•
•
•
•
SOCIAL SECURITY NUMBERS AND DRIVER’S LICENSE
NUMBERS AS NEEDED AND AS REQUIRED BY LAW.
THESE PRIVATE NUMBERS ARE USED TO IDENTIFY PARTIES
WHETHER FOR INITIAL SERVICE OF COURT DOCUMENTS,
FOR CERTAIN COURT ORDERS, IN REQUIRED REPORTS FILED
WITH THE STATE OF TEXAS, OR FOR OTHER REQUIRED
PURPOSES.
THESE PRIVATE NUMBERS RECEIVED FROM A CLIENT ARE
CONFIDENTIAL, AND ARE NOT RELEASED FROM THE FIRM
UNLESS AUTHORIZED BY THE CLIENT OR REQUIRED BY LAW
THE EMPLOYEES OF THE FIRM HAVE ACCESS TO THIS
PERSONAL INFORMATION.
EVERY STEP IS TAKEN TO PROTECT YOUR PRIVACY. THIS
INFORMATION IS KEPT SECURE WITHIN THE OFFICE OF THE
FIRM IN FILE FOLDERS, FILE DRAWERS, AND COMPUTERS,
UNTIL SUCH TIME THAT THE FILE INFORMATION IS RETIRED
AND THE FILE REMOVED TO . STORAGE IN COMPUTER FILES OR
A LOCKED, OFF-SITE STORAGE FACILITY. THE CLIENT
INFORMATION WILL
EVENTUALLY BE SHREDDED OR OTHERWISE DELETED.
I ACKNOWLEDGE THAT I HAVE READ THE ABOVE PRIVACY POLICY AND
AGREE TO IT.
CLIENT SIGNATURE___________________________ DATE ______________________
52
7
Exhibit “5”
FEE AGREEMENT OF KOONS FULLER
April 28, 2015
Dear :
You have requested our Firm to act as your attorneys. We agree to represent you under
the terms set forth in this letter. Please sign this letter and return it to the Firm, together
with the Retainer. The Firm may, but shall have no obligation to, represent you until the
Firm has received a signed copy of this letter and you have paid the Firm's Retainer.
The Firm agrees to represent you in connection with a x matter. If you want the Firm to
represent you on any other case, you must make a separate agreement with the Firm.
We promise to provide you with legal services but make no representations, promises or
guarantees as to the outcome of your case.
The Firm will keep you informed as to the progress of your case and will forward you
copies of all significant correspondence, pleadings and other documents.
If you have a
question about your case, feel free to call the attorney responsible for your case.
You agree to pay the Firm a Retainer of $__________.
The Retainer is paid to the
Firm to secure its services, to compensate the Firm for assuming responsibility for your
case and to insure the Firm's availability to represent you.
Should you so choose,
Retainers may be paid with Visa, Discover, MasterCard or American Express.
If the amount of your Retainer should fall below forty percent of its original amount at any
time, you agree to pay an additional retainer in an amount sufficient to replenish the
Retainer to its original amount.
Any unused retainer will be refunded to you upon the
53
conclusion of your case.
In the event your matter proceeds to mediation or trial, an
additional retainer to cover those proceedings may be required.
You agree to pay legal fees based upon the hourly rates of the attorneys and paralegals
who have rendered legal services. The hourly rates will be those in effect at the time the
services are rendered. The hourly rate of each of the Firm's attorneys and paralegals as
of the date of this agreement is as follows:
MINIMUM HOURLY BILLING RATES
ATTORNEYS
Ike Vanden Eykel
$700.00
Rick Robertson
$495.00
William C. Koons
$450.00
Kenneth D. Fuller
$450.00
Kevin R. Fuller
$450.00
Michael R. DeBruin
$450.00
Karen B. Turner
$450.00
Heather L. King
$425.00
Charla Bradshaw
$425.00
Sharla J. Fuller
$400.00
Aubrey M. Connatser
$400.00
Julie P. Crawford
$375.00
Liz L. Porter
$350.00
Jeff V. Domen
$350.00
Ashley W. McDowell
$300.00
Shannon S. Pritchard
$300.00
Sean Patrick Abeyta
$300.00
Kristy Piazza
$300.00
54
Julia A. Kerestine
$275.00
Rachel H. Moore
$250.00
Clint C. Brown
$250.00
Michael D. Wysocki
$250.00
Eric A. Navarrette
$250.00
Rebecca A. Tillery
$250.00
Michael Tresidder
$250.00
Rebecca L. Armstrong
$225.00
Emily A. Miskel
$225.00
Jessica Hall Janicek
$200.00
Amber A. Rechner
$175.00
Colin H. Newberry
$175.00
ALL LAW CLERKS BILLED AT $125.00 PER HOUR.
ALL PARALEGALS BILLED AT $125.00 PER HOUR.
The time expended on your matter will be computed on the basis of quarter-hour
increments. If less than all of any quarter-hour increment is expended on your matter, you
will be charged for the full quarter-hour increment.
For example, if an attorney should
make a twenty-five minute telephone call on your case, you will be charged for two
quarter-hour increments, even though only a fraction of the second increment was used.
Costs of court are normally assessed against one or more parties to a lawsuit, and in
many cases attorney's fees may be assessed.
If court costs or attorney's fees are
assessed against you, you will be solely responsible for their payment.
Conversely, if
such costs or fees are awarded to you, amounts received pursuant to a court order will be
credited to your account, subject to any amendment, alteration or reversal of the order.
The award of costs or fees does not in any way affect your responsibility to the Firm to
pay for attorney's fees, costs and expenses incurred on your behalf.
55
It is impossible to anticipate in advance the amount of time that will be required to work
on your case. You agree to pay for legal services based upon the time expended on your
case, which may include, but is not limited to: conferences, legal research, analysis,
drafting and preparation of documents, telephone conferences, court appearances,
investigative work and travel.
The Firm may incur costs and expenses in connection with your case, including, but not
limited to, photocopying, postage, delivery charges, long distance telephone charges, travel
expenses, filing fees, deposition costs, fees for investigative work and expert witness fees.
You agree to reimburse the Firm for such expenses incurred in connection with your case,
or, at the Firm's option, directly pay such expenses.
You will be billed monthly, or at the Firm's option, less frequently, for the time expended
and expenses incurred.
Invoices are payable within ten days of receipt unless other arrangements are made in
advance.
The Firm reserves the right to terminate this agreement for any of the following reasons:
1.
You fail to pay fees, costs, or expenses, as provided by this Agreement;
2.
You fail to cooperate and comply fully with all reasonable requests of the
Firm in reference to your case;
3.
You use the Firm's services to perpetrate a crime or fraud, you persist in a
course of action that we believe is criminal or fraudulent, or you insist on
pursuing an objective that the Firm considers repugnant or imprudent or with
which we fundamentally disagree;
56
4.
You engage in conduct which renders it unreasonably difficult for the Firm to
carry out the purposes of its employment; or
5.
You fail to furnish any required additional Retainer within ten (10) days of
request by the Firm.
[ ] Yes [ ] No
Payment by third party.
Client understands that the fee is being paid by a third party. Payment by third party does
not create an attorney-client relationship with the payor and the attorney, and the attorney
will not discuss the case with the payor unless authorized by Client. Client further
understands and agrees that representation is contingent upon payment of all outstanding
fees, even if initially assumed by a third party payor. Any portion of any retainer or cost
payment refunded by Attorney, shall be refunded to third party payor, unless third party
payor expressly advises Attorney otherwise.
Please read this letter carefully. It sets forth all the terms of our agreement. If it correctly
reflects our understanding, date and countersign it in the place provided for your
acceptance and return the letter to the Firm. You should also retain a copy for your files
so that you will have a memorandum of our agreement.
Very truly yours,
KOONSFULLER
A Professional Corporation
By:
AGREED AND ACCEPTED, this
day of
57
, 2011.
Exhibit “6
FEE AGREEMENT OF JENKINS & KAMIN, LLP
CONTRACT AND AGREEMENT
The undersigned,
, hereinafter sometimes referred to as "Client" and the
undersigned, JENKINS & KAMIN, LLP, sometimes hereinafter referred to as "Firm",
hereby enter into the following Contract and Agreement regarding Firm's representation of
Client in a single family law related matter filed or to be filed in a District Court in Texas.
Client understands the following conditions regarding employment of Firm in this
case:
1.
The date of actual employment of Firm is ______________________20___;
2.
NO REPRESENTATIONS HAVE BEEN MADE BY FIRM AS TO THE
ULTIMATE SUCCESS OF THE CASE OR FAVORABLE OUTCOME OF
THE CLAIM OR CLAIMS WHICH MAY BE ADVANCED RELATING
TO ANY LEGAL MATTER. The only material representations made by
Firm to Client are that each firm member will exert his best professional
efforts in his representations of Client. There have been no guarantees made by
the Firm that there will be a recovery of fees, costs or expenses incurred by
client in the prosecution or defense of claims in this cause of action;
3.
CLIENT EXPRESSLY ACKNOWLEDGES THAT ALL STATEMENTS OF
THE FIRM REGARDING THE SUCCESSFUL DETERMINATION OF
ANY CLAIM OR THE DEFENSE OF ANY CLAIM IS AN OPINION
ONLY AND NOT A REPRESENTATION WARRANTY OR
GUARANTEE.
4.
Client fully understands that in the event sums are recovered and actually
received from the opposing party, they shall first be credited to unpaid fees,
costs or expenses with any remaining fees paid to client.
5.
Client fully understands that this instrument represents a contract for
services rendered and to be rendered by Firm and that such services are
conditioned upon the terms of this agreement, including but not limited to
payment of attorney fees to Firm in accordance with the fee schedule and other
fee terms as set forth herein; CLIENT THEREFORE AGREES THAT THE
FIRM AND/OR THE ATTORNEY HANDLING THE CASE MAY
WITHDRAW IN THE EVENT CLIENT IS UNABLE OR CHOOSES NOT
58
TO PAY THE FEES REQUIRED BY THIS AGREEMENT.
6.
Client fully understands that Firm accepts no responsibility or liability of
any nature for the acts or failure to act of any prior counsel engaged by client
nor for any matters related to this cause which precede the date of this
Agreement, including the acts or decisions of client. Client fully understands
that the Client's rights, the rights of children, and possible property division
may have been seriously prejudiced;
7.
Client fully understands that there is a Trust Deposit of $______, which is
to be paid simultaneously with the execution of the contract. Any fees
deposited in trust and not expended will be refunded to client at the close of
the case, less all fees and expenses owing the firm. Client understands that
the fees in this matter may well exceed the trust deposit amount. The hourly
fees set forth in this contract will be credited against the trust deposit. After
credits have been made against the trust deposit such that the balance
remaining on the trust deposit at any time is below $2,500.00, you will be
notified and will be required to make an additional trust deposit of no less
than one-half the amount of the original trust deposit. This additional trust
deposit must be made within 15 days of the request unless your case is in
closing status or the attorney in charge of your case waives this requirement.
8.
Client fully understands that the failure to make the additional trust
deposits may be considered a breach of this Agreement where upon CLIENT
AGREES THAT THE FIRM MAY WITHDRAW FROM FURTHER
REPRESENTATION;
9.
Client fully understands that no less than the 1st day of the month prior to
the month in which a trial of this cause of action is set, unless other
arrangements are specifically made in writing, Firm requires any past due or
billed and unpaid fees and expenses to be brought current and a trial deposit to
be made in an amount not less than the amount determined by multiplying 8
hours per day by the attorney's hourly rate as provided herein for the number
of trial days estimated by the Firm;
10.
WE DO NOT REPRESENT CLIENTS ON A FIXED-FEE BASIS. Any
figures quoted as to the total cost of our services are merely estimates, based
on stated hypothetical occurrences and they cannot be relied upon as an
accurate estimate. Your adversary, the opposing attorney, or others may
engage in activities requiring us to expend additional time not originally
contemplated;
11.
Client fully understands that Firm may withdraw from representation in the
event client:
a.
Insists upon presenting a claim or defense not warranted under existing law
and which cannot be supported by a good faith argument for extension or
59
b.
reversal of such law.
Personally seeks to pursue an illegal course of conduct.
c.
Requests that the Firm pursue a course of conduct which is illegal or
prohibited under the disciplinary rules.
d.
By other conduct renders it unreasonably difficult for the Firm to carry out
employment.
e.
Insists upon the Firm engaging in conduct which is contrary to the judgment
or advice of the attorneys.
f.
Disregards an agreement with firm as to fees or services, costs or expenses
rendered.
CAUTIONS
1.
THIS CONTRACT AND AGREEMENT DOES NOT INCLUDE
PRESENTATION OF THIS CASE TO ANY APPELLATE COURT, and in
the event an appeal is necessary, client and attorney will consider the appeal
as a separate and distinct cause of action requiring new fee arrangements.
2.
WE ARE NOT BEING RETAINED TO VALUE THE MARITAL ASSETS
NOR DO WE CLAIM TO HAVE EXPERTISE IN THIS AREA. You must
determine, based upon the information obtained through the proceeding,
which assets you would like to receive, the value of those assets, and the
economic ramifications concerning all property. We may advise you to retain
appropriate experts, such as accountants, financial advisors, or real estate or
business appraisers, to assist in this regard. We do not automatically search
titles, determine the validity of income and expense figures supplied by your
spouse or other opposing party, or attempt to verify other underlying data
provided as part of the dissolution proceeding. If there are questions in your
mind concerning any of these issues, you should discuss them with us and
authorize us to retain appropriate experts to provide assistance on your
behalf. The fees and costs for such experts are your responsibility and ARE
NOT PAID FROM TRUST DEPOSITS MADE WITH FIRM.
3.
OUR REPRESENTATION DOES NOT INCLUDE RENDERING TAX
ADVICE TO YOU. You must seek such advice from your accountant or
other financial advisor. We may, however, provide you with a tax analysis
fees which may be tax deductible.
4.
If retirement benefits are being divided on divorce in your case, a separate
order must be submitted to the Court. For most retirement benefits, this
order is known as a Qualified Domestic Relations Order (QDRO).
Preparing and monitoring the qualification of such an order is a complex
60
procedure and, in most cases, it is more cost effective to engage the services
of an expert in the area of preparing and qualifying QDRO' s rather than
utilize the services of the firm. The client authorizes the firm to retain the
services of an expert in this field for the limited purpose of preparing and
qualifying QDRO's, provided such services do not exceed $750.00. These
funds will be paid from existing trust funds, if any, and if no such funds exist,
then payment shall be made by client directly to such expert upon request of
the firm.
5.
At the conclusion of the handling of the matter by the Firm, client shall be
responsible for picking up the file from Firm's offices within thirty (30)
days of written notice by filin to client.
6.
In the event of withdrawal, termination or modification of
employment, IT ISAGREED AND UNDERSTOOD THAT THE TERMS OF
THIS CONTRACT AS PERTAIN TO FEES, COSTS AND/OR EXPENSES FOR
SERVICES RENDERED, UP TO AND INCLUDING SUCH DATE OF
TERMINATION, WITHDRAWAL OR MODIFICATION OF EMPLOYMENT,
ARE TO BE PAID TO THE FIRM AND SHALL REMAIN IN FULL FORCE
AND EFFECT. In the event the Firm is compelled to intervene in a pending lawsuit
or initiate any subsequent lawsuit in order to recover any and all unpaid fees, costs,
and/or expenses for services rendered by the Firm any and all attorney's fees, costs
and/or expenses accruing to the Firm in accordance with the terms set forth in this
contract for employment for computation of fees and expense and accruing in favor of
the attorney or attorneys employed by the Firm, including an attorney of the Jenkins
& Kamin Firm, to recover the fees, costs and/or expenses due to the Firm, pursuant to
the terms of this contract and additionally, the client agrees to pay any and all court
costs and expenses connected with the pending lawsuit or any subsequent lawsuit as
hereinabove described.
PEE SCHEDULE
Firm and Client understand that the following fee schedule shall apply as a condition of
employment and that Client accepts full responsibility for the payment of all balances due for legal
services as follows:
1.
All trial and non-trial time expended in connection with this cause shall be charged at
the rate as set forth below.
Non-trial charges include, but are not limited to, telephone conferences, interviews
with Client or other parties in connection with this cause, legal research time,
including charges incurred for electronic research services, drafting of legal
instruments, preparation for Court, review of correspondence and documents, and
miscellaneous time spent in office practice and/or legal investigation.
61
2.
Trial time includes time in Court Room attendance, whether in actual trial of this
cause or at ancillary hearings or motions.
3.
All case expenses, including subpoena costs, filing costs, deposition costs,
investigation costs, expert's charges, delivery service costs, xerox and certified copy
costs, faxing, electronic or computer research, computer disk rental and all other
miscellaneous actual expenses incurred in connection with this cause are due and
payable by Client, as incurred, and will be paid from trust account deposit so long as
such is available. A one time charge of $25.00 will be billed for set up of your client
file.
4.
All time will be recorded in units of 1/4 hour (15 minutes) even though the time
spent may be less than 1/4 hour.
5.
All accounts are due and payable in Harris County, Texas. Unpaid fee balances
owed to the Firm as well as expenses advanced on behalf of the client shall bear
interest at the rate of 8% per annum commencing thirty (30) days after the date as
shown on the monthly statement. Such interest shall appear on each statement.
BILLING RATES
Firm and Client understand that, from time to time, during the pendency of this cause and the
Firm/Client relationship, that Firm may deem it necessary to use the services of legal assistants, paralegal
employees or other associates, and Client agrees that use of such is acceptable to *HIM/HER and
that all work performed by assistants selected by Firm shall be fully supervised by the attorney in
charge of the case and that the periodic time spent, if any, by lawyers and legal assistants shall be
billed the following rates:
JOAN F. JENKINS
LYNN KAMIN
SHERRI A. EVANS
JOHN F. "BO" NICHOLS, JR.
LAURA D. DALE
DEBORAH L. WRIGHT
62
EILEEN M. GAFFNEY
NICOLE VOYLES
ELVA C. GODWIN
SHARON D. CAMMACK
SHANNON T. MOORE
DENISE GUAJARDO-KHOURY
MICHELLE ADAMS THUILLIER
AARON M. REIMER
MARJORIE A.MAXWELL
SUSAN E. OEHL
JACQUELINE R. BERTRAND
ASHLEY V. TOMLINSON
Associated Lawyers, if any
BRENDA K. SATTERLEE
Board Certified Senior Paralegal
DIANE M. THOMAS
PAULINA NGUYEN
LISA ENNIS
Certified Paralegal, NALA
NAN GIBSON
Senior Paralegal
CATHY L. SIMMONS
Senior Paralegal
ELIZABETH H. BATES
Certified Paralegal, NALA
SHERMIE HEBERT
Senior Paralegal
SHANNON WILLIAMS
Paralegal
63
JAMIE MONTGOMERY
Paralegal
Legal Assistants
Paralegal employees
/law clerks
Our billing rates are subject to change in the future. If an hourly rate changes, you will be
notified approximately 30 days before the change takes effect.
CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT SOME OF THE FEES
CHARGED BY JENKINS & KAMIN, LLP ARE ABOVE AVERAGE, BUT CLIENT
STATES THAT A CAREFUL DECISION HAS BEEN MADE BY CLIENT AND CLIENT
CONSIDERS SUCH PEES TO BE REASONABLE IN LIGHT OF THE REPUTATION
AND SKILL OF MANY MEMBERS OF THE FIRM.
THIS CONTRACT IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES
HERETO WITH RESPECT TO ALL MATTERS HEREIN CONTAINED AND
THE1'ERMS, CONDITIONS AND STIPULATIONS SHALL NOT BE MODIFIED,
EXPANDED NOR REVOKED UNLESS BY WRITTEN AGREEMENT SIGNED BY
BOTH PARTIES AND ATTACHED HERETO AND MADE A PART HEREOF.
FURTHER, THE CLIENT ACKNOWLEDGES THAT IN ADDITION TO HAVING
READ THIS AGREEMENT IN ITS ENTIRETY, ANY QUESTIONS RAISED BY CLIENT
HAVE BEEN ANSWERED AND THE CLIENT UNDERSTANDS THE AGREEMENT
AND CONSIDERS IT TO BE FAIR AND REASONABLE.
PRIVACY POLICY
As the State of Texas requires reporting of your social security number in any divorce in
which children are involved, we request your social security number at the time that you retain the
firm. The firm is careful to insure that only members of our staff have access to your social security
number and that this information is shared with no one other than our immediate staff and the court in
which your final papers must be filed. At the conclusion of your case, your file, containing your
social security number, is sent to a secured storage unit maintained and paid for by the firm. At no
time will anyone other than members of this firm have access to your personal information.
DISPUTE RESOLUTION BY BINDING ARBITRATION
AT EITHER PARTY'S REQUEST, ANY AND ALL DISPUTES ARISING UNDER OR
RELATING TO THIS CONTRACT OR THE ENGAGEMENT AND LEGAL
SERVICES TO BE RENDERED, INCLUDING BUT NOT LIMITED TO FEE
DISPUTES,
LEGAL
MALPRACTICE
CLAIMS
64
AND
CLAIMS
OF
FRAUD,
CONSTRUCTIVE FRAUD, BREACH OF FIDUCIARY DUTIES, BREACH OF
CONTRACT OR ANY OTHERS, WILL BE SUBMITTED TO THE ARBITRATING
BODY FOR BINDING ARBITRATION AND PROMPT RESOLUTION. BOTH
ATTORNEY AND CLIENT AGREE TO BE BOUND BY THIS PROVISION AND
THE RESULTS OF SUCH ARBITRATION. CLIENT
UNDERSTANDS
AND
AGREES THAT IT HAS THE RIGHT TO CONSULT INDEPENDENT COUNSEL
REGARDING THIS PROVISION AND THAT IF ACCEPTED, THIS PROVISION
WILL ELIMINATE CLIENT'S RIGHT TO A JURY TRIAL IN ANY AND ALL
DISPUTES AGAINST ATTORNEY.
REQUIRED NOTICE TO CLIENTS
The State Bar of Texas investigates and prosecutes professional misconduct
committed by Texas Attorneys.
Although not every complaint against or dispute with a . lawyer involves
professional misconduct, the State Bar Office of General Counsel will provide you with
information about how to file a complaint.
For more information, please call 1/800/932/1900. This is a toll-free phone call.
A copy of the Texas Lawyer's Creed is attached hereto as Exhibit "A" as required
by the State Bar of Texas.
SIGNED this _______________ day of __________________________ , 20 __
________________________________
*
JENKINS & KAMIN, LLP
By;______________________________
65
Exhibit “7”
GORANSONBAIN
April 28, 2015
PERSONAL & CONFIDENTIAL
NAME
Re:
In the Matter of the Marriage of NAME
Dear NAME:
This letter confirms the agreement concerning Goranson Bain, PLLC's representation of
you in a family law matter. Goranson Bain, PLLC=s and your understanding and
agreement are as follows:
1.
Goranson Bain, PLLC will undertake to represent you in the matter styled “In the
Matter of the Marriage of NAME” (hereinafter sometimes referred to as the "Family Law
Matter"). The representation will include advising, counseling, negotiating, handling,
and/or defending you to final settlement or final adjudication of the Family Law Matter
at the trial court level or until the time of Goranson Bain, PLLC's withdrawal as your
attorneys in the Family Law Matter. The representation does not include an appeal or
post-judgment enforcement of the Family Law Matter, filed by you or the opposing
party. The scope of Goranson Bain, PLLC's engagement is limited to the extent specified
above. You may have other causes of action against the opposing party or the opposing
party may have other causes of action against you. These causes of action may include,
but are not limited to, intentional torts (examples include assault and battery or false
imprisonment), or negligence (for example an automobile accident). Such separate
causes of action are NOT within the scope of Goranson Bain, PLLC's engagement. If you
believe you have a separate cause of action, you should immediately discuss it with an
attorney that handles such matters.
2.
You agree that you and any other person affiliated with you will promptly
furnish Goranson Bain, PLLC with all information that is deemed by Goranson Bain,
PLLC necessary to perform the above-described services, provided the information is in
your possession or subject to your control.
3.
There can be no assurances and Goranson Bain, PLLC makes no representations,
guarantees, or warranties as to a particular result from Goranson Bain, PLLC's services,
the response and timeliness of action by any court, success in the settlement and/or
trial of the matter, or that you will obtain reimbursement of any of the fees and/or
expenses incurred by you in the prosecution or defense of the Family Law Matter. You
66
further expressly acknowledge by signing this agreement that all statements of law
made by Goranson Bain, PLLC are statements of opinion only. You further understand
that the accuracy and completeness of Goranson Bain, PLLC's preparation of the Family
Law Matter is dependent upon your alertness to all of the information, pleadings,
letters, and/or other documents that Goranson Bain, PLLC will provide to you and/or
that you have in your possession. To that end, you agree to review all of the
information, pleadings, letters, and/or other documents and to call any deficiencies that
you notice therein to Goranson Bain, PLLC's attention promptly for appropriate action.
You also acknowledge that this responsibility continues during the pendency of the
Family Law Matter. Goranson Bain, PLLC's services henceforth are intended to assist
you in meeting the legal obligations imposed upon you by the litigation of the Family
Law Matter, but your diligence in reviewing all of the information, pleadings, letters,
and/or other documents provided to you and/or that are in your possession is equally
important to the outcome of this Family Law Matter.
4.
Before Goranson Bain, PLLC can commence any activity with respect to this
Family Law Matter, Goranson Bain, PLLC must receive your initial retainer in the sum of
$_______________________. Goranson Bain, PLLC will utilize the services of such other
attorneys, legal assistants and/or law clerks to handle aspects of the Family Law Matter
as Goranson Bain, PLLC deems appropriate in Goranson Bain, PLLC's discretion. The
current billing rate is:
$500.00 per hour for Thomas P. Goranson
$450.00 per hour for Thomas A. Greenwald
$450.00 per hour for Beth Maultsby
$450.00 per hour for Curtis W. Harrison
$450.00 per hour for Christopher M. Lake
$350.00 per hour for Aimee M. Pingenot
$300.00 per hour for Patrick Kelly
$350.00 per hour for Esther Donald
$250.00 per hour for Hayley Collins
$450.00 per hour for Angeline Bain
$450.00 per hour for Paula Larsen
$450.00 per hour for Kathryn Murphy
$450.00 per hour for Jeff Domen
$400.00 per hour for Clint Westhoff
$300.00 per hour for Lindley Bain
$350.00 per hour for Anita C. Savage
$300.00 per hour for Katie Samler
The billing rates for other attorneys that the attorneys of Goranson Bain, PLLC
may hire to assist on your case range from approximately $250.00 per hour to $500.00
per hour. Rates for legal assistants are $175.00 per hour. Law clerks’ rates range from
$145.00 per hour down to $95.00 per hour. Charles M. Wilson, III, is of counsel to
Goranson Bain, PLLC. If Mr. Wilson assists on any matter, his billing rate is $450.00.
5.
Fees are based upon time incurred in connection with this Family Law Matter.
ALL ACTIVITY WILL BE BILLED AT A MINIMUM OF .20 (TWO-TENTHS) OF AN HOUR.
TIME INCURRED AFTER THE INITIAL .20 WILL BE BILLED IN INCREMENTS OF .10
(ONE-TENTH) OF AN HOUR. YOU WILL BE BILLED FOR TIME ASSOCIATED WITH
TELEPHONE CALLS MADE TO YOU FROM GORANSON BAIN, PLLC. YOU WILL ALSO BE
BILLED FOR TIME ASSOCIATED WITH TELEPHONE CALLS MADE BY YOU TO
67
GORANSON BAIN, PLLC. Goranson Bain, PLLC will bill you monthly. If the amount of
your retainer should fall below forty percent (40%) of its original amount at any time,
unless otherwise agreed to by Thomas P. Goranson, Angeline Bain, Paula Larsen, Beth
Maultsby, Kathryn Murphy, Thomas A. Greenwald, Curtis Harrison, Jeff Domen or
Christopher M. Lake in writing, you agree to pay an additional retainer in an amount
sufficient to replenish the retainer to its original amount. The retainer will be applied
to pay the amount of each monthly statement. Any unused retainer will be refunded to
you upon the conclusion of your case. You agree to carefully read all statements for
services rendered to you by Goranson Bain, PLLC and to notify Goranson Bain, PLLC in
writing, of any claimed errors or discrepancies in billing, within 30 days of the date of
the statement. In the event you fail to provide written notice, it will be presumed that
you agree with the correctness, accuracy and fairness of the monthly statement
rendered to you. In the event that the status of your account with Goranson Bain, PLLC
is deemed by Goranson Bain, PLLC to be unsatisfactory, Goranson Bain, PLLC also
reserves the right to require, in Goranson Bain, PLLC's sole discretion, an advance
payment of fees in anticipation of incurring an extraordinary amount of time or effort,
over and above the retainer previously mentioned.
6.
Whenever it becomes apparent that anticipated attorney=s fees and expenses
will exceed the amount of the retainer on account with Goranson Bain, PLLC, Goranson
Bain, PLLC may, but is not obligated to, request that you pay an additional retainer. If
you do not pay the additional retainer, in the amount requested, Goranson Bain, PLLC
may seek to withdraw from employment.
7.
If a dispute arises under this retainer agreement, the dispute shall be submitted
to a court of competent jurisdiction in Dallas County, Texas. This provision does not
affect Goranson Bain, PLLC=s right to intervene in a pending suit for the collection of
unpaid legal fees and expenses. Goranson Bain, PLLC=s intervention in a pending suit
will not constitute an election of remedies.
8.
At the beginning of each calendar year, the hourly rate set forth above shall be
adjusted to the rates then currently in effect for any attorneys and/or legal assistants
working on your case. You will be notified of the new billing rates.
9.
Hourly fees do not include incidental expenses such as court costs, deposition
costs, duplication costs, facsimile costs, filing fees, computerized legal research expense,
travel expenses, long distance telephone expenses, mailing costs including postage in
excess of 2 ounce, expert fees, accountant fees, appraisal fees, consultant fees, other
professional fees incurred on your behalf (including specialized or local legal counsel),
messenger service, courier service, and overtime, if any (herein Aexpenses@). These
expenses will be charged to your account if paid or provided by Goranson Bain, PLLC or
you will be requested to pay for such services directly to the provider of the services.
You agree to pay all expenses advanced or provided by Goranson Bain, PLLC and to pay
expenses in advance to the extent requested by Goranson Bain, PLLC or to pay them
directly to the provider of the services as soon as you are notified of the amount of the
68
expense. Goranson Bain, PLLC is not required to advance funds on your behalf for
expenses.
10.
Your retainer is refundable and creditable. This means that the retainer will be
applied to the fee as it is earned and, if any portion of the retainer is not used, it will be
returned to you.
11.
Goranson Bain, PLLC reserves the right to immediately withdraw from
representation of you in connection with this Family Law Matter, subject to any ethical
obligations and any required court approval, in the event that (a) payment of a
statement is not received within ten (10) days after your receipt thereof; (b) you insist
upon presenting a claim or defense that is not warranted under existing law and cannot
be supported by good faith argument for an extension, modification, or reversal of
existing law; (c) you personally seek to pursue an illegal course of conduct; (d) you
personally seek to pursue a course of conduct that is prohibited under the disciplinary
rules that govern attorneys; (e) you, by other conduct, render it unreasonably difficult
for us to carry out our employment services for you; and/or (f) you insist that Goranson
Bain, PLLC engage in conduct that is contrary to Goranson Bain, PLLC's judgment and
advice but is not illegal nor prohibited under the disciplinary rules.
12.
It is not possible to determine in advance the ultimate cost of handling the
Family Law Matter for which you have requested Goranson Bain, PLLC's
representation. Family law litigation is often emotionally charged and expensive. Your
case may be more or less expensive, depending upon a number of variables over which
Goranson Bain, PLLC has no control.
13.
Goranson Bain, PLLC will attempt to consult with you on all major decisions and
to keep you informed of the status of the Family Law Matter as well as our
recommended strategies in handling the matter. You recognize that, while Goranson
Bain, PLLC is handling this matter, Goranson Bain, PLLC will also handle other matters
concurrently and, therefore, will be required to coordinate the scheduling of
proceedings in this matter with other pending matters. You should feel free to call at
any time if you have questions or wish to discuss any aspect of your case. Goranson
Bain, PLLC will attempt to return telephone calls promptly.
14.
Goranson Bain, PLLC shall, subject to court approval where required, withdraw
from representing you if you discharge Goranson Bain, PLLC. Such discharge shall be
communicated in writing to Goranson Bain, PLLC. If permission for withdrawal from
employment is required by the rules of the court, Goranson Bain, PLLC shall promptly
apply to the relevant court for permission to withdraw.
15.
In the event of dismissal, withdrawal, or termination of Goranson Bain, PLLC's
employment, IT IS AGREED AND UNDERSTOOD THAT THE TERMS OF THIS
AGREEMENT PERTAINING TO FEES, AND/OR EXPENSES FOR SERVICES RENDERED,
UP TO AND INCLUDING SUCH DATE OF DISMISSAL, TERMINATION, OR WITHDRAWAL
69
OF EMPLOYMENT, TO BE PAID TO GORANSON BAIN, PLLC, SHALL REMAIN IN FULL
FORCE AND EFFECT. In the event that Goranson Bain, PLLC is compelled to intervene
in a pending lawsuit or any subsequent lawsuit is initiated regarding fees and/or
expenses for services rendered by Goranson Bain, PLLC, you additionally agree to pay
the fees and/or expenses accruing in favor of the attorney or attorneys employed by
Goranson Bain, PLLC to recover the fees and/or expenses due pursuant to the terms of
this contract. Additionally, you agree to pay any and all court costs and expenses
connected with the pending lawsuit or any subsequent lawsuit as described above.
16.
Attorney=s fees and costs may be awarded from the marital estate either before
or after the marital estate is divided by the court. A judge has discretion to order one
party to pay part or all of the other party's fees, and the judge may do this during the
pendency or at the conclusion of the case. Sometimes the court makes no order for fees
and/or costs. Because fee and cost awards and their collection are totally
unpredictable, court orders must be considered to be merely "on account" and you are
personally liable for the payment of the total fees and expenses incurred on your behalf
by Goranson Bain, PLLC. This retainer agreement does not obligate Goranson Bain,
PLLC to seek collection of an award of attorney=s fees and expenses, nor does this
retainer agreement obligate Goranson Bain, PLLC to pursue the enforcement of an
award of attorney=s fees and expenses which are ordered to be paid by the other party.
Amounts received pursuant to court order will be credited to your account.
17.
GORANSON BAIN, PLLC DOES NOT GIVE TAX ADVICE. ANY INFORMATION
CONCERNING FEDERAL INCOME TAXES GIVEN TO YOU IS INTENDED TO CONSTITUTE
NOTHING MORE THAN A STARTING PLACE FOR DISCUSSIONS BETWEEN YOU AND
YOUR C.P.A. OR OTHER TAX ADVISOR. YOU AGREE TO REVIEW SUCH LANGUAGE
WITH A C.P.A. OR OTHER TAX ADVISOR BEFORE THE ENTRY OF ANY COURT ORDER,
AGREEMENT, OR DECREE.
18.
ANY DOCUMENTATION CONCERNING REAL ESTATE PREPARED FOR YOU IS
INTENDED TO CONSTITUTE NOTHING MORE THAN A STARTING PLACE FOR
DISCUSSIONS BETWEEN YOU, THE LENDING COMPANY (CREDITOR), AND YOUR REAL
ESTATE ATTORNEY. YOU AGREE TO REVIEW SUCH DOCUMENTATION WITH THE
LENDING COMPANY (CREDITOR) AND A REAL ESTATE ATTORNEY.
19.
During the course of the Family Law Matter you will receive copies of pleadings,
correspondence and other documents. You should retain these copies for your records.
You will also provide documents to Goranson Bain, PLLC during the course of the
Family Law Matter. Subject to the terms of any court orders and/or agreements, at the
conclusion of the representation, Goranson Bain, PLLC will return to you any original
documents you provided to the firm and any other documents that you request be
provided or returned to you. For any documents not provided or returned to you,
Goranson Bain, PLLC will determine in Goranson Bain, PLLC=s sole discretion which, if
any, documents will need to be retained by Goranson Bain, PLLC. After five years from
the conclusion of the representation by Goranson Bain, PLLC, Goranson Bain, PLLC may
70
at its option and without notice to you destroy any of the retained documents.
Documents, if any, that are retained by Goranson Bain, PLLC will either be retained
electronically or in their original form. Goranson Bain, PLLC, advises you that you
should review and maintain any documents provided to you during the course of the
Family Law Matter and/or returned to you at the conclusion of Goranson Bain, PLLC=s
representation of you, including court orders, documents originally signed by you
and/or documents that contain factual information dealing with the title, value and/or
acquisition of any specific asset.
20.
This agreement shall be governed by the laws of the state of Texas, is
performable in Dallas County, Texas, and venue for any action hereunder shall be in
Dallas, Dallas County, Texas.
21.
Goranson Bain, PLLC is committed to The Texas Lawyer=s Creed--A Mandate for
Professionalism as promulgated by the Supreme Court of Texas and the Court of
Criminal Appeals. The Texas Lawyer=s Creed sets standards of professionalism by
which we deal with our clients, other attorneys, judges, and the legal system. Copies of
The Texas Lawyer=s Creed are available from Goranson Bain, PLLC upon request.
22.
If this agreement correctly sets forth your understanding with respect to the
matters mentioned above, please execute and return one copy of this letter agreement
to Goranson Bain, PLLC. Goranson Bain, PLLC=s representation of you in this matter
commences upon receipt of this executed letter agreement from you, receipt of your
retainer in the amount of $____________________ and Goranson Bain, PLLC=s execution of
this letter agreement.
Sincerely,
Goranson Bain, PLLC
__________________________________________
By:
Thomas P. Goranson, Member
Angeline L. Bain, Member
Paula Larsen, Member
Thomas A. Greenwald, Member
Beth Maultsby, Member
Kathryn J. Murphy, Member
Curtis W. Harrison, Member
Jeff Domen, Member
Christopher M. Lake, Member
Clint Westhoff, Member
Aimee M. Pingenot, Member
P. Lindley Bain, Member
71
This agreement, executed on
, 2015, correctly sets forth my
understanding and agreement to all of the terms and conditions.
__________________________________________
NAME
72
EXHIBIT " A "
TEXAS LAWYER'S CREED
THE TEXAS LAWYER'S CREED - A MANDATE
FOR PROFESSIONALISM
I am a lawyer. I am entrusted by the People of
Texas to preserve and improve our legal system. I am
licensed by the Supreme Court of Texas. I must
therefore abide by the Texas Disciplinary Rules of
Professional Conduct, but I know that professionalism
requires more than merely avoiding the violation of
laws and rules. I am committed to this creed for no
other reason than it is right.
lawful objectives, but I will not permit that loyalty
and commitment to interfere with my duty to
provide objective and independent advice.
4.
I will advise my client that civility and
courtesy are expected and are not a sign of
weakness.
5.
I will advise my client of proper and
expected behavior.
6.
I will treat adverse parties and witnesses
with fairness and due consideration. A client has no
right to demand that I abuse anyone or indulge in
any offensive conduct.
7.
I will advise my client that we will not
pursue conduct which is intended primarily to
harass or drain the financial resources of the
opposing party.
8.
pursue
tactics which are intended primarily for delay.
9.
pursue
any course of action which is without merit.
10. I will advise my client that I reserve the
right to determine where to grant accommodations
to opposing counsel in all matters that do not
adversely affect my client's lawful objectives. A
client has no right to instruct me to refuse
reasonable requests made by other counsel.
11. I will advise my client regarding the
availability of mediation, arbitration, and other
alternative methods of resolving and settling
disputes.
I. OUR LEGAL SYSTEM
A lawyer owes to the administration of justice
personal dignity, integrity, and independence. A lawyer
should always adhere to the highest principals of
professionalism.
1. I am passionately proud of my profession.
Therefore, "My word is my bond."
2. I am responsible to assure that all persons
have access to competent representation regardless of
wealth or position in life.
3. I commit myself to an adequate and effective
pro bono program.
4. I am obligated to educate my clients, the
public, and other lawyers regarding the spirit and letter
of this Creed.
5. I will always be conscious of my duty to the
judicial system.
II. LAWYER TO CLIENT
A lawyer owes to a client allegiance, learning,
skill, and industry. A lawyer shall employ all
appropriate means to protect and advance the client's
legitimate rights, claims, and objectives. A lawyer shall
not be deterred by any real or imagined fear of judicial
disfavor or public unpopularity, nor be influenced by
mere self-interest.
III. LAWYER TO LAWYER
A Lawyer owes to opposing counsel, in the
conduct of legal transactions and the pursuit of
litigation, courtesy, candor, cooperation, and
scrupulous observance of all agreements and
mutual understandings. Ill feelings between
clients shall not influence a lawyer's conduct,
attitude, or demeanor toward opposing counsel. A
lawyer shall not engage in unprofessional conduct
in retaliation against other unprofessional conduct.
l. I will advise my client of the contents of this
Creed when undertaking representation.
2. I will endeavor to achieve my client's lawful
objectives in legal transactions and in litigation as
quickly and economically as possible.
3. I will be loyal and committed to my client's
1. I will be courteous, civil and prompt in
oral written communications.
2. I will not quarrel over matters of form or
style, but I will concentrate on matters of
substance.
3. I will identify for other counsel or parties
all changes I have made in documents submitted
for
73
review.
4. I will attempt to prepare documents which
correctly reflect the agreement of the parties. I will not
include provisions which have not been agreed upon or
omit provisions which are necessary to reflect the
agreement of the parties.
5. I will notify opposing counsel, and, if
appropriate, the Court or other persons, as soon as
practicable, when hearings, depositions, meetings,
conferences or closing are cancelled.
6. I will agree to reasonable requests for
extensions of time and for waiver of procedural
formalities, provided legitimate objectives of my
client will not be adversely affected.
7. I will not serve motions or pleadings in any
manner that unfairly limits another party's opportunity
to respond.
8. I will attempt to resolve by agreement my
objections to matters contained in pleadings and
discovery requests and responses.
9. I can disagree without being disagreeable. I
recognize that effective representation does not
require antagonistic or obnoxious behavior. I will
neither encourage nor knowingly permit my client or
anyone under my control to do anything which would
be unethical or improper if done by me.
10.1 will not, with good cause, attribute bad
motives or unethical conduct to opposing counsel nor
bring the profession into disrepute by unfounded
accusations of impropriety. I will avoid despairing
personal remarks or acrimony towards opposing
counsel parties and witnesses. I will not be influenced
by any ill feeling between clients. I will abstain from
any allusion to personal peculiarities or idiosyncrasies
of opposing counsel.
11.1 will not take advantage, by causing any
default or dismissal to be rendered, when I know the
identity of an opposing counsel, without first
inquiring about that counsel's intention to proceed.
12. I will promptly submit orders to the Court. I
will deliver copies to opposing counsel before or
contemporaneously with submission to the Court. I
will promptly approve the form of orders which
accurately reflect the substance of the rulings of the
Court.
13.1 will not attempt to gain an unfair advantage
by sending the Court or its staff correspondence or
copies of correspondence.
14.1 will not arbitrarily schedule a deposition,
court appearance, or hearing until good faith effort
has been made to schedule it by agreement.
15.1 will readily stipulate to undisputed facts in
order to avoid needless costs or inconvenience for
any
party.
16.1 will refrain from excessive and abusive
discovery.
17.1 will comply with all reasonable discovery
requests. I will not resist discovery requests which are
not objectionable. I will not make objections nor give
instructions to a witness for the purpose to delaying or
obstructing the discovery process. I will encourage
witnesses to respond to all deposition questions which
are reasonably understandable. I will neither
encourage nor permit my witness to quibble about
words where their meaning is reasonably clear.
18.1 will not seek Court intervention to obtain
discovery which is clearly improper and not
discoverable.
19.1 will not seek sanctions or disqualification
unless it is necessary for protection of my client's lawful
objectives or is fully justified by the circumstances.
IV. LAWYER AND JUDGE
Lawyers and judges owe each other respect,
diligence, candor, punctuality, and protection against
unjust and improper criticism and attack. Lawyers and
judges are equally responsible to protect the dignity and
independence of the Court and the profession.
1. I will always recognize that the position of
judge is the symbol of both the judicial system and
administration of justice. I will refrain from conduct
that degrades this symbol.
2. I will conduct myself in Court in a
professional manner and demonstrate my respect for
the Court and the law.
3. I will treat counsel, opposing parties, the
Court, and members of the Court staff with courtesy
and civility.
4. I will be punctual.
5. I will not engage in any conduct with offends
the dignity and decorum of proceedings.
6. I
will
not
knowingly
misrepresent,
mischaracterize, misquote or miscite facts or authorities
to gain an advantage.
7. I will respect the rulings of the Court.
8. I will give the issues in controversy deliberate,
impartial and studied analysis and consideration.
9. I will be considerate of the time constraints
and pressures imposed upon the Court, Court staff and
counsel in efforts to administer justice and resolve
disputes.
74
Exhibit “8”
FEE AGREEMENT –“STANDARD” OF
AUSLEY, ALGERT, ROBERTSON & FLORES, L.L.P.
April 28, 2015
[Client Name]
[Client Address]
RE:
Dear [Client Name]:
This letter sets forth the agreement concerning your representation in the abovereferenced matter by the firm of Ausley, Algert, Robertson & Flores, L.L.P. The firm's
representation of you becomes effective upon our receipt of a countersigned copy of this letter
and the initial retainer requested in this Agreement.
You are advised to read this Agreement carefully or have an attorney of your choice read
the Agreement and advise you regarding its contents. You should sign this Agreement only after
you have a complete understanding of its intent, meaning, force and effect.
1.
You have requested that this firm handle the above-referenced legal matter. If you have
requested that this firm represent you in a collaborative family law matter, then you have read
and agreed to all of the provisions stated in the Addendum to this Agreement, which is attached
and incorporated herein for all purposes, the same as if fully set forth at length.
2.
You hereby agree to pay and have paid to the firm of Ausley, Algert, Robertson & Flores,
L.L.P., an initial retainer fee of $_____. This initial retainer fee is the amount we require to
begin work on your specific case; it is not this firm’s estimate of the total amount you will
spend on attorney’s fees for this firm to see your case to its conclusion. This fee is paid for
the purpose of assuring the firm's availability in this matter. The firm may require you to
increase your retainer as needed. This retainer fee is placed in an interest-bearing account with
the interest being forwarded to a fund of the State Bar of Texas to help pay for legal costs of
indigents, as required by Texas statute.
3.
Billing is based on an hourly rate of $500.00 for services rendered by Thomas L. Ausley,
$425.00 for services rendered by Eric Robertson, $400.00 for services rendered by Kristen A.
Algert, $375.00 for services rendered by Kelly Ausley-Flores, $375.00 for services rendered by
JoAl Cannon Sheridan, and $200.00 for services rendered by Kelly Caperton Fischer. It is
impossible to determine in advance the amount of time that will be needed to complete
your case. We will not and do not predict the amount of time required to complete your case,
and we will not and do not predict the final cost to you to complete your case. You will be kept
fully informed of time used for conferences, telephone calls, drafting documents, research, court
time, and necessary travel time. Some of the work on your case can and will be done by the
firm's paralegals, whose billable rates are lower than the attorney's rates. To the extent that their
75
time is utilized, the overall fee will be lower. The hourly rate for paralegal services performed
by Melissa Donald is $150.00. The hourly rate for paralegal services performed by Ann Young,
Sandra Walker, and Jill Timmons is $165.00.
4.
You will be billed monthly on a time-expended basis with the billing cutoff date the 20th
of each month. Your retainer will be credited against the monthly billings. The firm may require
you to pay an additional retainer amount once the retainer balance is below fifty percent of its
original amount. Once your retainer balance reaches zero, your payment will be due in full by
the tenth of the month following receipt of the statement, unless special arrangements have been
made in advance.
Any sums due and owing for legal fees and costs, which are not paid within thirty (30)
days from the date of the bill, will accrue interest on the outstanding balance at the rate of ten
percent (10%) per annum, compounded monthly. If the retainer is not replenished promptly as
agreed above or any bill is not paid, the firm reserves the right to withdraw as your attorney; you
agree in signing this letter to sign promptly, on the firm’s request, all documents necessary for
this firm to withdraw.
In addition, the firm will transfer all past due and unpaid accounts to a collection service.
If for any reason the firm is compelled to commence collection efforts on any outstanding bill,
then, in addition to the above, you agree to pay my actual attorney’s fees and costs incurred
(whether the firm’s own time or that of other attorneys employed) in connection with that
collection effort.
In certain instances, one party agrees to pay some of the other party’s attorney’s fees and
costs, or the court makes such an order. If appropriate, the firm will seek such court orders or
agreements on your behalf. However, the obligation to pay fees and costs to the firm remains
your own, regardless of any such agreements or court orders.
5.
"Costs" are out-of-pocket expenses, such as filing fees, recording fees, deposition and
transcript fees, copying charges, facsimile transmissions, extra-ordinary postage costs, and long
distance telephone calls. Some of these costs exceed $100.00. Costs will be itemized and billed
on a monthly basis. Any additional costs exceeding the sum of $100.00 will not be incurred
without discussion and your prior approval. The firm reserves the right to direct you to pay any
costs directly to the service provider upon receipt of the service provider’s invoice.
6.
You promise to review your bill each month within five (5) days of receipt and to discuss
any questions about the bill with the office manager or attorney. If no questions are raised prior
to the time of your receipt of your next bill, then this constitutes acceptance by you that the bill
previously received is reasonable and the services and costs were necessarily incurred.
7.
The firm of Ausley, Algert, Robertson & Flores, L.L.P., does not represent that its
attorneys or employees are experts in the field of tax law or real estate property appraisals or
other areas of valuation. Therefore, if necessary, such tax advice or appraisals will be sought
from experts in those respective fields. The employment of tax counsel or appraisers will not be
undertaken without discussion with you and your express approval. These experts usually will
send their bills to the firm, and the firm will forward the bills to you for immediate payment.
76
These bills also must be kept current or we reserve the right to discontinue work on your case
until the bills are made current. If you have retained this firm to represent you in a collaborative
family law matter, then the provisions related to experts set forth in the Addendum to this
Agreement also apply.
8.
You will be informed as to the progress of the case. You will receive copies of all papers
coming in and going out of the office, including correspondence, pleadings, and other court
documents, and you agree to read those documents. A paralegal will be assigned to your case,
and she will be well acquainted with your case’s progress and can, on most occasions, assist you
in the attorney's absence. If the attorney is not available when you telephone, the paralegal will
advise him or her promptly of your request or problem, and you will be contacted at the earliest
possible time. The file and its progress are open to your inspection at any reasonable time,
during regular office hours.
9.
Ausley, Algert, Robertson & Flores, L.L.P. reserves the right to assign your case to
another attorney in the firm if it is deemed to be in the best interest of the case to do so.
10.
No promises or guarantees can be made or will be made regarding the outcome of any
lawsuit, including your specific lawsuit.
11.
Every effort will be made to expedite your case promptly and efficiently according to
legal and ethical standards. We are bound by strict rules which require us to serve you and the
Courts honestly and faithfully. We cannot, under any circumstances, break these rules. If a
client insists that we break any of the rules or canons of ethics, such as performing some act
which is dishonest or calling a witness to testify whom we know will not tell the truth, we are
required to withdraw from the case. If a client takes a position in a case which, in the attorney's
opinion, is destructive to the best interests of the client, the attorney is not required to follow the
client's instructions and may withdraw.
In addition, this firm may withdraw from the case at any time in the event that the
attorney-client relationship has been damaged to the extent the attorney, in the attorney’s sole
judgment, can no longer be an effective advocate for the client.
12.
When a settlement is reached or the court renders a judgment, various written closing
documents may be required to divide assets and to memorialize the terms of the court order or
agreed order. This may require additional drafting and discussions with opposing counsel.
Therefore, the judge's ruling or your agreement with the opposing party may not bring an end to
all work that is necessary and required. The attorney will advise you of the additional work that
will be required to complete your matter.
13.
This Agreement sets out the entire agreement and no oral agreements or promises
between you and this firm exist. This Agreement cannot be changed or modified except in
writing signed by a representative of this law firm and you.
14.
When your case is completed, a judgment is entered, and all required documents are
completed, this firm's employment will be at an end. Any unused portion of your retainer will be
refunded to you 30 days after all work has been completed. Excluding the work necessary to
77
obtain entry of the judgment, any new matters that arise after a judgment, any enforcement of the
judgment, and any appeal or answering of an appeal will require you and the firm to negotiate
another contract for the subsequent handling of your work.
If you have a complete understanding of this Agreement’s intent, meaning, force and
effect, please countersign the enclosed copy of this contract and return it in the enclosed
envelope so that there will be a mutual memorandum of this Agreement.
Very truly yours,
AUSLEY, ALGERT, ROBERTSON & FLORES, L.L.P.
By:______________________________________
KRISTEN A. ALGERT
KAA/dn
AGREED:
______________________________________
DATE:
78
________________________
APPENDIX “B”
CURRENT WORKING FILES
4-17-15
CLIENT
A
LAST
NAME,
First
Name
HOME
WORK
OPPOSING WORK/FAX TASK/CASE
PHONE PHONE/EMAIL ATTORNEY
PHONE
FACTS
(210)
XXXXXXX
HM
(617)
XXXXXXX
Email
Email
LAST
NAME,
First
Name
(210)
XXXXXXX
HM
(617)
XXXXXXX
Email
Email
LAST
NAME,
First
Name
(210)
XXXXXXX
HM
(617)
XXXXXXX
Email
Email
Childs
Name:
B’day
Childs
Name:
B’day
Childs
Name:
B’day
Childs
Name:
B’day
Childs
Name:
B’day
Childs
Name:
B’day
Name
Email
(210)
XXXXXXX
Prep QDRO
(210)
XXXXXXX
XXX-XXXX
cell
Name
Email
(210)
XXXXXXX
XXX-XXXX
cell
79
__________COUNTY
***NEED
ORDER***
XXX-XXXX
cell
Name
Email
WORK STATUS, CLIENT
NOTES COMMENTS ON
CASE
Draft
Docs
PROPOSED
Cl. __________COUNTY
FDOD - draft
Disc. Resp. __________COUNTY
Due to opp:
Closing Pkg to Client
6-14-11
APPENDIX “C”
HIGDON, HARDY & ZUFLACHT, L.L.P. CLIENT SURVEY
We appreciate the opportunity to serve your legal needs. Please help us improve the quality of
our service by completing this survey and returning it to our firm. Your responses will be kept
confidential. If we can assist you in the future we hope that you will call us.
1.
Your Name (optional):____________________________________________________
2.
Please identify your attorney (required):_____________________________________
3.
Please rate our firm in the following areas (including comments as appropriate):
(Please check one:)
Excellent Good
Family Law Expertise
Comments:
Efficiency handling your case
Comments:
Proficiency working with opposing
counsel
Comments:
Answering your questions
Comments:
Quality of Legal Advice
Comments:
Promptness of Service
Comments:
Friendliness of Staff
Comments:
Amount of Time Devoted to Your
Case
Comments:
Handling
of
Your
Telephone
Inquiries by Staff
Comments:
Handling
of
Your
Telephone
Inquiries by Attorney
Comments:
Office Location
Comments:
80
Fair
Poor
No Opinion
Office Furnishings
Comments:
Availability of Your Attorney
Comments:
Promptness for Meetings
Comments:
Promptness of Returning Calls
Comments:
Keeping you informed
Comments:
Staff professionalism
Comments:
Helpfulness of legal assistant
Comments:
Answering phones promptly and
courteously
Comments:
Minimizing your time on hold
Comments:
4.
Billing Questions:
Yes
Were your billing statements clear?
Comments:
Did you understand the fee arrangement at
the beginning of the engagement?
Comments:
Were you charged fairly for the services we
provided?
Comments:
Did we sufficiently address any billing
concerns
you
raised
during
your
representation?
Comments:
81
No
No Opinion
5.
Would you choose our firm again to represent you in other matters? (circle one)
Definitely
Probably
Probably Not
Definitely Not
6.
Would you recommend us to someone you know? (circle one)
Definitely
Probably
Probably Not
7.
8.
How satisfied are you with the outcome of your case? (circle one)
My case is not completed
Very Satisfied
Satisfied
Definitely Not
Not Satisfied
How can our firm improve its services to our clients?:__________________________
________________________________________________________________________
________________________________________________________________________
9.
Yes
Would you contact our firm in the future for a non-family law referral? (circle one):
No
10. (a) What compliments or criticisms do you have about individual lawyers in our firm:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(b) What compliments or criticisms do you have about members of our staff:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Additional Comments: ________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Thank you for completing this questionnaire!
82
APPENDIX “D”
CHECKLIST FOR CLIENT MEDIATION PREPARATION.
❑
1.
Remind client what mediation is-attorney assisted settlement conference.
❑
2.
Educate client as to the format used by the mediator, the possibility of a
joint session, private caucuses, and shuttle diplomacy. Tell your client that
mediation is not the day or time for postering!
❑
3.
Prepare client for lawyer/lawyer, lawyer/mediator conference.
❑
4.
❑
5.
❑.
6.
Review benefits of mediation, e.g. agreements can be reached in mediation
that are not available in court (manage tax consequences, alimony).
Personalize the mediator including qualifications, experience, and favored
techniques.
Review the mediator's commitment to neutrality and confidentiality.
❑
7.
❑
8.
❑
9.
Let the client know that the process works only if given sufficient time.
Encourage babysitting arrangements and the like to be made in advance.
❑
10.
Discuss positives and negatives of the client bringing a friend or family
member. Let the client know that an individual who is harmful to the process may
be asked to leave.
❑
11.
Review the issues in the case. This discussion should be comprehensive so
that you are certain that your file is mediation-ready.
❑
12.
Discuss with your client the preparation of a first offer to be presented at
mediation.
❑
13.
A review of the issues should lead directly into a specific discussion of the
strengths and weaknesses of their case. Include factual and legal
weaknesses.
❑
14.
Try' to provide your client with a range of outcomes. Clients quickly gather
perspective in their case if they can see the distance between Best Case Scenario
and Worst Case Scenario.
❑
15.
Be fair with the client about attorneys fees, expenses and time to trial when
making the strength/weakness analysis and discussing outcomes.
❑
16.
Discuss with your client what their secret expectation, fears, and needs are.
This problem often comes up the first time in mediation.
❑
17.
Ask your client to evaluate for you what the other side expects, fears, and
needs.
❑
18.
Prepare the client for some of the more obvious negotiating techniques:
Remind the client that mediation is a non-binding process, unless or until the
mediated settlement agreement is signed.
Make sure your client knows where to go and insist on punctuality.
83
a.
b.
c.
d.
"Either/or" offers. Explain that sometimes these are hard to evaluate.
Usually these offers contain hidden traps and hidden jewels. Let the
client know that the format of this type of offer can be ignored if
necessary.
The "no offer" offer. Let the client know that you can recognize an
offer that is the same as the one before only "rearranged".
No offer. Advise the client not to panic. This is probably going to be
the mediator's problem. Despite all wisdom to the contrary, we
sometimes bid against ourselves.
The walk-out. It happens. Do not let this take your client by surprise.
Let the client know that there may be courthouse remedies if the
other sides' behavior is extreme.
❑
19.
Discuss with your client the need to bring updated bank account statements
and other updated financial records (mention the benefits of bringing last
minute printouts from the internet of financial information).
❑
20.
Discuss the “trunk rule” of bringing all financial documents to the mediation with
those documents to be left in the trunk of the client’s car so that if those
documents are needed, they will be accessible at the mediation.
❑
21.
Discuss the dynamics of reaching settlement and the nature and enforcement
of a Mediated Settlement Agreement.
❑
22.
Advise your client that they will be called upon to carefully read the
Mediated Settlement Agreement because this agreement, if signed, is
binding.
❑
23.
Let your client know that reducing the "agreement" to writing is a . vitally
important aspect of the mediation and will take time. This is the all-important
road map for the divorce decree.
❑
24.
Discuss with the client the mediator fee and remind the client to bring a
check payable to the mediator.
84
APPENDIX “E”
LAW OFFICES OF
SAN ANTONIO, TEXAS 78230-1204
CHARLES E. HARDY
Board Certified - Family Law
TEXAS BOARD OF LEGAL SPECIALIZATION
FELLOW, AMERICAN ACADEMY OF MATRIMONIAL LAWYERS
FELLOW, INTERNATIONAL ACADEMY OF MATRIMONIAL LAWYERS
Telephone (210) 349-9933
Telecopier (210) 349-9988
Direct Line: (210) 561-4025
email: charleshardy@hhzlawcom
[Date]
[Client Name]
[Address]
[City/State]
Re:
Dear [Name]:
Enclosed please find a copy of the correspondence from ____________ confirming that
we are scheduled for mediation in connection with the above referenced cause on
____________, at ______ __.m. Our mediator will be ____________ and mediation will take
place at ______________
On the date of mediation you will need to bring a check in the amount of $___________,
which is one-half of the cost of the mediation fee of $___________.
You will also need to bring any monies due to bring your retainer up to $___________,
plus any outstanding balance due, prior to the mediation as of this date.
Mediation should be approached as if we are preparing for trial. We will need to have
collected all documentation which would be used at trial prior to the mediation.
As we have discussed previously, there are many advantages of mediation. Simply put,
trial is a difficult for most people. Many people say and do things, at trial, which they would not
ordinarily do, in an effort to win. Often they “leave their souls at the courthouse.” You will
have an opportunity during the mediation process, should you choose, to vent your frustrations
and voice your principles. Many times with the help of a good lawyer and a competent
mediator a settlement can be structured such that both parties “win” something whether it’s
monetary gain or emotional satisfaction.
The mediation process works when you start high and be prepared to meet “in the
middle.” It is advisable that we have our first offer prepared and in writing prior to walking into
85
mediation. Although, we should not discount any valuable advice the mediator will give us
during mediation. This will assist us in planning our strategy including, but not limited to, how
much you will offer, and how much to move from your offer.
It is always darkest before dawn. The mediation process does not usually start to work
until late in the day; often as one side is packing it’s files to leave. If a party can exercise enough
patience, a good mediator can convince both parties they will be well served by a settlement that
day which would prevent incurring future costs “both financial and emotional” of continual
litigation. Additionally, settlement at mediation prevents an uncertain the outcome at trial.
Although we can never guarantee this matter settling at mediation, however, should we
be successful on ____________, please understand, if an agreement is reached and put in writing
you will be required by law to live by it.
One final rule of mediation is to always leave something on the table. If you leave a few
“chips” on the table at mediation you have a much better chance of later seeking a favor from the
opposing party and thus avoiding potential future litigation. So, even if we do not reach a
settlement we want to give them something to think about.
If mediation fails the potential for arbitration may arise. This makes the mediator act as
the “judge” for your case. Please think about this as another possible alternative in resolving
your case.
Finally, it is important that we meet prior to mediation to prepare for same. Please call
my Legal Assistant, ____________, to schedule a mutually convenient to for us to meet and
prepare for our mediation on ____________. I look forward to hearing from you. Should you
have any questions or comments, please feel free to call.
Very truly yours,
CHARLES E. HARDY
CEH/sb
86
APPENDIX “F”
LAW OFFICES OF
CHARLES E. HARDY
Telephone (210) 349-9933
Direct Line: (210) 561-4025
FELLOW, AMERICAN ACADEMY OF FAMILY LAWYERS
email: charleshardy@hhzlawcom
____________, 2015
VIA EMAIL
__________________
_____________________
_____________________
RE:
In the Matter of the Marriage of____________ Cause No. ____________
Dear _____________,
This e-mail is in regards to your Final Decree of Divorce document. This document has been
uploaded to the HHZ website for your convenience. The document and information are private
and not accessible to the public and may only be seen by you.
To access the document you must first go to the HHZ website at www.hhzlaw.com and login
with the e-mail address ____________; your default password is the word ____________. Once
logged in you may update the information if necessary and change the password if you wish to
do so. In the case that the information is updated please let me know so it can be updated in our
system as well. If you should have any questions or concerns please contact our office at (210)
349-9933.
It has been an absolute pleasure representing you in this matter.
Very truly yours,
CHARLES E. HARDY
CEH/sb
Enclosures
87
APPENDIX “G”
LAW OFFICES OF
SAN ANTONIO, TEXAS 78230-1204
CHARLES E. HARDY
FELLOW, AMERICAN ACADEMY OF MATRIMONIAL LAWYERS
Telephone (210) 349-9933
Direct Line: (210) 561-4025
mail: charleshardy@hhzlawcom
_____________, 2015
___________________
__________________
__________________
RE:
In the Matter of the Marriage of ____________; Cause No. ____________
Dear ____________,
My firm's representation of you in the above captioned matter ended with the execution and
entry of the Final Decree of Divorce with the Court. I feel that it is important that we review
certain matters during the conclusion of our representation so that you may know what to expect
in the future.
First, this “closing notebook” contains the pertinant pleadings, orders, documents in your case.
We would strongly urge that you thoroughly review the documents contained herein, especially
the Decree, being familiar with it in its entirty.
Second, I would encourage you to retain a copy of any and all correspondence and other
documentation between you and your former spouse should the need arise to use same in the
future.
Third, if you need certified copies of your Decree, you can either go to the District Clerk's office
located 100 Dolorosa, San Antonio, Texas or contact my office and we will be happy to assist
you in this regard.
Fourth, please remember that I have scanned your order and have made it available online at our
website at www.hhzlaw.com.
88
__________________
Page 2
______________, 2015
Fifth, please note that after thirty days we will move your file from our office to offsite storage
at which time it will incur fees to have the file returned to our office. Please advise our office
should you need any documents from the file prior to the files moved.
It has indeed been a pleasure representing you in your case. Even though at times it may have
seemed that your situation was difficult, we need to remember that this is one of the most
anxious periods in anyone's life and I hope that our office helped you through this difficult time.
If you should need any further assistance in the future please do not hesitate to contact me.
Very truly yours,
CHARLES E. HARDY
CEH/sb
Enclosure
89
HHZ
Closing Documents
for
_____________________
_____________, 2015
By Charles E. Hardy
Attorney at Law
(210) 349-9933
www.hhzlaw.com
90
HHZ
Closing Documents
for
_____________________
_____________, 2015
By Charles E. Hardy
Attorney at Law
(210) 349-9933
www.hhzlaw.com
91
NO. __________________
IN THE MATTER OF
THE MARRIAGE OF
§
§
§
§
§
§
§
§
§
§
§
________________________
AND
________________________
AND IN THE INTEREST OF
________________________
________________________,
CHILDREN
IN THE DISTRICT COURT
_____TH JUDICIAL DISTRICT
BEXAR COUNTY, TEXAS
CLOSING NOTEBOOK
1.
FINAL DECREE OF DIVORCE
2.
MEDIATED SETTLEMENT AGREEMENT
3.
QUALIFIED DOMESTIC RELATIONS ORDER
4.
SPECIAL WARRANTY DEED
5.
DEED OF TRUST TO SECURE ASSUMPTION
6.
QUITCLAIM DEED
7.
POWER OF ATTORNEY TO TRANSFER MOTOR VEHICLE
8.
POWER OF ATTORNEY TO TRANSFER MOTOR VEHICLE
9.
10.
EMPLOYER’S ORDER TO WITHHOLD FROM EARNINGS FOR CHILD
SUPPORT
INVENTORY AND APPRAISEMENT OF __________________
11.
INVENTORY AND APPRAISEMENT OF __________________
12.
ORIGINAL PETITION FOR DIVORCE
92
93
APPENDIX “H”
94

INDISPENSABLE BILLING TIPS FOR ALL FAMILY LAWYERS

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