Terms of Engagement
The information below describes the terms that apply to the legal services Klemchuk LLP (the “Firm”) will provide for the matter (the “Matter”) to the Client set forth in the Engagement Letter. We encourage you to discuss any of these terms with us at any time. If modifications to the terms are needed, you must discuss that with us so that agreement on the changes can be reached and reduced to writing. All references to “you” or “your” means the Client or Clients identified in the Engagement Letter. Individuals or entities that are related to or affiliated with you, such as partners, officers, directors, stockholders, parent companies, related companies, or family members are not clients unless we otherwise agree in writing.
Scope of Work
The scope of work we will do for you is limited to the description stated in our Engagement Letter. Any changes or additions to the scope of work must be agreed to and memorialized by letter or email. It is also understood that the Firm is being retained to provide legal services only and that we are not responsible for providing business or financial advice. Unless that description states otherwise, our engagement does not include responsibility for (1) review of your insurance policies to determine the possibility of coverage for fees and costs or for the claim asserted or could be asserted, (2) notification of your insurance carriers about the Matter, (3) advice to you regarding potential indemnity from third parties regarding the matter, (4) advice to you about your disclosure obligations concerning the Matter under federal securities laws or any other applicable law, or (5) advice to you about tax or business issues relating to the Matter.
If we agree to represent you in additional matters, we will do so in writing by letter or email, and these Terms of Engagement will remain the same for those additional matters unless changed by agreement in writing.
Information and Documents
To enable the Firm to provide effective legal services in this Matter, it is essential that the Client agrees to disclose to us, fully and accurately, all material facts pertaining to this Matter, and to keep us informed of all developments related to this Matter. We will send copies of correspondence and other significant documents or materials related to this Matter to your attention.
Attorneys Handling Your Representation
One attorney will have primary responsibility for our relationship with you. We refer to this attorney as the "Relationship Manager." Each matter will also have a "Project Manager" attorney assigned, who has overall responsibility for that particular matter. We may assign additional attorneys and other professionals when needed based upon the type of work and appropriate experience level required. We also use paralegals, legal assistants, and other professionals in providing services when we believe that their use improves efficiency. See the Engagement Letter for the attorneys initially assigned to the Matter as well as the Client Team memo for their roles. Our use of the Relationship Manager/Project Manager model is explained in greater detail in our Proven Process as well as our Client Experience pages and we have found that it helps us provide service consistent with our Service Goals.
1. Legal Fees and Fee Estimates
Unless we agree otherwise, the Firm will bill for attorney, paralegal, and other professional time on an hourly basis, with time billed in 0.1-hour increments at the rates set forth in the Engagement Letter. Other attorneys and paralegals may bill at rates consistent with the rate schedule set forth below:
Partners $425 - $550
Senior Attorneys/Counsel $350 - $450
Associates $225 - $375
Paralegals $130 - $205
While our rates are reviewed periodically, often annually, and we reserve the right to increase our rates in the future, we will not increase rates during the current calendar year while a matter is active.
We will also bill the Client for third-party services as well as out-of-the-ordinary expenses, such as overnight charges, courier fees, or significant long distance and facsimile charges. We will not bill the Client for ordinary postage, long distance, facsimile, and copy charges. Some large disbursements may be forwarded to you for direct payment. Some charges may not be in the system at the time of monthly billing and will appear on a later invoice.
For some matters, we offer alternative billing arrangements in addition to hourly billing. You are invited to raise the possibility of alternative billing arrangements, and choose between the alternatives set forth in the Client Pricing Options memo, if alternative billing arrangements make sense for a particular matter. We will bill you according to your selection in the Client Pricing Options memo attached to the Engagement Letter.
It is the general policy of the Firm to require retainers of all new clients or for significant matters for existing clients. The retainer requirement is set forth in the Engagement Letter. You agree that the Firm reserves the right to require a retainer be paid subsequent to the engagement if required by a change in circumstances such as an agreed change in the scope of work, a significant development like trial, or Client payment issues. Because the Firm often uses retainers as security for payment of future invoices, a Client's refusal to pay or replenish a retainer is grounds for the Firm to withdraw representation.
3. Billing and Payment
The Firm’s statements for fees and expenses are due upon receipt, and we expect that our monthly statements will be paid no later than 30 days after receipt. By entering into this Agreement, the Client agrees to timely payment of the Firm’s invoices for fees and expenses related to the representation. We reserve the right to terminate our representation of clients who do not pay promptly. The Firm will charge interest at 1% per month or the maximum rate allowed by law for any invoices that remained unpaid after 90 days from the invoice date.
We generally forward our invoices monthly. For hourly billing, invoices will include a brief description of each item of work performed, the date performed, the time required to do the work, and the expenses incurred. Please let us know if you need additional information on the invoices, and we will try to accommodate your request. You agree that if we bring an action to collect amounts due us that we will be entitled to recover the costs and attorney fees incurred by us. You consent to venue and jurisdiction where we have an office with attorneys, who worked on your behalf.
If we are required to testify, produce documents, or respond to other requests in connection with proceedings commenced by third parties that relate to our representation of you, you will pay us our reasonable fees and costs incurred. Similarly, if we are required to comply with a protective order on your behalf, you will pay us our reasonable fees and costs incurred in complying with the order.
4. Fee Estimates are Not Alternative Billing Arrangements
Clients ask us on occasion to provide fee estimates for particular matters and may request fee and expense budgets. There is a difference between an estimate for a matter and the Firm guaranteeing the cost of a matter such as in a flat fee arrangement. We welcome discussions with clients regarding pricing our services other than through the billable hour model. However, you agree that unless we enter into a flat fee billing arrangement, value billing arrangement, or some other type of alternative billing arrangement according to a Client Pricing Options memo signed by the Firm, any such estimate is only an estimate provided for Client's convenience representing our best guess at future costs and further, the Firm is not bound by any such estimate.
Conflicts of Interest
Recognizing and addressing conflicts of interest is a continuing issue for attorneys and clients. We have implemented procedures to identify conflicts at the outset of each engagement. It is possible that during our representation of you, some of our present or future clients will have disputes or transactions with you. We are accepting this engagement with your understanding and express consent that our relationship with you will not preclude us from continuing or accepting an engagement from a new or existing client, even if the interests of such clients are directly adverse. However, we will not accept an engagement that is directly adverse to you if either: (1) it would be substantially related to the subject matter of our representation of you, or (2) we have obtained from you proprietary or other confidential information of a nonpublic nature that, if known to our other client, could be used in any such other matter by such client to your material disadvantage. You should understand that having similar agreements with other clients helps preserve our ability to continue to represent you.
We encourage the use of email as an efficient means of communication. However, emails can be delayed or blocked (for example, by anti-spam software). You must not assume that an email message sent to us was actually opened and read by us unless you receive a non-automated reply message indicating that we have read your message. In addition, you should be aware that there are risks in sending or receiving emails and other electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access to the communication. Accordingly, you should avoid using a workplace computer or system for a personal client-lawyer communication, or a borrowed computer or a public computer, such as in a hotel or library, for any client-lawyer communication with us, particularly any sensitive or substantive client-lawyer communication.
For particularly sensitive communications, we prefer to use the Dust® communication platform or some other form of secure application, which allows for secure text communications. We can assist you with setting up an application if you desire to use it.
Withdrawal or Termination
Because the Firm will be providing professional services, either the Client or the Firm may terminate our relationship at any time for any reason, by written notice to the other party. In particular, the Firm reserves the right to withdraw from our representation if the Client fails to honor the terms of the Agreement including failing to timely meet payment obligations, fails to cooperate or follow our advice on a material matter, or if any fact or circumstance would, in our view, render our continuing representation unlawful, unethical, or ineffective. If the Firm withdraws from further representation or the Client terminates the relationship, the Client and the Firm jointly agrees to take necessary steps, including signing of documents, such as documents consenting to substitution of counsel.
Expenses and other charges accrued on the Client’s behalf up to the date of termination by either the Firm or the Client will be payable under the payment terms of this Agreement.
Conclusion of Representation; Disposition of Files and Documents
Unless previously terminated, the Firm’s representation of the Client will terminate when we send the final statement for services rendered in the Matter. The Firm will retain electronic copies only of documents the Client furnishes to us in our client files for this Matter. The Firm will not maintain physical document files, so please maintain your own copies of the documents the you furnishes to us. At the conclusion of this Matter (or earlier if appropriate), please advise the Firm as to which, if any, documents you wish us to return to you. The Firm may also keep copies for our records. The Firm will retain or dispose of any remaining documents or other materials, including electronic files, in accordance with the Firm’s Document Retention Policy in effect.
Once our representation is concluded, we will not be obligated to take any steps such as keeping track of deadlines, filing papers, pursuing appeals, or monitoring or advising you about changes in the law or circumstances that might bear upon the concluded matter.
The Client is engaging the Firm to provide legal services in connection with the specific Matter identified on page 1 of the Engagement Letter. After completion of the Matter, changes may occur in the applicable laws or regulations that could have an impact upon the Client’s future rights and liabilities. Unless the Client specifically engages us in writing to provide additional advice on issues arising from the Matter, the Firm will have no continuing obligation to advise the Client with respect to future legal developments.
The Engagement Agreement will be construed and governed in accordance with the laws of the State of Texas without application of choice-of-law provisions that would require the application of laws of another jurisdiction. With regard to any dispute relating to the Engagement Agreement or our relationship, the Firm and the Client (1) irrevocably submit themselves to the exclusive venue and personal jurisdiction of the state and federal courts in Dallas County, Texas and (2) waive any challenge to venue and personal jurisdiction they may have to a lawsuit filed in the state or federal courts in Dallas County, Texas. If the Firm and Client enter into the Arbitration Agreement, the terms of the Arbitration Agreement will supersede the dispute resolution terms of this provision and the Firm and Client agree to binding arbitration as set forth in the Arbitration Agreement.
It is important that the Client understands and accepts that the Firm cannot make, and has not made, any guarantee regarding the outcome of this representation. Nothing in this Agreement and no statements by the Firm staff or attorneys constitutes a promise as to results or a guarantee. Any statements by the Firm about the outcome of this Matter are expressions of opinion only. Client agrees that payment of our fees and disbursements is not conditioned on any particular outcome.
Duty to Maintain Accurate Contact Information
Because some matters may be open for years, such as trademark and patent applications, you agree to keep the Firm updated on the current contact information for the appropriate decision maker at the Client. We will require that updated contact information to provide notice of the status of matters as well as to send the Client a disengagement letter or request instructions for handling of Client files. You agree that after the Firm has made two attempts to contact the Client without success and has conducted a reasonable Internet search for contact information, the Firm may assume (1) the Client considers the Matter close, (2) the Firm can destroy the Client's files in accordance with our Document Retention Policy, and (3) the Firm and its attorney's may file papers to withdraw from further representation.
Matter Specific Agreements
The State Bar of Texas investigates and prosecutes professional misconduct by Texas attorneys. Although not every complaint against or dispute with an attorney involves professional misconduct, the Office of General Counsel of the State Bar of Texas will provide you with information about how to file a complaint. For more information, please call 1-800-932-1900.
Texas Lawyer’s Creed
The Texas Supreme Court has promulgated the Texas Lawyer’s Creed and asked lawyers to advise clients about the contents of the Creed when undertaking representation. You can find of a copy of the Texas Lawyer's Creed by using this hyperlink. A copy of the Creed is also attached to these Terms of Engagement. The Firm will endeavor to conduct its representation of the Client consistent with the Texas Lawyer's Creed.
The Agreement supersedes all prior oral or written agreements regarding the Firm’s representation of the Client. This Agreement can be amended or modified only in writing. Nothing in this Agreement is intended or will be construed as impermissibly waiving or limiting the Firm’s or its attorneys’ professional obligations to the Client or to the profession under the Disciplinary Rules of Professional Conduct adopted by the State Bar of Texas or other law, including the Sarbanes-Oxley Act of 2002. This Agreement will be binding upon the Client and the Firm, and our respective heirs, executors, legal representatives, successors, and assigns.