D. C. Toedt III
Attorney at law
[REVIEWED & UPDATED NOVEMBER 2018]
AUTHOR’S NOTE: In keeping with my almost-entirely-paperless practice, I typically use this document by asking clients to confirm by email that they agree to it. I reserve the right to modify the terms and conditions of this document (but not, of course, specific client agreements) at any time.
1. Introduction: It is customary, and good practice, for attorneys and their clients to enter into written engagement agreements. This “Agreement” is a master agreement between a client (“CLIENT”) and me. It will apply automatically to any specific engagements that CLIENT and I mutually agree, orally or in writing, that I should undertake on CLIENT’s behalf.
I cannot give CLIENT legal advice about this Agreement, so CLIENT is encouraged to seek independent legal advice if it has any questions or concerns about this Agreement.
2. Limited scope of representation: Unless we expressly agree otherwise in writing:
(a) I will represent CLIENT only in connection with the specific individual matters as to which we agree in writing;
(b) I will be representing CLIENT only and not its affiliates or the officers, partners, directors, employees, or agents of any of them; and
(c) without limiting subdivisions (a) and (b), I will not be providing CLIENT with legal services in connection with general corporate- or securities matters, nor will I be rendering any tax advice.
3. Billing rate: I generally bill for my time at an hourly rate, but I am happy to discuss a fixed-fee arrangement for professional services if desired.
4. Expenses: In addition to paying the agreed fee for professional services, CLIENT will reimburse me for all reasonable out-of-pocket expenses I actually incur in rendering the services, on a straight pass-through basis, including but not limited to official filing fees, postage, photocopying, and overnight messenger charges (if any). (I absorb minor ‘office’ expenses myself in lieu of taking the time to track and bill them.)
I will normally advance such expenses on CLIENT’s behalf; for significant expenditures, I reserve the right to ask for prepayment or for CLIENT to pay such expenses directly.
I will normally try to obtain CLIENT’s prior approval before incurring any expenses exceeding $1,000 on CLIENT’s behalf.
5. Estimates: For work on an hourly-rate basis, upon CLIENT’s request at any time I will provide a written estimate of the expected fees and expenses.
Normally, estimates for hourly-rate engagements will be non-binding; I would be happy to discuss fixed-fee billing upon request.
6. Invoices; payment:
(a) I will send an itemized invoice at the conclusion of each engagement. Typically I send monthly interim invoices for engagements that extend for more than a month.
(b) Each invoice is due on receipt unless we otherwise agree in writing for a particular engagement. (I generally do not object to net-30 payment.)
(c) If for any reason CLIENT does not agree with an invoice or has questions about it, CLIENT will promptly contact me.
(d) Should invoices not be paid on a timely basis, I reserve the right to suspend rendering professional services or to withdraw from representation, subject to any applicable legal-ethics constraints; if this ever becomes necessary, I will so advise CLIENT and allow CLIENT sufficient time to find other representation.
7. Confidentiality: Legal ethics rules automatically impose a strict NDA on attorneys; see Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct promulgated by the Supreme Court of Texas, which has authority over all Texas lawyers. That rule says in part (emphasis and extra paragraphing added):
(a) “Confidential information” includes both “privileged information” and “unprivileged client information.”
“Privileged information” refers to the information of a client protected by the lawyer-client privilege …
“Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information; or
(ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.
(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultation.
(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.
8. Email communications; cloud services:
(a) CLIENT agrees that I may communicate with it by email, including for example sending invoices that way. If security will be a particular concern for any given communication, please let me know in advance.
(b) CLIENT acknowledges that I use “cloud” services for electronic storage of information, including client information; CLIENT consents to my doing so.
9. Results not guaranteed: CLIENT acknowledges that (i) it is often impossible to predict the outcome of a particular legal engagement with any certainty, and therefore (ii) I do not guarantee any particular result in an engagement to provide legal services.
10. Changes in the law: The law sometimes changes; that means that my advice or recommendations about a particular matter might need to be updated. I might unilaterally call CLIENT’s attention to such a change as a courtesy, but I do not undertake any obligation to do so.
11. Calendaring of deadlines and other important dates: I will of course make entries in my calendar for dates by which I must take particular action, for example a deadline to respond to an Office action by the U.S. Patent and Trademark Office. On the other hand, it is up to CLIENT, not me, to calendar particular dates by which CLIENT must take action, e.g., to preserve CLIENT’s rights or to exercise available options. Here are a few illustrative examples (without limitation):
- a contract’s upcoming expiration date
- a deadline to unilaterally extend a contract’s term
- a deadline to opt out of an evergreen contract provision
- a deadline to file necessary paperwork to keep a trademark registration alive
From time to time, I might remind CLIENT of an upcoming date along the lines described above; if I do so, it is strictly as a courtesy and not as an obligation. CLIENT is strongly encouraged, as a matter of sound business practice, to enter such dates into an electronic- or paper-based calendar reminder system or tickler file (or to hire a service that will do so for a fee).
12. Termination or expiration of relationship:
(a) I am entitled to consider that our attorney-client relationship has ended automatically if CLIENT has not engaged me to render legal services for one year after the date of the last written communication between CLIENT and me about a substantive legal matter (other than written communication concerning billing matters).
(b) Except as referred to in subdivision (c), either CLIENT or I can terminate our professional relationship at any time for any reason by giving written notice to the other party, in which case my representation will terminate immediately.
(c) Please note that applicable law or ethics rules may limit my ability to terminate our professional relationship without CLIENT’s consent.
(d) Upon termination by either party for any reason, CLIENT will pay my fees through the date of termination calculated at the rates stated above, along with expenses incurred through the date of termination.
(e) Upon termination by either party for any reason, CLIENT is entitled, upon request, to any files I maintain concerning its engagement(s). For archival purposes, I may retain copies of electronic materials, and at CLIENT’s expense I may make and retain copies of any hard-copy file contents, before returning or forwarding such files.
13. Grievances: Under Texas law, I am required to provide the following notice of the State Bar’s grievance procedures.
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 information about how to file a complaint. For more information, please call 1-800-932-1900. This is a toll-free phone call.
You can find additional information at the State Bar Web site at www.texasbar.com; as of July 2018, the specific page can be found at https://goo.gl/HXehYU.
14. Amendments: This Agreement may be amended only by a writing signed by a duly-authorized representative of CLIENT and by me.
15. Governing law: Both this Agreement and all aspects of the relationship between CLIENT and me will be governed by the laws of the State of Texas, without regard to its choice-of-law principles.
16. Jurisdiction: The courts having jurisdiction in Harris County, Texas, will have exclusive jurisdiction of any action arising out of or relating to this Agreement or the relationship between CLIENT and me; all parties agree to submit to the personal jurisdiction of those courts.
17. Early neutral evaluation: IF: A dispute between us, arising out of or relating to this Agreement or any transaction or relationship arising from it, becomes the subject of an actual or reasonably-anticipated lawsuit, arbitration, or other action; THEN: If either of us asks, we will promptly:
(i) seek an informal, non-binding, third-party “sanity check” about the dispute in accordance with the Early Neutral Evaluation procedures of the American Arbitration Association, and
(ii) if an action is already pending, jointly move for a temporary stay of the action pending the completion of the sanity-check proceeding.
18. Entire agreement: This Agreement, together with any supplemental written agreements concerning specific engagements,
(i) contains the entire understanding and agreement between CLIENT and me concerning its subject matter, and
(ii) supersedes any prior or contemporaneous written or oral agreements, understandings, representations, or warranties between CLIENT and me concerning that subject matter.
This Agreement will be deemed incorporated by reference into any such supplemental written agreements.
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