POWER OF ATTORNEY AND CONTINGENT FEE CONTRACT
I, , residing at phone: (hereinafter “Client”), and Attorney Taren Marsaw of Marsaw Legal & Consulting PLLC (hereinafter “Attorneys”), in consideration of the mutual promises herein contained, the parties hereto agree as follows:
1)PURPOSE OF REPRESENTATION.Client hereby fully employs Attorney to manage and handle, as deemed necessary, all claims and causes of action, suit or suits, against any wrongful party, and to prosecute said causes of action for and on Client’s behalf, with or without suit, and to recover all damages and compensation to which Client may be entitled, as well as to compromise and settle all claims arising out of the incident that occurred on located at , on or about .
Client understands that this contract for legal services is for representation on this claim and this claim alone. It does not extend to any probate matter, tax advice, criminal defense, divorce, application for governmental benefits, or other kinds of legal service or proceeding. If ancillary legal services are necessary, Client agrees that all Attorneys’ fees, costs, or expenses related to those services will be borne by Client.
It is expressly agreed and understood that Attorney’s representation is limited to the specific person(s) identified as Client and not any other person or entity. Client agrees and understands that any or all lawyers in the firm of Marsaw Legal & Consulting PLLC may handle or work on the case.
2)PURPOSE OF REPRESENTATION.In consideration of the services to be rendered for me by my said Attorneys hereunder, I hereby sell, transfer, assign and convey to my above-named Attorneys an undivided interest of THIRTY-THREE PERCENT (33%) interest in and to said claims and of the same and any judgments awarded, or gross amounts recovered, on or for such claims or suits. Should settlement require a trial or any litigation, the above-named attorney shall be entitled to an undivided interest of FORTY PERCENT (40%) in and to said claims in lieu of the 33% stated above. Attorneys are authorized to deduct the legal fee from the gross proceeds of any settlement or judgment obtained. IN THE EVENT OF NO RECOVERY, CLIENT SHALL OWE ATTORNEYS NOTHING FOR SERVICES RENDERED OR ANY EXPENSES INCURRED.
3)CALCULATION OF ATTORNEYS’ FEES.The amount of Attorneys’ fees under this contract shall be calculated based on the gross amount recovered. Any expenses paid on Client's behalf will be deducted from Client’s percentage/share of the gross recovery. Any fee owing to any referring attorney shall come from the Attorneys’ share of fees authorized by this contract unless Client has specifically retained other counsel on a different fee basis.
4)COOPERATION OF CLIENT AND DEDUCTION OF EXPENSES. Client agrees to fully cooperate with Attorneys in prosecuting Client’s claims, including but not limited to keeping Attorneys always apprised of Client’s address and telephone number. If Client does not cooperate, Attorneys may release the file to Client by mail directed to the last known address. Client consents for Attorneys, on lack of cooperation by Client, to file any documents with applicable court or tribunal to withdraw as Client’s attorney of record.
Client agrees that Attorneys are to be repaid and reimbursed for all costs of investigation, preparation, and trial of the case, court costs, depositions, subpoenas, travel, witnesses, experts, photography, video, reports, medical records, filing fees, discovery, expert witnesses (including fees), contract paralegal services, overtime charges, xerox copy charges, telephone charges, facsimile charges, postage and/or delivery charges, mileage charges, hotel charges, charges for audio-visual aids, demonstrative evidence charges, charges for testing, fees for probate counsel, charges for jury consultants, and any other costs reasonably associated and necessary in the opinion of Attorneys, and authorizes Attorneys to deduct such costs from the recovery or proceeds, in addition to the Attorneys’ fees outlined in paragraph two (2) above.
Client additionally agrees that Attorneys may borrow funds from a commercial bank or another lender to finance or pay any such court costs, litigation expenses, and Client advances, and the interest charged on such borrowed funds will be added to the court costs and litigation expenses to be deducted from the Client’s portion of any settlement or recovery.
Client understands and agrees that Attorneys may utilize an investigator to perform investigative services and understand that reasonable and customary charges for such investigative services will be made in addition to Attorneys’ fees.
Client has been advised that Attorneys may represent multiple clients in connection with claims arising out of a single incident. When more than one client is represented by Attorneys in a matter arising out of a single incident or occurrence, then costs expended for the common benefit of a group of clients may be spread among the entire group of clients.
When possible and ascertainable, common benefit costs will be shared proportionally to each client’s gross recovery. For example, if the firm spends $1,000.00 to hire an expert to reach an opinion on a topic affecting two clients, and at the end of the case, Client 1 recovers $40,000.00, and Client 2 recovers $60,000.00, then Client 1 would pay $400.00 of the expert’s charge, and Client 2 would pay $600.00 of the expert’s charge. Common benefit costs include any and all costs which can benefit a group of clients.
In the event there is no recovery made on behalf of Client or insufficient recovery to result in a net payment to Client if Attorneys’ fees are paid first, Attorneys agree to change the calculation of the Attorneys’ fees so that such proceeds will be applied as follows:
a. First to the payment of all outstanding costs and expenses; then
b. Any balance to the payment of Attorneys’ fees; then
c. Any remainder to the Client.
d. In no event will Client be liable for costs not covered by the damages recovered. Such excess costs will be borne directly by Attorneys.
5)NON-LITIGATION EXPENSES. Attorneys’ responsibility to prepay any and all expenses associated with the legal matter does not include any of the following:
a. Normal day-to-day living expenses of the Client and/or Client’s family:
b. Payment of medical bills for services provided, except upon the financial distribution of settlement proceeds or other damages recovered in the resolution of the Client’s claims; and
c. Client’s legal fees incurred for matters not associated with the matters for which Attorneys have been retained or for any other expenses incurred by Client, including tuition, fines, or other expenses not directly incurred in the pursuit of Client’s claims or as directed by Attorneys.
6)LOPs, THIRD-PARTY INTERESTS, AND IOLTA ACCOUNT. Client expressly authorizes Attorneys to issue Letters of Protection (LOPs) on Client’s behalf, which will bind Client to pay healthcare providers directly from Client’s portion of any recovery. Client expressly authorizes Attorneys to pay the bill of any healthcare provider that has been issued a Letter of Protection directly from Client’s portion of any recovery.
Attorneys and client(s) have discussed the concept of subrogation and the possible existence of medical liens or other subrogation interests. Client understands that before the disbursement of any settlement or verdict proceeds, third-party interests such as Medicare, Medicaid, hospital liens, and other liens/subrogation claims (hereinafter “third party interests”) will be investigated. Client understands that resolution or settlement of third-party interests is separate from the prosecution of Client’s underlying claims against parties responsible for causing the incident or Client’s injuries. Client expressly authorizes Attorneys to engage additional legal counsel, law firms, or others to resolve any such third-party interests. Client agrees that any fees paid or charged by additional legal counsel, law firms, or others engaged to assist in resolving third-party interests will be paid by Client in addition to Attorneys’ contingency fee described in paragraph two (2) above. Client agrees that fees for any such additional legal counsel, law firms, or others to assist in the resolution of any third-party interests may be advanced by Attorneys, and Client agrees that Attorneys are to be repaid and reimbursed for any such fees from Client’s portion of the recovery pursuant to paragraph four (4) of this contract.
Client authorizes Attorneys to pay, out of Client’s portion of any recovery, any lien that may be asserted by any hospital, governmental entity, or governmental agency. Client understands that such funds are drawn from Client’s recovery portion after calculating Attorneys’ fees.
Client further understands that any Client’s funds that may come into the Attorneys’ possession must be deposited or held in an “IOLTA” account designated by the State Bar of Texas. No funds placed in the Attorneys’ “IOLTA” trust account, maintained pursuant to the State Bar Rules, will earn interest recoverable by the Client.
7)NO AGREEMENT TO APPEAL. Attorneys have not agreed to prosecute any appeals of the Client’s case, and Attorneys do not automatically or by implication agree to appeal any adverse ruling, verdict, or judgment.
8)ENGAGEMENT OF PROBATE COUNSEL. Client understands and agrees that this contract does not obligate Attorneys to represent Client in any probate proceeding. However, the Client expressly authorizes Attorneys to engage probate counsel as may be necessary for Attorneys’ sole discretion. Client agrees that any fees paid or charged by probate counsel will be paid by Client in addition to Attorneys' contingency fee described in paragraph two (2) above. Client agrees that fees for probate counsel may be advanced by Attorneys, and Client agrees that Attorneys are to be repaid and reimbursed for any fees paid to probate counsel pursuant to paragraph four (4) of this contract. If Attorneys do not advance payment of fees to probate counsel, Client authorizes Attorneys to pay directly from the recovery of proceeds the fees charged by probate counsel pursuant to paragraph four (4) of this contract.
9)ASSIGNMENT OF INTEREST AND ATTORNEYS’ LIEN. Client hereby sells, transfers, assigns, and conveys to Attorneys a portion of any claim, settlement, or lawsuit to pay the costs and expenses itemized in paragraph four (4) above. Attorneys are given a lien on the claim or cause of action, on any sum recovered by way of settlement, and on any judgment that may be recovered, for the sum and share mentioned above as Attorneys’ fee. Client further agrees that Attorneys shall have all general, possessory, or retaining liens and all special or charging liens known to the common law.
10)NO REPRESENTATIONS MADE.Client agrees that Attorneys have made no representations, promises, or guarantees as to the outcome or settlement of this claim.
11)ATTORNEYS’ RESPONSIBILITIES.Attorneys agree to represent Client at all hearings, trials, mediations, or settlement conferences in the above-referenced matter and any related matter necessary to resolve the pending controversy. Attorneys will communicate all settlement offers with Client and will not settle or compromise any of Client’s claims without Client’s authorization.
12)CLIENT’S RESPONSIBILITIES.Attorneys and Client agree that client will have the following duties in pursuit of a resolution of Client’s claims:
a. To cooperate fully reasonable requests of Attorneys in furtherance of their claims and causes of action.
b. Appearing at court hearings, trials, depositions, mediations, and attorney/client conferences. In this regard, Attorneys agree to attempt to schedule any of the above events at times convenient to Client whenever possible. Client acknowledges; however, it may not be possible to schedule trial dates or other events on dates that are convenient to Client’s schedule; and
c. Not communicating with any opposing parties or that party’s attorney, agents, employees, or insurers without the knowledge, permission, and supervision of Attorneys.
13)ASSOCIATION OF CO-COUNSEL.Client agrees that Attorney may associate additional lawyers to assist in representing Client and prosecuting Client’s claims. The association of additional attorneys will not increase the total fee owed by Client.
14) TERMINATION BY CLIENT.Client has the right to terminate Attorneys “for cause” in the event Attorneys insist on pursuing a course of conduct which is unethical or contrary to law.
IF YOU DESIRE TO DISMISS ATTORNEYS AND RETAIN OTHER COUNSEL AFTER THE SIGNING OF THIS CONTRACT FOR REASONS OTHER THAN “FOR CAUSE”, IT IS UNDERSTOOD THAT THE TERMS OF THIS CONTRACT PERTAINING TO THE ATTORNEYS’ FEES PERCENTAGE SHALL REMAIN IN FULL FORCE AND EFFECT AND THAT ATTORNEYS RETAIN A LIEN ON ALL PROCEEDS TO THE FULL EXTENT OF THIS CONTRACT.
15) TERMINATION/WITHDRAWAL BY ATTORNEYS.Attorneys may withdraw from Client’s representation if Client insists on pursuing a course of conduct in which, in Attorneys’ opinion, is illegal or unethical; or if Client insists on pursuing a course of conduct which is contrary to Attorneys’ advice even if not illegal. Client understands and agrees that Attorneys will investigate Client’s claim on a continuing basis, and should Attorneys determine that if for any reason Attorneys no longer desire to proceed with the handling of Client’s claim, Attorneys shall have the right to cancel and withdraw from this contract. Attorneys may elect not to appeal a case and nothing in this contract shall require Attorneys to appeal a case under any circumstances.
16) REJECTION OF SETTLEMENT OFFERS.Attorneys agree that no claim or portion of a claim will be compromised or settled without the express authorization of Client. If Attorneys form a reasonable conclusion that a settlement offer is valid and reasonable under the facts then existing and Client rejects such offer, Attorneys reserve the right to withdraw from representing Client under the following procedure:
a. Notification of settlement offer and opinion letter; Attorneys shall send an opinion letter describing:
- i. The state of the facts.
- ii. The amount of any offer or offers to settle the case then in existence and the time limitations by the offering party.
- iii. The financial status of the parties and an estimated financial result under the existing offers; and
- iv. Attorneys’ opinion concerning the reasonableness of the offer.
b. Upon receipt of the letter, Client may obtain a second opinion form another attorney with a similar practice and experience authorizing that attorney to discuss this case with Attorneys. The cost of any second opinion shall be borne by Client.
c. Unless the second opinion materially differs from the opinion of Attorneys, Attorneys may withdraw pursuant to the withdrawal provisions of this contract if Client fails and refuses to follow Attorneys’ advice concerning the existing settlement offers. If the second opinion materially differs, Attorneys will have the option of continuing to represent Client, unless Attorneys and Client agree otherwise in writing.
17) TEXAS LAW TO APPLY.This contract shall be construed under and governed by the laws of the State of Texas. Any suit between the parties to this contract regarding anything covered by this contract will be filed in a Court of competent jurisdiction in Harris County, Texas.
18) ARBITRATION.ANY AND ALL DISPUTES, CONTROVERSIES, CLAIMS OR DEMANDS ARISING OUT OF OR RELATING TO THIS CONTRACT OR ANY PROVISION HEREOF, THE PROVIDING OF SERVICES BY ATTORNEYS TO CLIENT OR IN ANY WAY RELATING TO THE RELATIONSHIP BETWEEN ATTORNEYS AND CLIENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, AT LAWOR IN EQUITY, FOR DAMAGES OR ANY OTHER RELIEF, SHALL BE RESOLVED BY BINDING ARBITRATION PURSUANT TO THE TEXAS GENERAL ARBITRATION STATUTE IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES THEN IN EFFECT WITH THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN HARRIS COUNTY, TEXAS. THIS ARBITRATION PROVISION SHALL BE ENFORCEABLE IN EITHER FEDERAL OR STATE COURT IN HARRIS COUNTY, TEXAS PURSUANT TO THE SUBSTANTIVE LAWS ESTABLISHED BY THE TEXAS GENERAL ARBITRATION STATUTE. ANY PARTY TO ANY AWARD RENDERED IN SUCH ARBITRATION PROCEEDING MAY SEEK A JUDGMENT UPON THE AWARD AND THAT JUDGMENT MAY BE ENTERED BY ANY FEDERAL OR STATE COURT IN HARRIS COUNTY, TEXAS, HAVING JURISDICTION.
19) PARTIES BOUND.This contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns.
20) LEGAL CONSTRUCTION.In case any provision contained in this contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
21) DESTRUCTION OF RECORDS OF CLIENTS.The attorneys are authorized by the Client to destroy Client’s records/documents/file on the 365th day following the closing of the file by the Attorneys. Should Client desire any of these documents, the Client must request same in writing by certified mail, return receipt requested.
22) PRIOR AGREEMENTS SUPERSEDED. This agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreement between the parties.
By signing below, Client certifies and acknowledges that he/she has entered this contract with Attorneys freely and without coercion, duress, fraud, or intimidation. Client affirms that he/she sought the services of Attorneys and that neither Attorneys nor anyone acting on behalf of Attorneys contacted or solicited Client. Client further certifies and acknowledges that he/she has read all pages of this contract and that he/she has voluntarily entered into this contract fully aware of its terms and conditions.
THIS CONTRACT IS SUBJECT TO ARBITRATION
UNDER THE TEXAS GENERAL ARBITRATION STATUTE
