LEGAL SERVICES FEE AGREEMENT
Read this agreement carefully to understand the services QDRO Benefits Law Group (“QB” or “Attorney”) will provide in assisting you with division of your retirement benefits as part of a dissolution of marriage also called a divorce. QDRO Benefits Law Group (“Attorney” or “we”) and [PARTY COMPLETING FORM] (“Client” or “you”) hereby agree that Attorney will provide legal services to Client on the terms set forth below.
This Agreement will not take effect, and Attorney will have no obligation to provide legal services, until: (a) Client signs this Agreement; (b) Client pays the flat fee amounts for the services Client wants Attorney to perform in connection with Client’s matter; and (c) Attorney acknowledges acceptance of representation by counter-signing this Agreement and returning a fully executed copy to Client. Upon satisfaction of these conditions, this Agreement will be deemed to take effect as of the date Attorney signs this Agreement. You will receive all communications from attorney by email, so please check your spam folder to make sure that you are receiving our communications with you.
2. SCOPE OF SERVICES AND ATTORNEY’S DUTIES
Client hires Attorney to assist you in connection one or more of the following services:
(a) Draft QDRO -- Flat Fee: $1,175 per QDRO
Includes Explanation Memo, Obtain plan preapproval (if applies), Collect the parties’ signatures, File the QDRO with the court and serve on the plan, Draft judgment language upon request. Excludes Military/Federal plans.
(b) Draft Military DRO -- Flat Fee: $2,700 per QDRO
Includes Explanation Memo, Handle required calculations, Draft required military forms, Collect the parties’ signatures, File the QDRO with the court and serve on the military, Draft judgment language upon request.
(c) Draft Federal Employee DRO -- Flat Fee: $1,500 per QDRO
Includes Explanation Memo, Collect the parties’ signatures, File the QDRO with the court and serve on OMP, Draft judgment language upon request.
(a) Initial Expert Review -- Flat Fee: $350 per QDRO
Includes Attorney’s review of the QDRO prepared for accuracy against any divorce documents and consultation limited to 30 minutes upon request (if retained as neutral expert both parties and/or counsel must be on call). In almost all cases, the initial expert review is all that is needed; however, if expert review requires more time, then an additional hourly retention will be necessary.
(b) Hourly Expert Review -- Hourly Fee: $500/hour ($1,500 minimum)
Includes Attorney providing Client with legal advice regarding the division of retirement benefits including but not limited to advising, reviewing, editing, and/or drafting any documents beyond of any Flat Fee Services. Also includes any Attorney appearances in court, at mediation, at a deposition and/or providing expert testimony.
(a) Joinder or Notice Of Adverse Interest – Flat Fee $400 per pleading
Includes Draft joinder pleadings (CA public plans required) or notice of adverse interest, Collect the parties’ signatures, File document(s) with the court and serve on the parties and the plan (as applicable).
(b) Expedited Services – Flat Fee $500 per QDRO
Includes providing services expedited ahead of other clients.
Attorney will not appear in Court or otherwise communicate with any Court, retirement plan, or any other person without Client selecting those services and paying for them in advance. Attorney will provide those legal services reasonably required to represent Client. Attorney will take reasonable steps to keep Client informed of progress and to respond to Client’s inquiries. If additional services are required, a separate written agreement for any additional services not described above will be required. Attorney is retained by Client only in the matter described above.
3. ATTORNEYS FEES FOR FLAT FEE SERVICES
Client agrees to pay a flat fee for Attorney’s services selected by Client under this Agreement in the amounts set forth next to each selected flat fee service. This fee is fixed and constitutes complete payment for the performance of services under this Agreement and does not depend on the amount of work performed. Client acknowledges that this fee is negotiated and is not set by law. The total fee shall be paid by Client in advance of the services to be rendered. The fee will be deposited into the Attorney’s operating account.
Attorney hereby discloses to Client that Client has the right to (1) require that the flat fee be deposited into Attorney’s Client Trust Account until the fee is earned; and (2) a refund of any amount of the fee that has not been earned in the event the representation is terminated or the services for which the flat fee has been paid are not completed.
4. ATTORNEYS FEES FOR HOURLY NON-FLAT FEE SERVICES
Client agrees to pay by the hour at Attorney’s rates as set forth below for all time spent on Client’s matter by Attorney and Attorney’s legal personnel. Current hourly rates for legal personnel are as follows:
Partners/Of Counsel $500/hour
Case Managers $70/hour
Law clerks $40/hour
The rates on this schedule are subject to change on 30 days written notice to Client. If Client declines to pay increased rates, Attorney will have the right to withdraw as attorney for Client if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law.
The time charged will include, but is not limited to, the time Attorney spends on telephone calls, e-mails and other electronic communications relating to Client’s matter, including calls and e-mails with Client and other parties and attorneys. The legal personnel assigned to Client’s matter may confer among themselves about the matter, as required and appropriate. When they do confer, each person will charge for the time expended, as long as the work done is reasonably necessary and not duplicative. Likewise, if more than one of the legal personnel attends a meeting or other proceeding, each will charge for the time spent. Time is billed in minimum increments of six-tenth’s (.6 of an hour. Attorney will charge for waiting time. Notwithstanding the foregoing, Client agrees that Attorney will require a minimum of 30 minutes (.5 hour) for review of Client’s matter and Client agrees to pay Attorney for such minimum time, and the fee for which will be earned in full and no portion of this fee will be refunded once material services have been performed.
If Client, or through counsel if represented, wishes to examine Attorney in court or in a deposition or similar proceeding or requests Attorney’s presence at a mediation, in Court or any other meeting regarding the case, the Client will give the Attorney no less than 30 days advance written notice, and shall allow Attorney to participate in setting such dates. Further, the Client shall pre-pay Attorney’s estimated fees to prepare for, travel to and attend the aforementioned proceedings. If Attorney’s actual fees and costs for such proceedings exceed those estimated, the Client requesting the examination shall promptly pay the difference upon request. Any amount advanced in excess of the applicable fee shall be promptly refunded. All fees paid under this subparagraph are without prejudice and subject to the Court¹s reallocation of such fees between the parties. Travel time shall be billed at Attorney’s hourly rate.
5. DEPOSIT REQUIRED FOR NON FLAT FEE OR HOURLY SERVICES
If Hourly Expert Review applies where the services are to be billed on an hourly basis you must provide Attorney with the retainer deposit outlined above deposit. Attorney may request an additional deposit upon Attorneys’ further review of Client’s matter at any time during retention. Attorney will hold the deposit in Attorney’s Client Trust Account and apply it to each bill when rendered by Attorney. Client will pay any additional balance in an amount necessary to return the deposited amount to the amount initially requested for Client’s matter. At the conclusion of the matter, the deposit will be applied to the final bill, in which event Client will be responsible for any remaining amount due over and above the deposit. If no amount remains due after the deposited funds have been applied to the final invoice, and should any deposited funds remain, Client is entitled to and will have those funds returned in a timely manner.
Client agrees that Attorney’s right to recover fees and costs from the deposit or any subsequent deposit held in Attorney’s Client Trust Account becomes fixed five (5) days after the date a bill is sent to Client. Client authorizes Attorney to withdraw the funds from Attorney’s Client Trust Account to pay Attorney’s fees and costs five (5) calendar days after the date a bill is sent to Client. If Attorney receives a written objection from Client within five (5) days of sending the bill, Attorney’s right to withdraw the amount that is identified in the objection shall be deemed to be disputed, and Attorney will not withdraw the disputed fees and/or costs from the Client Trust Account until the dispute is resolved. If Attorney receives an objection from Client more than five (5) days after the date the bill is sent and after the funds have been withdrawn, Attorney will not be required to redeposit the disputed fees and/or costs into the Client Trust Account during the pendency of the dispute. Client agrees to pay all deposits after the initial deposit within ten (10) days of Attorney’s demand. In the event there is any money from any deposit remaining in Attorney’s Client Trust Account after Attorney’s final bill is satisfied, that money will be promptly refunded to Client. Whenever the deposit is exhausted, Attorney reserves the right to demand further deposit.
6. BILLING PRACTICES
Attorney will send Client periodic bills for fees and costs incurred. Each bill will be payable within fifteen days of its emailing date. Client may request a bill at intervals of no less than 30 days. If Client so requests, Attorney will provide one within 10 days. Bills for the fee portion of the bill will include the amount, rate, basis for calculation, or other method of determination of the Attorney’s fees. Bills for the cost and expense portion of the bill will clearly identify the costs and expenses incurred and the amount of the costs and expenses. Client agrees to promptly review all bills rendered by Attorney and to promptly communicate any objections, questions, or concerns about their contents.
7. COSTS AND OTHER CHARGES
Other than for services provided on a flat fee or non-hourly basis the Attorney may incur various costs and expenses in performing legal services under this Agreement. Client agrees to pay for all costs, disbursements and expenses in addition to the hourly fees. The costs and expenses commonly include notary fees, long distance telephone charges, messenger and other delivery fees, postage, outside photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, translator/interpreter fees, consultants’ fees and/or special master fees and other similar items. The foregoing external costs and expenses will be charged at Attorney’s cost. Internal charges are billed at the following rates: (1) mileage – IRS Standard Mileage Rate; (2) in-house printing and photocopying – $.25 cents per page; (3) facsimile charges – $.75 per page; (4) postage at costs; and (5) computerized legal research at cost. Attorney will obtain Client’s consent before incurring any costs in excess of $500.00.
8. CLIENT’S DUTIES
By entering into this Agreement, you are agreeing that Attorney and you will utilize the QC website to communicate and prepare the documents for the services you have selected unless Attorney provides notice otherwise. You agree to timely provide the information requested by Attorney utilizing the QC website and timely respond to Attorney communications to you including Attorney’s requests to enter or provide additional information into the QC website database that Attorney may require to perform the Services including but not limited to (i) any requested documents and information reasonably available to Client, (ii) any requested written authorization directing third parties to provide such documents, records and/or information, or (iii) additional discovery requests. You agree to be truthful with Attorney and not withhold information or delay responding to requests for information. Further you agree to cooperate, to keep Attorney informed of any information or developments which may come to Client’s attention, to abide by this Agreement, to pay Attorney’s bills on time, and to keep Attorney advised of Client’s address, telephone number and whereabouts. Client will assist Attorney by timely providing necessary information and documents. Client agrees to generally to cooperate fully with Attorney in all matters related to the preparation of the documents necessary to apportion the Clients or the Client’s (former) spouse’s retirement benefits as part of a divorce or dissolution of marriage.
9. INTEREST CHARGES
If a bill is not paid when due, interest will be charged on the principal balance (consisting of any unpaid fees, costs, and/or expenses) shown on the bill. Interest will be calculated by multiplying the unpaid balance by the periodic rate of .833% per month (TEN PERCENT [10%] PER ANNUM). The unpaid balance will bear interest until paid.
10. CONSENT TO USE OF E-MAIL, CLOUD SERVICES AND QDROCOUNSEL WEBSITE
In order to provide Client with efficient and convenient legal services, Attorney will frequently communicate and transmit documents using e-mail. Because e-mail continues to evolve, there may be risks communicating in this manner, including risks related to confidentiality and security. By entering into this Agreement, Client is consenting to such e-mail transmissions with Client and Client’s representatives and agents.
In addition, Attorney uses a cloud computing service with servers located in a facility other than Attorney’s office. Most of Attorney’s electronic data, including emails and documents, are stored in this manner. By entering into this Agreement, Client understands and consents to having communications, documents and information pertinent to the Client’s matter stored through such a cloud-based service.
Finally, Attorney is drafting, reviewing and performing Client’s services utilizing QDROCOUNSEL, LLC’s cloud-based DRO drafting platform located at www.qdrocounsel.com (“QC website”) to generate the documents related to Client’s matter and to send documents to Client for review and to transmit completed documents to retirement plans. Most of Attorney’s and Client’s electronic data, including emails and documents, are stored in this manner. By entering into this Agreement, Client understands and consents to having communications, documents and information pertinent to the Client’s matter stored on QDROCOUNSEL, LLC’s website. You also agree that Attorney may share such information and documents as are reasonably necessary for Attorney to provide the legal services you have selected with QDROCOUNSEL and you understand that such communications are not protected by the attorney-client and attorney work product privileges.
11. TERMININATION WITHDRAWAL
If Client is one party, Client may discharge Attorney at any time. Attorney may withdraw with Client’s consent or for good cause or if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law. Among the circumstances under which Attorney may withdraw are: (a) with the consent of Client; (b) Client’s conduct renders it unreasonably difficult for the Attorney to carry out the employment effectively; and/or (c) Client fails to pay Attorney’s fees or costs as required by this Agreement. Notwithstanding the discharge, Client will remain obligated to pay Attorney at the agreed rates for all services provided and to reimburse Attorney for all costs advanced.
If Attorney retained as neutral expert by both parties, each party and Attorney have the right to terminate this Agreement at any time, without cause, by providing written notice stating the effective date of such termination. If applicable, Attorney shall notify the Court and parties and/or counsel for the parties in writing of the fact of Attorney’s termination and may, but shall not be required to, include in this notice any information that Attorney feels might be helpful to the Court or the parties in accomplishing the purpose of this Agreement. However, to facilitate the free exchange of information, Attorney shall endeavor not to divulge to the Court voluntarily any information that would be protected against disclosure under the rules of evidence relating to settlement negotiations. The termination of Attorney’s Services will not affect the obligation to pay for all services rendered (and costs incurred) as provided herein, up to the effective date of the termination.
12. CONCLUSION OF SERVICES
When Attorney’s services conclude, whether by completing the services covered by this Agreement, or by discharge or withdrawal, all unpaid charges for fees or costs will be due and payable immediately. Client may have access to Client’s case file at Attorney’s office at any reasonable time. At the end of the engagement, Client may request the return of Client’s case file. If Client has not requested the return of Client’s file, and to the extent Attorney has not otherwise delivered it or disposed of it consistent with Client’s directions, Attorney will retain the case file for a period of three (3) years after which Attorney is authorized by this agreement to have the case file destroyed. If Client would like Attorney to maintain Client’s case file for more than three (3) years after the conclusion of Attorney’s services for Client on a given matter, a separate written agreement must be made between Attorney and Client, which agreement may provide for Client to bear the cost of maintaining the file. In the event Client requests that Attorney transfer possession of Client’s case file to Client or a third party, Attorney is authorized to retain copies of the case file. The case file includes Client papers and property as defined in Rule 3-700(D)(1) of the California Rules of Professional Conduct.
Client understands that any documents or other written materials that are provided to Attorney shall become the property of Attorney and shall be disposed of in the discretion of Attorney upon the conclusion of Attorney’s Services. For this reason, Client agrees not to provide Attorney with any original documents, or any other materials that should be protected against loss. Wherever feasible all such information should be provided to Attorney in electronic format (e.g., PDF or Word files).
13. DISCLAIMER OF GUARANTEE AND ESTIMATES
Nothing in this Agreement and nothing in Attorney’s statements to Client will be construed as a promise or guarantee about the outcome of the matter. Attorney makes no such promises or guarantees. Attorney’s comments about the outcome of the matter are expressions of opinion only, are neither promises nor guarantees, and will not be construed as promises or guarantees. Any deposits made by Client, or estimate of fees given by Attorney, are not a representation of a flat fee (unless Client selected a flat fee service to be provided by Attorney) and will not be a limitation on fees or a guarantee that fees and costs will not exceed the amount of the deposit or estimate. Actual fees may vary significantly from estimates given.
14. PROFESSIONAL LIABILITY INSURANCE DISCLOSURE
Pursuant to California Rule of Professional Conduct 1.4.2(a), I am informing you in writing that I have professional liability insurance.
15. SERVICES OUTSIDE STATE LICENSED
Attorney is admitted to practice law in the following state(s): California (“Attorney’s state”). If Client’s matter is outside of Attorney’s state, pursuant to Rule 5.5 “Unauthorized Practice of Law; Multijurisdictional Practice of Law” of the ABA Model Rules of Professional Conduct, Attorney’s services are strictly limited to federal law. Attorney shall NOT provide any legal services related to Client’s state law, including but not limited to the how a retirement plan should be divided according to a state’s marital or community property law or state law subpoena on a retirement plan.
16. COMMUNICATIONS BY ATTORNEY TO CLIENT
If Client is one party, a communication between Attorney and Client is deemed to be in writing if it is transmitted electronically (e.g., by email or fax) or in hard copy delivered in person, by U.S. Mail, or by accepted carrier (e.g., FedEx, UPS). If Client is represented by an attorney, Attorney’s communication with said counsel shall be treated as a communication with Client.
If Attorney is retained as neutral expert by both parties, a communication between Attorney and Client is deemed to be in writing if it is transmitted electronically (e.g., by email or fax) or in hard copy delivered in person, by U.S. Mail, or by accepted carrier (e.g., FedEx, UPS). If Client is represented by an attorney, Attorney’s communication with said counsel shall be treated as a communication with Client. Both parties agree to the following when Attorney is retained as a neutral pension expert (“neutral expert”):
(a) If the Attorney is licensed to practice law in your state, the parties either individually or through their respective attorneys agree to stipulate to an order appointing Attorney as the Court’s neutral expert. The order appointing Attorney as the expert may be filed with the court before any domestic relations order(s) are filed, concurrent with filing the domestic relations order(s) or incorporated as part of the domestic relations order(s). Attorney will NOT sign any domestic relations order but Attorney’s heading as the Court’s neutral expert will be on the first page of each order. If for any reason after retention no document is filed with the Court officially appointing Attorney as the Court’s neutral expert, the parties agree that Attorney performed services as the parties’ neutral expert in the same capacity as if Attorney had been retained as the Court's neutral expert.
(b) In accordance with Paragraph 15 above, if the Attorney is not licensed to practice the state law in your state, the parties either individually or through their respective attorneys agree that Attorney performed services as the parties’ neutral pension expert in the same capacity as if Attorney had been retained as the Court's neutral pension expert for the services retained excepting any state law (hereinafter a “Deemed Neutral Expert”).
(c) The parties understand that as a Court appointed neutral expert or as a Deemed Neutral Expert, Attorney cannot and does not represent either of the parties. That is, the Attorney does not represent either of the parties. The parties may wish to seek advice from their own legal counsel about this matter and Attorney's legal services to be provided. When Attorney is retained by both parties as a neutral expert or a Deemed Neutral Expert, the following shall apply: (1) Attorney shall have the right to have contact with any party, party’s representative or counsel ex parte. (2) Attorney shall keep notes of any ex parte contact which are not otherwise evidenced by a writing. (3) All written communications sent to Attorney from one party or from Attorney to one party shall be copied to the other party upon request. (4) The parties each understand and agree that in no event shall any communication between Attorney and a party (or Attorney’s notes of same) be privileged or confidential as between the parties.
(d) If one of the parties, either directly or through that party’s attorney, initially retained Attorney as that party’s attorney for legal advice on pension division issues and now has been retained as a neutral expert by both parties, the parties acknowledge the following: (1) The party that initially retained Attorney wishes to change representation to the form of a neutral expert and terminate any representation of Attorney as an attorney representing only that party; (2) The party that did not initially retain Attorney does not object to this change; (3) By signing this Agreement, the party, either directly or through that party’s attorney, that initially retained Attorney acknowledges that any prior retainer agreement with Attorney as that party’s attorney, is hereby terminated; (4) By signing this Agreement, both parties waive any conflict or potential conflict with said prior representation of one of the parties, acknowledge that any communications from said prior representation are not privileged, and agree to representation in the form of a neutral expert as described hereinabove.
17. NO TAX ADVICE
Attorney has not been retained to provide Client with any tax advice concerning any of the services described herein. Any documents prepared by Attorney may have specific tax ramifications. To be sure Client understands and is certain of all the potential tax consequences, Client should consult with tax advisors regarding these matters. Tax advice includes but is not limited to advice regarding nonqualified plans and whether a plan is properly funded or otherwise complied with the requirements for that plan under the Internal Revenue Code.
18. OTHER LIMITATIONS
No other legal services are covered by this Agreement. Attorney has not been retained to evaluate any previous representation which may have been provided by other professionals retained by or for Client, and Attorney shall have no responsibility for determining whether any actions by such individuals have met the standards of their respective profession. Attorney has not been retained to provide any opinion with respect to any alleged professional negligence of any other attorney or professional in this matter.
19. DISCLOSURE & CONSENT-THIRD PARTY PAYOR PAYMENT OF FEES & COSTS
Under California Rules of Professional Conduct 1.8.6 an attorney may not accept compensation from one who is not the client without: (1) assuring the arrangement does not interfere with the attorney’s independence or professional judgment on behalf of the client or with the attorney-client relationship, (2) providing for protection of client confidential information and secrets under Business & Professions Code Section 6068(e), (3) providing the client with a written disclosure of the relevant circumstances and the actual and foreseeable adverse consequences arising from the arrangement and (4) obtaining the client’s informed written consent. The potential adverse consequences of having a Third Party Payor responsible for payment of attorney’s fees and costs is that the Third Party Payor may: (1) attempt to interfere with the attorney-client relationship between the attorney and client, (2) attempt to interfere with the attorney’s exercise of independent professional judgment on behalf of the client, or (3) seek access to client confidential information or secrets contrary to the wishes of the client.
If there is a Third Party Payor, Client must notify Attorney and have the Third Party Payor sign this Agreement such that the Third Party Payor agrees to pay for all legal services which attorney provides to client and costs incurred in the representation of Client. Client will remain responsible for and will pay attorney’s bills in the event that third party payor fails for any reason to pay attorney’s bills as they become due. If a refund is due at the conclusion of the representation, the refund will be paid to the person or entity who paid the fees and costs.
The Third Party Payor acknowledges this agreement to pay for Attorney’s fees and costs does not make Third Party Payor a client of Attorney and that an attorney-client relationship will exist only between Attorney and Client. Third Party Payor further agrees that they will not interfere with the attorney-client relationship and will not interfere with the Attorney’s exercise of independent professional judgment on behalf of the client. In furtherance of the independent nature of the attorney-client relationship, Third Party Payor acknowledges that it has no right to direct Attorney’s handling of Client’s matter. Third Party Payor acknowledges that Client has asked Third Party Payor to participate in consultations with Attorney and may continue to do so with the understanding that Third Party Payor’s involvement in any communications with Attorney is solely to further the interests of Client. Communications involving Third Party Payor, are therefore intended to remain confidential and privileged as against persons or entities other than Attorney, Client and Third Party Payor. It is further understood and agreed that Attorney may share confidential information with Third Party Payor except when Client directs Attorney to keep information confidential. To the extent Client desires communications and information to remain confidential, Third Party Payor agrees that payment and receipt of Client confidential information or secrets shall not in any way limit Client’s confidentiality rights or waive any privilege.
By signing this Agreement, Client and Third Party Payor acknowledge they have: (1) read and fully understand this disclosure and consent form, (2) agreed that Attorney may accept compensation from Third Party Payor to provide legal services to Client under the terms and conditions of this Agreement and (3) that [insert name or entity] has been represented and advised by counsel in entering into this Agreement or has waived their right to such representation and advice.
20. ARBITRATION OF ALL DISPUTES INCLUDING CLAIMS OF MALPRACTICE
(a) Any dispute between the parties [Attorney and Client] regarding the construction, application or performance of any services under this Agreement, and any claim arising out of or relating to this Agreement or its breach, including, without limitation, claims for breach of contract, professional negligence, breach of fiduciary duty, misrepresentation, fraud and disputes regarding attorney fees and/or costs charged under this Agreement (except as provided in Paragraph (b) below) shall be submitted to binding arbitration upon the written request of one party after the service of that request on the other party. The parties shall appoint one person to hear and determine the dispute. The arbitration provider shall be before JAMS located in Los Angeles California whose rules shall govern the arbitration. If the parties cannot agree on the selection of an arbitrator, a party may petition the Superior Court of Los Angeles County and the procedures set forth in Code of Civil Procedure Section 1281.6 for Appointment of Arbitrators shall apply. The court will choose an impartial arbitrator and the court’s decision shall be final and conclusive on all parties. Attorney and Client shall each have the right of discovery in connection with any arbitration proceeding in accordance with Code of Civil Procedure Section 1283.05. Each party shall bear its own costs, expenses, attorney’s fees and an equal share of the arbitrators’ and administrative fees. The venue for the arbitration and any post-award proceeding to confirm, correct or vacate the award shall be in the Central District of the Superior Court located in Los Angeles County, California. Client and Attorney confirm that they have read and understand subparagraphs A above, and voluntarily agree to binding arbitration. In doing so, Client and Attorney voluntarily give up important constitutional rights to trial by judge or jury, as well as rights to appeal. Client may consult with an independent lawyer of Client’s choice to review these arbitration provisions, and this entire agreement, prior to signing this Agreement.
(b) Notwithstanding paragraph a above, the parties acknowledge that in any dispute over attorney’s fees, costs or both subject to the jurisdiction of the State of California over attorney’s fees, charges, costs or expenses, Client has the right to elect arbitration pursuant to procedures as set forth in California Business and Professions Code Sections 6200-6206 (the Mandatory Fee Arbitration Act). If, after receiving a Notice of Client’s Right to Fee Arbitration, Client does not elect to proceed under the Mandatory Fee Arbitration Act procedures by failing to file a request for fee arbitration within 30 days, any dispute over fees, charges, costs or expenses, will be resolved by binding arbitration as provided in the previous paragraph 1. Arbitration pursuant to the Mandatory Fee Arbitration Act is non-binding unless the parties agree in writing, after the dispute has arisen, to be bound by the arbitration award. The Mandatory Fee Arbitration Act procedures permit a court trial after non-binding arbitration, or a subsequent binding contractual arbitration if the parties have agreed to binding arbitration, if either party rejects the award within 30 days after the award is mailed to the parties.
(c) Attorney and Client agree to try to settle all disputes between them through private mediation before initiating any arbitration, litigation or other dispute resolution procedure. The disputes which are subject to mediation include without limitation the following: claims regarding the construction, application or performance of services, claims for breach of contract, professional negligence, breach of fiduciary duty, misrepresentation, fraud and attorney’s fees and costs. Any party to the agreement may initiate mediation through service of a written demand in person or by mail or, if agreed to by the parties in advance, by e-mail to the opposing party. The mediation session will occur at a time mutually agreed upon by the parties in consultation with a mutually selected mediator, though no later than days after the date of services of the initial notice, unless otherwise agreed by the parties and mediator. Each party shall bear its own fees and costs for the mediation. Under Evidence Code section 1129(a), Attorney is required to provide notice and have Client acknowledge certain confidentiality restrictions prior to participating in mediation. Attorney will provide Client with the Notice and Acknowledgement form.
21. MEDIATION DISCLOSURE NOTIFICATION AND ACKNOWLEDGEMENT NEUTRAL EXPERT/MEDIATION
To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:
• All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.
• Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
• A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.
• A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.
This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.
Client understands that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.
NOTE: This disclosure and signed acknowledgement does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
22. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties.
23. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY
If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect.
24. MODIFICATION BY SUBSEQUENT AGREEMENT
This Agreement may be modified by subsequent agreement of the parties only by an instrument in writing signed by both of them.
25. GOVERNING LAW
This Agreement and any other Agreements entered into in connection herewith shall be interpreted and construed under and in accordance with the laws of the State of California.
26. EFFECTIVE DATE
This Agreement will govern all legal services performed by Attorney on behalf of Client commencing with the date Attorney first performed services. The date the Agreement is deemed effective herein is for reference only. Even if this Agreement does not take effect, Client will be obligated to pay Attorney the reasonable value of any services Attorney may have performed for Client.
This Agreement may be executed in multiple identical counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same Agreement.
THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE ATTORNEY FIRST PROVIDED SERVICES. IF MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES TO BE LIABLE, JOINTLY AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS AGREEMENT. CLIENT WILL RECEIVE A FULLY EXECUTED COPY OF THIS AGREEMENT.