As updated from time-to-time for billing rates and following actual notice to client. This agreement forms the basis of work for our clients.
As with any type of legal representation, advanced financial structuring or sophisticated business planning, no one can provide guaranties regarding the outcome of any matter. We do commit, however, to use reasonable care and put forth a diligent effort on your behalf. We also commit to keep you informed as to the status of your representation and to provide you, where possible, with available alternative courses of action.
The Feldman Law Firm LLP (the "Firm") and Capstone Associated Services, Ltd. ("Capstone") both provide open communication regarding the status of your affairs. Access to persons knowledgeable about your legal and insurance affairs will always be available. Your phone calls will be returned promptly. Every attempt will be made to respond to emergency situations. Throughout our engagement, copies of all significant documentation relating to your legal affairs will be provided to you on a timely basis. The Firm's and Capstone's files of your matters are available for your inspection.
As to legal services, you have agreed that attorney Stewart Feldman, or another attorney in the Firm, has primary responsibility for the supervision of your legal services under the parameters of any engagement letter, and recognize that other attorneys in the Firm will provide services to you from time-to-time. Should you have any problem communicating with anyone, or should you have any concerns regarding attention to your legal affairs, please contact Mr. Feldman immediately. Capstone's president should be similarly contacted if there is a communication problem with regard to Capstone's work.
For any additional work beyond that described in a fixed fee engagement letter with either Capstone or the Firm, whether requested or necessitated by you, you will receive a regular statement for such attorney's fees and expenses incurred in your representation. Other than for fixed fee services, each invoice will be itemized setting forth specific work performed and expenses incurred. The Firm bases its billing on hourly rates (customary hourly rates range from $350 - $595 for attorneys with paralegal staff at $140 - $225 per hour). Capstone's rates range from $125 - $275 per hour. Although hourly rates are the basis for billings, we review each bill and the actual amount billed may be greater or less than that derived from the hourly rates, such adjustment based upon the novelty and complexity of the issues involved, the skill required to provide proper legal representation, the magnitude of the matter, the results achieved, the time frame required for handling the matter and any other circumstances which have a material and direct impact on the reasonable value of the legal services performed. From time-to-time, billing rates are modified to reflect a particular expertise and the changing cost of providing legal services. We will provide you, at any time upon your request, a current list of hourly rates. Note that all retainers, deposits and payments are deemed fully earned when paid and are for the reservation of the organization's time to do the called for work, in addition to the obligation to do such work.
Expenses advanced will be billed with the legal fee's invoice for items such as photocopy charges, fax charges, delivery fees, filing fees, certified mail charges, travel expenses, court costs, deposition costs, electronic research services, secretarial overtime (when necessary to comply with your time requirements) and other expenses. You authorize us to retain and direct such other persons and companies to render services on your behalf as may be necessary and you further agree to reimburse us at the time of our invoice for any expenses thereby incurred. Of course, we will confer with you before incurring material expenses on your behalf.
All invoices due to the Firm or Capstone are due upon receipt. If an invoice is not paid within twenty (20) days from the invoice date, the amount due shall accrue interest at the rate of 18% per annum from the invoice date until paid (unless that rate exceeds the maximum legal rate, in which case the maximum legal rate of interest shall be charged). Should Capstone or the Firm be required to take formal action to recover any amounts owed it under your engagement letter agreement or any invoice, you agree that the Firm will be entitled to recover reasonable attorneys' fees and costs. Although we may provide services to your trusts, corporations, partnerships, and/or other entities, we look as well to the owners of our clients to personally insure payment of all legal fees for work undertaken and each of the owners of our clients agrees to assume personal liability for these sums.
You understand and acknowledge that, although we will endeavor to provide you with recommendations and alternatives based on our best judgment, there can be no guarantee of successful consummation of any transaction, that each decision must be your own, and that the ultimate responsibility of each decision must necessarily be yours. Accordingly, you may incur substantial fees and other expenses in connection with matters we will handle on your behalf, even though you may not achieve your desired result. Unless expressly stated otherwise in writing, any U.S. federal tax advice provided by the Firm or its lawyers, is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.
Additionally, please note that The Patient Protection and Affordable Care Act (H.R. 3590), signed into law on March 23, 2010, codifies a federal income tax doctrine known as the "economic substance doctrine." Under this legislation, a transaction has economic substance only if the taxpayer's economic position (other than its federal tax position) changed in a meaningful way and the taxpayer had a substantial purpose (other than a federal tax purpose) for engaging in the transaction. This law states that profit potential may be taken into account only if the present value of the reasonably expected profit from the transaction is substantial in relation to the present value of the expected net tax benefits that would be allowed if the transaction were respected. Furthermore, financial accounting benefits arising out of a reduction in federal income tax are disregarded in determining whether the taxpayer has a substantial purpose for entering into the transaction.
Failure to demonstrate the economic substance of a transaction will be subject to an automatically-applied penalty equal to 20% of the underpayment (40% if the transaction is not adequately disclosed on the tax return). This law imposes virtual strict liability for these penalties by eliminating the reasonable cause and good faith defenses otherwise available under pre-existing law.
You may terminate our legal representation at any time upon written request. The Firm may withdraw from your legal representation should: (i) it believe such continuation is prohibited by the Code of Professional Responsibility; (ii) you fail to comply with our agreements as reflected in your engagement letter or any subsequent agreements or commitments to the Firm; or (iii) the Firm believes, for any reason, the attorney/client relationship is compromised or has been detrimentally affected. In the event the Firm withdraws, you agree to promptly retain other legal counsel. Upon termination or withdrawal, you agree immediately to pay all accrued and outstanding fees and expenses including through the conclusion of any fixed price assignment or for a given term, plus (in the case of the Firm) subsequent fees incurred by the Firm to facilitate the transfer of representation to any subsequent law firm and/or for the Firm to fully and completely withdraw. If you have contracted with the Firm's Capstone or Export Assurance affiliates, the withdrawal of the Firm will not affect Capstone's obligations to you or your obligations to Capstone, which shall be undiminished as to called for non-legal services and fees.
POTENTIAL CONFLICTS. When we are asked to provide legal services for more than one person (e.g., multiple owners of a business or a husband and a wife in an estate planning assignment or a business matter), conflicts may arise. If we are to act as attorneys for multiple persons, we must balance the interests of all persons involved. Therefore, we cannot be an advocate for any one person against another in the case of multiple representation. The process could favor one to the detriment of the other. By way of further example, a substantial conflict could arise in the determination of what constitutes community property versus separate property. That determination may be more beneficial for one spouse than the other. Further, while divorce may not be contemplated, it is important to realize that estate planning, and especially estate planning that incorporates declarations of gift, could have consequences that either spouse may find adverse in the event of divorce. As an additional example, because the Firm represents or has represented and Capstone administers and has administered many insurers (captive and otherwise, including PoolRe Insurance Corporation), including for those of affiliates of the Firm and Capstone, the Firm will not take on representation adverse to or to the detriment of or against those persons within the scope of the Firm's representation. Similarly, our recommendations could affect the income, property, and support provisions in any divorce or after the death of one of the spouses or that of one business partner versus another. For these and other reasons, each person or entity is advised to and welcome to have separate counsel.
With respect to any and all other controversies, disputes or claims whatsoever between (x) the Firm (including its lawyers) and/or its affiliates (including Capstone Associated Services, Ltd., Capstone Insurance Management (Anguilla), Ltd., Capstone Insurance Management, Ltd., and/or Export Assurance) (including their employees, officers and directors) and (y) any client of the Firm and/or its affiliates related to or arising out of the Firm's or its affiliates' services or arising under or in connection with or related to any of the parties’ agreements (but in no event for attorneys' fees for services previously rendered, see preceding paragraph), either party may submit the dispute to any qualified, experienced, recognized, impartial, neutral (x) arbitral association or (y) arbitrator for final resolution in an arbitration proceeding to be concluded within four months, except that the American Arbitration Association (AAA) shall not administer the arbitration and that AAA's supplementary rules for class action arbitrations shall be inapplicable. Submission of all disputes, controversies and claims to a single arbitration proceeding before a single arbitrator under this agreement shall be the sole and exclusive forum for resolving any and all disputes between the parties, except for attorneys' fees for services previously rendered which are before the HBA's FDC.
Except as to the HBA's FDC which shall apply its own rules, all proceedings -- regardless of the arbitral organization or arbitrator actually hearing the dispute -- shall be wholly-conducted physically and in person in Houston, Texas applying Texas substantive law pursuant to the Commercial Arbitration Rules (and not the rules for Large, Complex Commercial Cases) of the American Arbitration Association (AAA) then in effect, whose Expedited Procedures (with a four month jurisdiction) shall apply regardless of the monetary size of the dispute or the number of parties to the proceeding, with only a single arbitrator hearing the disputes, claims or controversies, again all regardless of the organization sponsoring the arbitration in question. This arbitration agreement and the called for single proceeding modifies the AAA arbitration rules regarding, inter alia, the selection of the arbitrator and the administration of the arbitration in that: (1) either party may directly appoint the single arbitrator or the arbitral association who/which shall proceed to resolve all disputes, controversies and claims, provided that the arbitrator is qualified, experienced, recognized, impartial and neutral; (2) the AAA is not required to administer and shall not administer the arbitration; and (3) any qualified, experienced, recognized, impartial and neutral arbitrator himself/herself or arbitral association may administer the arbitration. The arbitrator or arbitral association appointed to resolve the dispute: (i) shall have the sole and exclusive ability to rule on the arbitrator's appointment, including, but not limited to, disputes or challenges of bias and neutrality, subject to court review as to neutrality and the other qualifications hereof; and (ii) shall consolidate all disputes before this single Arbitrator, provided no class or collective actions or joinder of unaffiliated parties shall be allowed and that consolidation of related proceedings with the same or affiliated parties is required. Further, the arbitrator in all instances shall be required to enforce the contractual terms of this agreement, and the arbitrator shall lack authority and power to do otherwise. Additionally, the arbitration proceedings and the decision of the arbitrator will be confidential. As a condition of serving, an arbitrator shall have at least twenty years of non-judicial experience as a practicing, Texas-licensed lawyer.
In all cases (other than for matters before the HBA's FDC), the parties shall be deemed to have adopted the Optional Rules of the AAA for Emergency Measures of Protection (regarding injunctive or equitable relief, which requests for relief shall exclusively be submitted to the arbitrator) but have rejected the Supplementary Rules for Class Arbitrations. In all events, the parties waive the right to trial by jury in any action or proceeding. This arbitration provision shall be effective notwithstanding any actions that may later take place. The parties agree that the issue of arbitrability shall likewise be decided by the arbitrator, and not by any other person. That is, the question of whether a dispute itself is arbitrable shall be decided solely by the arbitrator and not, for example, by any court. The parties agree that the arbitrator has exclusive authority to resolve all disputes and challenges to the formation and enforceability of this arbitration agreement, and decide all disputes or challenges to the enforceability of the parties’ agreements as a whole. The parties agree that their intent is to divest the courts of all powers in disputes involving the parties, except to compel arbitration, and to confirm, vacate or enforce award and to rule on issues of an arbitrator being qualified, recognized, impartial, or neutrality or to otherwise enforce the terms of this arbitration agreement. Except as provided herein, the courts shall have no jurisdiction over legal or equitable (including injunctive) matters. The arbitration decision shall be final and binding in all respects. Any person may have a U.S. District Court or another court of competent jurisdiction (i) enter the findings of the arbitrator for all purposes, including for the confirmation and enforcement of the award, or (ii) to consider the modification or vacation of any award.
In accepting services, requesting further services or continuing payment for services, client acknowledges that he/she/it has had sufficient time to review this agreement, and has been advised as to the right to consult another, independent lawyer about the provisions relating to the waiver of conflicts of interest and any other aspect of this agreement as to which the client wishes to avail itself of such advice, and that the client is satisfied and fully understands this agreement. The client also understands that he/she/it has the freedom to select and engage counsel of their own choice and accordingly that this is an arm's length agreement between parties of equal bargaining strength and that the client has freely determined to agree to these terms.
If the first arbitrator or arbitral organization which receives a written demand for arbitration of the dispute does not complete the single arbitration to finality within four months of receiving the written demand, any party then may file another written demand for arbitration of the dispute within thirty days of the end of the four-month period, with another qualified, experienced, recognized, impartial, neutral, arbitrator or arbitral association, with the prior arbitrator or arbitral association then being immediately divested of jurisdiction, and the replacement arbitrator or arbitral association being required to render a final award within four months of the new, written demand being filed with the replacement arbitrator or arbitral organization. The replacement arbitrator shall not be the original arbitrator. Additionally, the parties agree that the dispute resolution process and procedures set forth above concerning the first (non-HBA FDC) arbitration demand, shall apply to every subsequent arbitration. We look forward to working with you.
January 1, 2022.
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