HomeMy WebLinkAboutP-21-127 FisherBroyles.pdfFisher Brovles paui Beard n
Partner
paul.beard@flsherbroyIes.com
Direct: 818-216-3988
4470 W. Sunset Blvd., Suite 93165
March 31, 2021 Los Angeles, CA 90027
VIA EMAIL www.FisherBroyles.com
Daniel C. Cederborg, Esq.
County of Fresno
2220 Tulare St, Fifth Floor
Fresno, CA 93721
Email: dcedcrborg@.fresnocountvca.gov
Re: Engagement Letter
Dear Mr. Cederborg,
This Agreement will not take effect, and FisherBroyles will have no obligation to provide
legal services, until Client returns a signed copy of this Agreement and pays any required retainer.
We appreciate your confidence in permitting us to assist County of Fresno ("You", and/or,
"Client") with its legal needs. This letter and the attached International Terms of Business (together the
"Engagement Terms") will govern the relationship of FisherBroyles, LLP ("FisherBroyles") with the
Client.
Representation. Our engagement as counsel to the Client will include drafting and filing an
amicus brief in Ghost Golf, Inc. v. Gavin Newsom (F082357), pending in the California Court of Appeal
(the "Representation"). Services in any matter not described above will require a separate written
agreement.
Point of Contact. Paul Beard will be the primary point(s) of contact for providing legal services
to you and may be assisted from time-to-time by other FisherBroyles' lawyers. You can find the
curriculum vitae for all our attorneys at our website www.fisherbrovles.com.
Fees. My rate for this Representation will be $425 per hour, and the charge to Client for this
Representation is capped at $2,000, inclusive of fees and costs.
The time charged will include the time FisherBroyles spends on telephone calls relating to client's
matter, including calls with Client, witnesses, opposing counsel or court personnel. 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 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, court
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hearing or other proceeding, each would charge for the time spent. Attorneys will charge for waiting time
in court and elsewhere and for travel time both local and out of town.
Time is charged in minimum units of one-tenth (.1) of an hour. The following have higher
minimum charges:
COSTS AND EXPENSES
(a) You agree to reimburse us for any out-of-pocket expenses we incur in representing you,
including filing fees, court reporter fees, commercial copying services, overnight/express
charges, postage, and travel expenses. Of course, we will not charge you for items such as
routine copying, facsimile transmittals or telephonic charges (unless international rates/charges
apply).
(b) Out of town travel. Client agrees to pay transportation, meals, lodging, and all other cost of
any necessary out of town travel by attorney's personnel. Client will also be charged the hourly
rate legal personnel spent travelling.
(c) Experts, consultants and investigators. To aid in the preparation or presentation of client's
case, it may become necessary to hire expert witnesses, consultants or investigators. Client
agrees to pay such fees and charges. Attorney will select any expert witnesses, consultants or
investigators to be hired, and client will be informed of persons chose and their charges.
Additionally, Client understands that if the matter proceeds to court action or arbitration, client may be
required to pay fees and/or cost to other parties in the action. Any such payments will be entirely the
responsibility of Client.
Retainer. As a part of this engagement, we are not requesting a retainer at this time (i.e., a pre
paid deposit that will be applied against your invoices until exhausted). However, we reserve the right to
do so at any time in the future at our discretion, particularly if we initiate any litigation on your behalf, the
scope of our representation otherwise increases, or your account becomes past due. We reserve the right
to increase or decrease the minimum retainer requirement. Your payment of any such retainer shall be a
condition of our continued Representation. The maximum retainer we may request for this matter is $2000.
Retainer payments should be made in U.S. dollars, payable to "FisherBroyles, LLP lOLTA," and
remitted to the following address via U.S. mail, postage prepaid: FisherBroyles, P.O. Box 735232, Dallas,
TX 75373-5232 (use the complete ZIP+4 code). Please include only your check in any mailing to the
above address, as it is set up for receipt-of-funds only and any other items will not be reviewed. At the
conclusion of this matter, any remaining balance of the retainer will be refunded to the Client.
Billing, Unless otherwise agreed, we will submit our invoices to you monthly by electronic mail.
Excluding any retainer payments discussed above, all payments should be made in U.S. dollars, payable
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to "FisherBroyles" and remitted to the address shown on the applicable invoice. Our invoices are due
within thirty (30) days of receipt. We reserve the right to pass-through to you as a reimbursable expense
any fees or other charges that FisherBroyles may incur in the form of credit card or wire transfer or similar
processing or related fees, including without limitation with respect to any trust account maintained by
FisherBroyles.
Conflicts of Interest - Waiver. While we are representing you in the Representation and
subsequent matters, we will not represent any other party in the same matter without your consent. As
with any other client and any other matter, you will have our complete loyalty with respect to these matters.
However, we note that FisherBroyles is an international law firm with numerous attorneys and
offices in multiple countries and that we practice in many diverse areas of law. It is possible that during
the time we are representing you, some of our current or future clients may ask us to represent them in
matters in which you are involved as another party. Furthermore, some of our clients may now or in the
future operate in the same lines of business as you do. Both our own prudent business conduct, and the
interests of our other clients, call for us to seek to retain the ability to accept matters for all of our clients.
While we recognize the business relationship issues that are generally involved with litigation against
clients, we ask for advance conflicts waivers as an important part of our intake process. We thus ask you
in connection with this engagement to consent in advance to our acceptance of matters (including litigation
matters) adverse to the Client (whether such matters are currently pending or arise in the future), provided
the matters are not substantially related to any matters we are handling or have handled for you. By
entering into this agreement, you consent in advance to such adverse representations. Thus, for example,
you agree that we would be able to take on a new lawsuit or transactional matter adverse to the Client for
a current or future client at the same time that we are representing the Client, provided the adverse matter
is not substantially related to any matters we are handling or have handled for you. This consent also
includes being adverse to you in any bankruptcy, regulatory, administrative, legislative or rulemaking
proceeding.
In addition, by entering into this agreement you agree that if we represent you in a matter adverse
to another person or entity, we may represent such other person or entity on matters not substantially
related to our work for you.
You should feel completely free to consult other counsel concerning these matters and we
encourage you to do so. By signing this letter, you acknowledge that you have had an opportunity to
consult with other counsel.
Choice of Law. This engagement agreement shall be construed in accordance with the laws of the
State of California, without reference to its conflicts-of-Iaws principles.
Litigation Hold. While the Representation may, or may not, entail Litigation at this time, it is
essential that you understand that your files could be important. The file includes all records that you or
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your employees produce or receive, whether paper or electronic in a legal action. A record may be as
obvious as a memorandum, an e-mail, an invoice, pleadings, contracts, correspondence and other
documents, or something not obvious, such as a desk calendar, an appointment book or an expense record.
Various laws may require you to maintain certain types of records, usually for a specified period of time.
Regardless of the application of other laws or even company policies, discovery laws require you to retain
all potentially relevant records, including electronic data and back-up. These requirements are generally
referred to as a "Litigation Hold." Failure to impose or maintain a Litigation Hold and failure to retain
these records and data could subject you to sanctions and fines, cause the loss of rights, obstruct justice,
place you in contempt of court, and/or seriously disadvantage you in litigation. As a result, we request
that you immediately secure and retain all materials pertinent to any pending or anticipated litigation,
whether in paper or electronic format, that may be relevant to this Representation, or representations
FisherBroyles provides to you in the future. Many document management programs automatically delete
certain documents (such as e-mails and other electronic format documents), and it is important that you
make sure that you do not accidentally destroy any documents. In addition, you must make certain that
any employees with relevant information are aware that they too must take the same steps. Please contact
us if you have any questions about the scope of necessary document retention or electronic data issues.
Effective Date. If the terms of our Representation as provided in this letter and the attached
Engagement Terms are acceptable, please indicate your acceptance and agreement by printing out and
signing this letter where indicated below and returning a scanned executed copy to me via e-mail to my
address shown above. Please also remit the initial retainer, if any, as discussed above. We will have no
obligation to commence work until this is accomplished. If you do not return a signed copy of this letter
to us, but nonetheless request that we perform legal services, it is agreed that you have accepted the terms
of this letter and the enclosed Engagement Terms. Once you have signed this letter and any requested
retainer has been received, this letter and Engagement Terms will constitute our engagement as your legal
counsel with regard to the legal matters described herein.
Entire Agreement and Miscellaneous. You and FisherBroyles understand that this letter, and
Terms of Business, constitute the entire agreement pertaining to the engagement of FisherBroyles, and
that it shall not be modified by any policies, procedures, guidelines or correspondence from you or your
representative unless agreed to in writing by FisherBroyles.
All parties signing this letter represent and warrant that they are fully authorized to enter into this
agreement, and in the case of signatories agreeing on behalf of organizations, to bind the organization or
organizations to the terms in this letter. Our relationship with you will be deemed concluded when we
have completed our agreed-upon services, except that for the avoidance of doubt, your obligations for fees
and charges shall survive. In addition, and without limiting the preceding sentence, in the event we have
performed no work on your behalf for six consecutive months, you agree that our attorney-client
relationship with you will have been terminated.
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Although we aim to provide the Client with the best possible legal representation and counsel, you
acknowledge that we have made no promises, warranties, or guarantees regarding the potential outcome
of any litigation. Furthermore, any estimate of fees given shall not be a guarantee. Actual fees may vary
from estimates given.
This Agreement may be signed in one or more counterparts and binds each party countersigning
below, whether or not any other proposed signatory ever executes it.
Thank you for the confidence that you have placed in FisherBroyles in general, and in me in
particular. If you have any questions, please do not hesitate to contact me.
Very truly yours,
FisherBroyles, LLP
Paul J. Beard II
Enclosure
APPROVAL OF ENGAGEMENT
County of Fresno agrees to the terms of the enclosed letter, and Engagement Terms, and the
enclosed International Terms of Business effective as of the date on which FisherBroyles LLP first
provided services to the Client.
JOINT CONFLICT WAIVER
Any time more than one person or entity is represented in the same matter, there is a possibility
that the clients' interests may diverge, creating a conflict of interest. In this matter, we are being asked to
represent a number of California municipalities jointly in the Representation. Accordingly, under the
applicable rules of Professional Ethics, in order for FisherBroyles to take on the Representation in this
case, all parties must give informed consent, and waive any objections to FisherBroyles' joint
representation. To date, we are not aware of any conflicts among municipalities participating as amici in
this matter that would prevent us from jointly representing all of you in the Representation. Nevertheless,
given the possibility that a conflict of interest might arise during the course of our engagement, we believe
it is necessary to seek informed consent from each of you to engage in the joint representation. In the vast
majority of cases, there is no significant conflict, and FisherBroyles can give undivided loyalty to each
client.
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In executing this Engagement Agreement below, you are expressly agreeing to this Joint Conflict
Waiver. You acknowledge (1) that all material information obtained by the firm during the course of the
Representation may be shared with every other municipality represented by us in this Representation; (2)
in the event that one of the client were to decide that some matter material to the representation should be
kept from other client(s), FisherBroyles may be required to withdraw from the representation; and (3) in
the event of any other conflict among clients, at FisherBroyles' discretion, FisherBroyles may withdraw
from the representation.
Upon request, we are happy to provide You with the most up-to-date list of represented
municipalities in this Representation.
By signing this letter, You acknowledge that You have been afforded the full opportunity to review
it and to seek the advice of independent counsel, and either have in fact consulted with such independent
counsel or have chosen not to do so.
COUNTY OF FRESNO
Dated:
Dated:
By:
Gary Comuelle
Purchasing Manager
Internal Services Department
Approved:
Daniel C. Cederborg, County Counsel
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Fisher Broyles — Inteniational Terms of BusinessFisherBroyles1. FisherBroyles is an intcrnalional law firmpraclicing in a number ofjurisdictions around theworld through affiliated legal entities and branchoffices of those entities. The FisherBroylespractices and affiliates are: FisherBroyles, LLP, aGeorgia limited liability partnership; andFisherBroyles (UK) LLP, an English limitedliability partnership (each a "FisherBroylesMember"). FisherBroyles (UK) LLP is a limitedliability partnership registered in England andWales, with registered number OC426505, isauthorised and regulated by the SolicitorsRegulation Authority of England and Wales("SRA") with S1U\ number 658162, and practicesin the United Kingdom from I Ropemaker Street,London, EC2Y 9HT. A list of members ofFisherBroyles (UK), LLP is available forinspection at our offices.2. The FisherBroyles Members engage incoordinated international legal practice but areseparate legal entities, each of which, absent anarrangement under clause 8, is solely responsiblefor its own work and is not responsible for thework of any other FisherBroyles Member.3. Each FisherBroyles Member is subject to the lawsand regulations of the particular jurisdiction orjurisdictions in which it operates. Full details ofthelegal and regulatory status of each FisherBroylesMember are available on the FisherBroyleswebsite.4. The word "partner" is used to refer to a partner ormember of a FisherBroyles Member or anemployee or consultant with equivalent standingand qualifications.Our Representation5. The enclosed Engagement Letter issued by aFisherBroyles Member (the "ContractingMember", "we", "us", "our") and these terms("Terms of Business") will constitute theEngagement Terms between you and us and willgovern the Representation, as defined in theEngagement l^etlcr. This will be the case even ifyou do not sign and return a copy of theEngagement Letter.6. In the event of any inconsistency between theEngagement Letter and these Terms of Business,the Engagement Letter shall prevail. Unlessexpressly stated othenvise, defined terms used inthese Terms of Business have the meaning givento them in the Engagement Letter.7. You agree that your relationship is with theContracting Member and not with anotherFisherBroyles Member unless clause 8 applies orunless otherwise confirmed in writing to you. Youalso agree that your relationship is not with anyindividual who is a member, employee, orconsultant (including anyone we call a partner) ofthe Contracting Member, who will thereforeassume, to the extent permitted by law, no personalliability to you.8. Where the Representation requires the services ofanother FisherBroyles Member other than theContracting Member, we shall use the services ofsuch other FisherBroyles Member unless youinstruct us otherwise, in writing. If the ContractingMember refers all or part of your instructions toanother FisherBroyles Member in this way, thenservices provided by that other FisherBroylesMember will be governed by the EngagementTerms, which will apply as between you and thatother FisherBroyles Member to the fullest extentpermitted by the laws and professional regulationsapplicable in the jurisdiction in which that otherFisherBroyles Member operates.9. Notwithstanding clause 8, ifanother FisherBroylesMember is engaged, they may issue to you, anengagement letter and/or additional terms inwriting.10. The Representation will be deemed concluded atthe lime that we have issued our final invoice forservices to you in relation to the Representation. Ifwe have a general retainer arrangement in place, sothat we provide advice to you on an ad hoc basisover an unspecified period, then we will write toyou to confirm when such a retainer has come toan end. After the conclusion of the Representation,changes may occur in the applicable laws orregulations that could have an impact upon yourfuture rights and liabilities. Unless you expresslyengage us following conclusion of theRepresentation to provide additional advice onissues arising from the Representation, and weagree to the same, we have no continuingobligation to advise you with respect to future legalFisherBroyles - International Terms ofBusiness-vApril2020P-21-127
developments.11. References to "you" or "your" in these Terms ofBusiness means our client in relation to theRepresentation; the persons and/or entitiesidentified by us in our Engagement Letter(including joint clients where applicable andwhere identified as such in our EngagementLetter). Our duty of care is to you and you agreethat this duty is limited to you and, to the extentthat you are a corporate entity or other entity, thatthe Representation does not extend to any of yourparents, subsidiaries, or other affiliates unless weexpressly agree in writing to represent thoseentities. Further, our representation of a company,partnership, joint venture or other entity does notinclude representation of the individuals or entitiesthat are shareholders, officers, directors, partners,joint ventures, employees, or members of suchentities or their interests in such entities.12. If we agree to act for more than one client inrespect of a single matter, then the obligations ofeach client to us will be several, except for theobligation to pay costs to us, which will be jointand several. Each joint client will be liable to paythe whole of the costs incurred in respect of thatmatter. Joint clients also agree that all informationand documents (including information ordocuments that are confidential or legallyprivileged or constitute or contain personal data orsensitive personal data) which we receive from onejoint client may be provided to all the other jointclients. Joint clients should also note that we maybe required to cease acting for one or more suchclients if this mutual consent to the sharing ofinformation is withdrawn. If a joint client asks usto return documents or money, then we shall returnthe documents or money to the joint client whoprovided them to us in the first place.13. We are legal advisers and it is not part of our roleto advise on business or financial matters. Nor willwe advise on any tax related aspects of theRepresentation unless we specifically agree inwriting.14. If the validity or enforceability of any part of ourEngagement Terms are in any way limited by thelaws and professional regulations applicable to youor us, then those laws and regulations will takeprecedence over the relevant terms, but such termswill be valid and enforceable to the fullest extentpermitted, and such limitation shall not affect thevalidity or enforceability of the remainder of ourEngagement Terms with you.Instructing other professionals15. If it is agreed that the Contracting Member shallinstruct another FisherBroyles Member or otherprofessionals (such as other specialist lawyers,lawyers of other jurisdictions, tax advisers,accountants, other experts / agents) on your behalf,then you are responsible for paying their fees.16. In the case of other professionals that are notFisherBroyles Members, it is likely to bepreferable for you to contract directly with them,although we would normally make thearrangements and deal with the professional foryou. If, however, you instruct us to enter into anycontracts with professionals, then we reserve theright to include their fees in our invoices. Ifsubstantial fees are involved, then we may ask fora retainer/payment on account to be made.17. Excepting where we instruct anotherFisherBroyles Member on your behalf, we assumeno responsibility or liability for advice given toyou or otherwise in respect of the informationsupplied or work undertaken by any otherprofessional with whom we may work in relationto our services, whether recommended by us orsuggested or instructed by you. Unless youotherwise advise us in writing, we will assume thatwe are authorised to communicate information(whether confidential to you or not) to suchadvisers for the purpose of their work.Our invoicing & payment terms18. Time expended by us is the major criterion fordetermining the fees for our legal and otherservices. The legal personnel assigned to theRepresentation will confer among themselvesabout the Representation, as required, in whichcase each person will charge for the time expendedIn certain instances, if agreed to by you, our feesmay be based on a more comprehensive measureof the reasonable value of the services provided.Our fee rates are subject to change from time totime, but we will provide you advance notice ofany such changes.19. Unless we agree otherwise in writing, we willnormally issue invoices to you on a monthly basis.Our Engagement Letter will document anyarrangements we may agree to keep you informedof the legal costs you are incurring.20. We will need to approve in advance any requestfrom you for any invoice issued by us in respect ofany matter to be paid by a third party.Notwithstanding our approval, you agree that youwill remain responsible for paying the wholeinvoice (including VAT or any equivalent taxeswhere appropriate) and any interest accrued on itP-21-127
21. Where we have agreed that we are instructed bymore than one client in relation to an Engagement,you will each be jointly and severally liable for ourinvoices.22. Our invoices must be paid within 30 days of thedate of issue. We reserve the right to chargeinterest on any overdue amounts at the ratespecified in the Engagement Letter or otherwisethe maximum statutory or legal rate provided bylaw. In the event of non-payment, you will alsopay all costs of collection, including reasonableattorneys' fees and costs for the time expendedduring any audit and/or proceeding or otherwisepertaining to the collection process.23. If any bill is not paid within 30 days after it isdelivered or any request for a retainer/payment onaccount is not met, we reserve the right:21.1. to suspend canying out our services;and/or21.2. to terminate our retainer on writtennotice to you; and/or21.3. to charge interest; and/or21.4. to remove our name from the courtrecord in any proceedings in whichwe are acting for you; and21.5. continue to hold any money held onyour behalf until such time as youhave paid our invoices in full.24. If one or more of our invoices remain unpaid, inwhole or in part, then you hereby authorise us toapply any of your funds held in our client ordeposit accounts (provided they are not held by usfor a specific purpose or to the order of a thirdparty) towards the payment of the unpaid invoicesat our discretion and irrespective of whether thefunds are held in connection with the matter towhich the invoices relate.25. We accept no liability for any detriment that iscaused to you as a result of any delay in providing,or for any failure to provide, funds we request.26. We will not accept payment in cash.27. We shall not advise on or be under any obligationconcerning the tax consequences of payment ofour bills unless we have agreed to do so in ourEngagement Letter.28. Subject to compliance with money launderingregulations we will accept, for the convenience ofclients, most major credit and debit cards forpayment of our bills. Please ask for details.29. Our bills are payable on receipt and in the currencyin which they are submitted. If we agree in advancethat you may pay our bills in a currency other thanthe one in which our bill was rendered and as aresult of exchange rate fluctuations the amountactually received by us net of bank charges differsfrom the amount invoiced, then we reserve theright to treat the bill as unpaid.30. Our bills are to be paid free of any withholding ordeduction in respect of taxes, duties, or charges ofany other nature. If you are required by the law ofany relevant jurisdiction to withhold or deduct tax,then the amount of the bill is to be treated asincreased to the extent necessary to ensure that wereceive and retain a net sum equivalent to theamount of the bill.31. If payment of our bills or our receipt of suchpayment is subject to exchange or other similarcontrols, then you will use your best endeavours toobtain (or to help us to obtain) any requiredauthorisations or consents as soon as possible aftereach bill is rendered, or on our request you willensure we receive prompt payment in accordancewith such authorisations or consents. If exchangecontrol approval has not been obtained within 90days from the date of our bill then, if lawfullyrequested by us, you will pay into a local accountdesignated by us the amount in local currencyequivalent to the amount outstanding on our bill(converted at the date of payment).Value Added Tax32. In considering whether VA'f is applicable, weshall rely on information provided by you. If, as aresult, invoices omit VAT which is later found tobe applicable, then you must pay the amount of theVAT, including any penalties or interest arisingfrom the initial failure to charge or pay the VAT.Disbursements & other costs33. Unless we have agreed otherwise, we reserve theright to charge at cost for expenses including,without limitation, court fees, conference calls,postal and courier services, travel andaccommodation, commercial photocopying,printing and binding, access to online databases orbank transfers. We will not charge you for itemssuch as routine copying, facsimile transmittals, ortelephonic charges (unless internationalrates/charges apply). We may request yourpayment of such expenses prior to our incurringsuch costs, expenses, or disbursements.P-21-127
Our client account & interest34. Any money held by us on your behalf inconnection with any matter will be deposited in atrust account or general client account and we willmanage it in accordance with applicable laws andprofessional regulations.35. We may account to you for interest on money heldby us in accordance with applicable laws andprofessional regulations. You acknowledge thatyou may not receive interest and, if you do, that itis unlikely that you will receive as much interest asmight have been obtained had the funds beeninvested by the client itself.Communications with you36. We will send documents and communicate byemail with you and others involved in any matteron which we are engaged by you. Sending emailsis not secure and, if you prefer us not tocommunicate or send documents by email, eitherat all or for particular types of documents, then youwill let us know and we will arrange for encryptionand secure file transfer facilities to be put in place.37. Both you and we agree to use commerciallyreasonable procedures to check for commonlyknown viruses before sending informationelectronically, but you and we recognise that suchprocedures cannot guarantee that transmissionswill be virus free.38. You accept the risks of using electronic mail,including, but not limited to, the risks of viruses,interception, unauthorised access, delay,misrouting, and breakdown of service providers.39. Electronic mail may be monitored for regulatorycompliance purposes.40. We endeavour to retain, in electronic storage,copies of all emails which contain or refer tosignificant information, although others may bedeleted or destroyed. However, it may beimpractical or unjustifiably time consuming toretain all such emails.Storage of papers & documents41. As the Representation may allow, we may keep"electronic-only" files, meaning that we will notmaintain hard-copies of documents and paper files.Ifyou have any concerns regarding electronic files,then you must specifically identify and request inwriting that we maintain or provide hard copies toyou and we will use our reasonable endeavours todo so.42. On completion of our work, following payment ofall our bills on all matters for you, any originaldocuments or other property which belongs to youand which we hold will be returned, if you sorequest. Files or records of our work will be keptfor at least 8 years (from the date of our finalinvolvement in relation to the Representation) andmay be placed in third party storage and/orscanned and/or stored electronically. If we scan orstore documents electronically, then we may alsodestroy the originals, unless they are documents oftitle or documents having an intrinsic status orvalue deriving fi-om a factor other than theircontent though it is your responsibility to identifyany documents in our possession of which youwould like custody.43. If we have stored hardcopies and we retrieve filesor documents from storage in relation tocontinuing or new instructions, then we will notnormally charge for such retrieval. However, wemay make a reasonable charge in othercircumstances.Our documents & intellectual property rights44. We retain copyright in all documents we draft inconnection with the Representation, but we licenseyou to use these documents for your purposes.45. Our correspondence with you and all copies ofother documents received from or created for youduring the Representation remain our property.We shall at your request, provide you with copiesof relevant documents though, as applicable lawsand regulations allow, we may only do so if ourbill has been paid.Timescales & deadlines46. Our work may be affected by your instructions if,for example, you require it to be completed in aparticular manner or timescale. If you instruct usto report to you in an abbreviated form or withinan unusually short timescale, you may not receiveall the advice or information you would otherwisehave received.47. We shall attempt to meet any deadline we agreewith you for the performance of our service or theprovision of any advice, but you accept thatmeeting such deadlines may not always bepossible.Other clients & conflicts48. You agree that, without prejudice to our duty ofconfidentiality to you and subject to applicablelaws and rules of professional conduct, we and/orany other FisherBroyles Member may now or in4P-21-127
the future without your consent be instructed inother matters by other clients whose interests maynot be aligned with your own (or with your relatedpersons, entities, or affiliates).49. However, while we are acting for you on a matter,we will not act for another client in relation to thesame or a related matter unless and to the extentthat we are permitted to do so under the laws andprofessional regulations applicable to us, and,where necessaiy, we have your consent.Confidentiality & duty of disclosure50. We will keep your affairs and all informationobtained from you, which is not in the publicdomain, confidential, and will only otherwisedisclose such information if required to do so bythe laws and professional regulations applicable tous, or as set out hereunder.51. You agree that, unless you instruct us otherwise,we may disclose in confidence any relevantdocuments and information to your otherprofessional advisers including anotherFisherBroyles Member (not limited to those whomwe are instructing on your behalf).52. You agree that we may disclose confidentialinformation relating to you to other FisherBroylesMembers as part of the operation of internationalaffiliation, including for the purposes ofundertaking conflict checks and as otherwisenecessary where we have agreed that such otherFisherBroyles Members are also providingservices and advice to you.53. We may disclose any relevant confidentialinformation in order to protect and/or defendourselves in any actual or threatened legal orregulatory proceedings. Similarly, we may alsodisclose any relevant information in confidence toour insurers, insurance brokers, auditors, and otheradvisers, if and to the extent such disclosure mayoccur without waiving or losing any applicablelegal professional privilege.54. For the purposes of marketing or publicising ourservices, we may want to disclose that we haveadvised you, in which event we may identify youby your name and indicate the general nature of therelevant matter and any details which haveproperly become publicly known.55. We may, in the interests of cost saving andefficiency, outsource services such as ITinfrastructure and services and other back-offcefunctions. We will ensure that providers of suchservices have given robust information security,data protection, and confidentiality undertakings,and we will monitor their compliance, reputation,and standards.56. You agree that we are under no duty to disclose toyou or use on your behalf any information inrespect of which we owe a duty of confidentialityto another client or any other person. Further, if weare not engaged by you at a given point in time,you agree that, unless prohibited by applicablelaws or professional rules, we are entitled to acceptother instructions to act in respect of the subjectmatter of your previous instructions, provided wedo not disclose to or use for the benefit of anotherclient, any information or documents in respect ofwhich we owe you a duty of confidentiality.57. Where information that is or may be relevant toany other and separate matter we are instructedupon is provided to another FisherBroylesMember and/or personnel of the ContractingMember other than those individuals involved inthe Representation, you accept that knowledge ofthat information will not be imputed to thoseindividuals who are involved.58. You agree that by our putting in place appropriatesafeguards to ensure that access to the relevantconfidential information is restricted, our duty ofconfidentiality to you will be satisfied and we willnot be prevented from acting for you or for otherclients, provided nothing contravenes theapplicable professional rules and law.Data protection59. In providing personal data to us, we shall assumethat you have complied with your own obligationsunder relevant data protection laws. Any personaldata that you provide to us will be stored,processed, and transferred in accordance with ourobligations and for the purposes of providing legalservices to you.60. Further details as to our use and processing ofpersonal data is available on our website and canalso be provided in hardcopy form on request.Terminating the Representation61. You, at all times, have the right to terminate theRepresentation by written notice to us. Likewise,we reserve the right to suspend or terminate ourservices and advice to you. If either partyterminates the Representation, then we will stop allwork for you, consistent with applicable laws andprofessional regulations. Following termination,we will properly invoice you for all outstandingfees and costs incurred up to and including thetermination date. Where we have agreed to act onthe basis of a contingency fee arrangement (for5P-21-127
example a conditional fee agreement or adamages-based agreement) our right to receivepayments to which we are entitled under sucharrangements will survive the termination of theRepresentation.62. You agree that, subject to the laws andprofessional regulations applicable to us, we mayexercise a lien over (that is, retain) all your files(paper and electronic documents and data), monies(including settlement or verdict funds), and otherproperty held for you until our invoices (relating toany and all matters on which we are instructed) arepaid in full. In addition, you agree that we mayinvoice you for any further fees and expensesassociated with the transfer of our files to anotheradviser of your choice.Our liability63. For the purposes of these clauses under the heading"Our liability", "Loss" means the total of all losses(including loss of profit, loss of business, loss ofopportunity, etc.), damages or costs suffered orincurred, directly or indirectly, in connection withany matter, including as a result of breach ofcontract, negligence, fault, or other act or omissionby the Contracting Member or any otherFisherBroyles Member, but excluding any losseswhich cannot be so limited under the relevant lawand regulations.64. We shall not be liable for any delay in performingor inability to perform our services or obligationsas a result of circumstances outside our reasonablecontrol or our compliance with any anti-moneylaundering or counter terrorist financinglegislation.65. The total aggregate liability of the ContractingMember and any other relevant FisherBroylesMember to you (or any other party whom we haveexpressly agreed may have the benefit of, and relyon, our work) for Loss or any costs incurred by youshall be limited to the cap on liability stated in theEngagement Letter, if any, provided such a cap isin compliance with applicable laws andregulations.66. Save where expressly agreed otherwise, we shallbe liable only to you and not to any third party andno such third party will be entitled to enforce theterms of the Engagement Terms.67. The Contracting member or any otherFisherBroyles Member will not be liable if anyLoss is due to the provision of false, misleading, orincomplete information or documents (save wherewe should reasonably have discovered the false,misleading, or incomplete information ordocuments).68. We shall not accept any liability for any Losssuffered by you as a result of your reliance onadvice or other services provided by third partiesinstructed by us on your behalf (for examplebarristers, co-counsel, correspondent lawyers inother jurisdictions, experts, unless otherwiseagreed in writing with you). Any advice given bysuch third parties will be their responsibility directto you and not ours, and we shall not be liable forany act or omission by them. For the avoidance ofdoubt, this does not include advice and servicesprovided by another FisherBroyles Memberinstructed by the Contracting Member.69. Where you suffer any Loss for which theContracting Member or another FisherBroylesMember is jointly and severally liable with anotherthird party, the extent to which such Loss shall berecoverable by you from us, as opposed to the thirdparty, shall be limited so as to be in proportion toour contribution to the overall fault for such Loss.You agree that our position will not be adverselyaffected by any limitation of liability you mayagree with any third party and that we will not beliable to you for any amount in excess of ourproper share of a joint or several liability which weare not entitled to recover from any other party byreason of your agreement to limit their liability.70. No member or partner of a FisherBroyles Memberor any employee or consultant shall have anypersonal liability to you whatsoever, save thatprovisions in these Terms of Business whichrestrict or exclude the liability of FisherBroylesMembers or of their members, consultants, orpartners (including anyone we call a partner) willnot apply in the case of fraud or deliberatemisconduct.Complaints71. If you are dissatisfied with our service or areunhappy with our invoices, in the first instance,please contact the person with whom you areworking or corresponding to set out yourconcerns. We will do our best to resolve anyissues at this stage and, if applicable, will confirmour complaints handling procedure in writing(which is available on request). Further detailsare available on our website.Whole agreement72. The Engagement Letter, these Terms of Business,and any other terms expressly agreed at any timein writing by a partner of ours, set out the entireagreement - the Engagement Terms - between usand you for the work you have instructed us to do.6P-21-127
If you instruct us to carry out additional work andwe do not prepare a separate Engagement Letter,then this agreement will continue to apply,modified to reflect the scope of the additional workwhich will be carried out at our then hourly ratesfor the individuals concerned, unless we agreeotherwise in writing.73. If any part of the covering Engagement Letter orthese Terms of Business is or shall become invalid,illegal or unenforceable, the remainder shallsurvive unaffected.74. The headings to paragraphs in the EngagementLetter and these Terms of Business shall beignored in construing the paragraphs.Governing law & disputes75. These Engagement Terms and any dispute or claim(including non-contractual disputes or claims)arising out of or in connection with them or theirsubject matter or formation shall be governed byand construed in accordance with the choice of lawspecified in the Engagement Letter.P-21-127
1.1 Electronic Signatures. The parties agree that this Agreement may be executed by
electronic signature as provided in this section.
(A)An “electronic signature” means any symbol or process intended by an individual signing
this Agreement to represent their signature, including but not limited to (1) a digital signature; (2)
a faxed version of an original handwritten signature; or (3) an electronically scanned and
transmitted (for example by PDF document) of a handwritten signature.
(B)Each electronic signature affixed or attached to this Agreement (1) is deemed equivalent
to a valid original handwritten signature of the person signing this Agreement for all purposes,
including but not limited to evidentiary proof in any administrative or judicial proceedin g, and (2)
has the same force and effect as the valid original handwritten signature of that person.
(C)The provisions of this section satisfy the requirements of Civil Code section 1633.5,
subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5,
beginning with section 1633.1).
(D)Each party using a digital signature represents that it has undertaken and satisfied the
requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5), and
agrees that each other party may rely upon that representation.
(E)This Agreement is not conditioned upon the parties conducting the transactions under it
by electronic means and either party may sign this Agreement with an original handwritten
signature.
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