CONSUMER LAW
ATTORNEY RETAINER AND FEE CONTRACT
*Date*
*Customer Name*
*Customer Email*
*Customer Phone*
This agreement establishes the terms by which Miller Advocacy Group PC (“Attorney”) agrees to represent you (“Client”) in investigating and assisting you in pursuing your claim (your “Claim”) against *College Board * (“Defendant” or “Defendants”).
Attorney and Client 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 Client returns a signed copy of this Agreement and Attorney acknowledges acceptance of representation by counter-signing this Agreement and returning a fully executed copy to Client (electronically).
Client hires Attorney to provide legal services in the following matter:
Client and Attorney agree that Attorney will limit the scope of representation to providing certain specific legal services in connection with this matter for a limited time and for a particular purpose (as outlined more specifically in Exhibit A to this Agreement). Attorney’s investigation may reveal that Client has claims against others which may arise under various consumer federal and state consumer protection or fraud statutes or common law, or that a different level of representation may be required than the representation covered by this Agreement. Any additional services not included in this agreement will require the parties to sign a separate Attorney-Client Agreement.
Attorney will not make any settlement or compromise of any nature of any of Client’s claims without Client’s prior approval. Client retains the absolute right to accept or reject any settlement.
Client agrees to be truthful with Attorney and not withhold information. Client agrees 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 any Attorney’s bills on time.
Client agrees to pay Attorneys all fees and costs reasonably incurred by Attorneys in any proceeding to enforce the terms of this agreement, including the collection of amounts due for unpaid fees.
Attorney will provide 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 appear at all legal proceedings when Attorney deems it necessary, and to generally to cooperate fully with Attorney in all matters related to the preparation and presentation of Client’s claims.
Client agrees that once Attorney has been retained, all communication between Client and the business which is the subject of the matter of this Dispute, must stop. All further communication must be through Attorneys. This requirement is for Client’s protection. Communication with College Board regarding any other matters by Client or Client’s parent(s) or guardian(s) may continue as usual. Client agrees to promptly forward any written communication with College Board regarding this matter to Attorneys.
Attorney-client communications are privileged and are protected against disclosure to a third party. Under this agreement, Client may be one among multiple plaintiffs being jointly represented by Attorneys, and by signing this agreement, Client waives any rights Client may have to require that Attorney disclose to Client any confidences Attorney may have obtained from any other plaintiff in connection with the subject matter of this agreement or lawsuit.
Client understands that Client must fully cooperate with Attorney throughout the course of representation. This includes, without limitation: (i) promptly returning calls; (ii) providing requested information; (iii) appearing when necessary at hearings, depositions or meetings; (iv) not taking action on the case without Attorneys’ instruction and approval; (v) not discussing the case with anyone without Attorneys’ approval and consent; and (vi) informing Attorneys immediately of any developments related to the case or any changes to Client’s current information (i.e., work status, income, home or work address, phone number or e-mail address).
Unless otherwise agreed between the parties, Client will not be responsible for paying any fees or costs other than a $200 filing fee payable to the American Arbitration Association for the arbitration demand, if necessary. Client will not have to pay a filing fee if any of the following apply: (1) Client elects not to file a demand for arbitration; (2) Client’s income is below 300% of the federal poverty line; or (3) the Defendant agrees to pay the filing fee for Client. If Client’s claim is based solely upon the 2020 Advanced Placement Exams, College Board has agreed to pay the initial filing fee to the American Arbitration Association pursuant to the agreement signed by any student taking the AP exam.
You will have no responsibility for legal fees and expenses. We will advance all other fees and expenses necessary to prosecute the case. Legal fees and expenses will be paid only out of a recovery (i.e. award or settlement). In the event that we are not successful in obtaining a recovery, the responsibility for these fees and expenses is ours alone.
We will represent you on a contingency fee basis. This means that Attorney will only be compensated for legal services rendered if a recovery is obtained for Client. If no recovery is obtained, Client will not be obligated to pay any fees or costs to Attorney. A more detailed calculation of how Attorneys’ fees will be calculated is attached hereto as Exhibit B.
Client understands that Attorneys shall be permitted to petition for and prosecute any claim for Attorneys’ fees and costs, including the taking of an appeal of the same. Should any post-judgment interest accrue on a judgment rendered against any defendant(s), Attorneys shall be entitled to the interest on their portion of the judgment and/or fee award, and Client shall be entitled to the interest on Client’s portion.
Client has the right to terminate this agreement and “fire” Attorney at any time. Should Client terminate the relationship with the Attorneys before the resolution of any pending matter, Attorney is entitled to be paid for the value of the work completed, at the Attorney’s current hourly rate. Should Client terminate the Attorney-Client relationship after an offer of settlement is received, and Client eventually accepts a settlement similar to the offer obtained, Attorney is entitled to fees the same as if Client had not terminated the Attorney-Client relationship or “fired” the Attorney.
Client understands that Attorneys also have the right to terminate this Agreement. Some of the reasons Attorney may choose to terminate this Agreement are as follows: (i) Client and Attorney cannot work together productively; (ii) Client is not truthful with Attorney or Attorney has difficulty obtaining information from Client; (iii) Client refuses to accept a settlement offer that Attorney believes to be reasonable; or (iv) a difference of opinion arises as to issues pertaining to the case. Attorneys reserve the right to terminate this Agreement if at any time it appears to Attorneys that Client’s claims no longer hold sufficient merit to warrant continued representation. In the event Attorney must terminate this Agreement because of Client’s failure to comply with its terms, Attorney shall be entitled to fees for their work completed to date, at its prevailing hourly rate, as well as a reimbursement of all costs.
Any controversy between the parties regarding the construction, application or performance of any services under this Agreement, including any claim by Client against Attorney for breach of contract, professional negligence (malpractice), breach of fiduciary duty or any other tort or contract claim, shall be submitted to the fee arbitration procedures of the State Bar of California, as set forth in California Business and Professions Code Section 6200, et seq.
Client hereby grants Attorney a lien on any and all claims or causes of action that are the subject of Attorney’s representation under this Agreement. Attorney’s lien will be for any sums owing to Attorney for any unpaid costs or attorneys’ fees under this Agreement. The lien will attach to any recovery Client may obtain, whether by arbitration award, judgment, settlement or otherwise. This means that Attorney may be able to compel payment of fees and costs from any such funds recovered on behalf of Client even if Attorney has been discharged or has withdrawn from the case before the end of the case. Because a lien may affect Client’s property rights, Client may seek the advice of an independent lawyer of Client’s choice before agreeing to such a lien. By signing this Agreement, Client represents and agrees that Client has had a reasonable opportunity to consult such an independent lawyer.
Nothing in this Agreement and nothing in Attorney’s statements to Client will be construed as a promise or guarantee about the outcome of Client’s matter. Attorney makes no such promises or guarantees. There can be no assurance that Client will recover any sum or sums in this matter. Attorney’s comments about the outcome of Client’s matter are expressions of opinion, only.
Attorney represents or may represent more than one plaintiff in this action and may have potential conflicts of interest that could result. By signing this document, Client certifies that Client has been informed of such potential conflicts of interest and waives any potential conflict of interest that could result from Attorney representing more than one plaintiff.
Client agrees that Attorney may divide fees with other attorneys serving as co-counsel, as referral fees or for other services performed. The division of attorneys’ fees with other counsel may be determined upon a percentage basis or upon time spent in assisting the prosecution of an action. The division of fees with other counsel is our sole responsibility and will not increase the approved fees or the net fees received by us upon a successful resolution of the litigation.
You may reach Attorney through the claim management dashboard provided by FairShake Inc. (“FairShake”) or by email at *Attorney Email*. All communications should be initiated through these two channels and Attorney will respond accordingly.
Client agrees and consents to Attorney communicating with Client regarding the Client’s matter and account by means of electronic communication (“email”) to the email address provided by Client, which Client represents is owned by Client. From time to time, lawyer may communicate with Client regarding matters other than the Client’s particular matter or account, such as services that the law firm may wish to market to the Client or issues that we find may be of interest to the Client. At any time, Client may withdraw his/her consent by notifying us in writing to cease communication by email.
You represent that you are not an employee of the College Board or any of their affiliated entities. Upon your execution of this agreement, you will have retained us as your counsel. Thus, if the College Board or any of their affiliated entities contacts you, please refer them to us.
You also represent that you are not a judge, arbitrator or judicial officer of any kind involved in this matter, or a member of their staff, nor are any such persons, members of your immediate family. You further represent that if you become aware that a judge, arbitrator or judicial officer or any kind presiding over this matter, or any member of his or her staff, is a member of your immediate family, you will disclose the relationship to us and we may withdraw from representing you. You agree that in any such situation we may use any information we learned through our representation of you to assist us in prosecuting other related disputes.
You agree that our files and documents compiled in connection with our investigation and prosecution of this matter constitute the work product and property of this firm over which the firm has complete control.
Client understands that nothing in this agreement shall affect Client’s contractual obligations with Fairshake. Client understands that Client still has a financial obligation to FairShake out of any proceeds Client receives from any award or settlement.
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.
FairShake acknowledges that any payment of fees or 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.
Attorney has not been retained to provide Client with any tax advice concerning any of the services described in paragraph 2. 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.
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.
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.
This Agreement may be modified by subsequent agreement of the parties only by an instrument in writing signed by both of them.
CLIENT HEREBY ACKNOWLEDGES HAVING READ THIS AGREEMENT FULLY, UNDERSTANDS ITS TERMS, AND AGREES TO THEM.
ACCEPTED AND AGREED, as of the date first written above:
CLIENT
_______________________
*Customer Name*
ATTORNEY
___________________________
*Attorney Name*
Scope of Representation
Attorney will prosecute claims against Defendant through making a consumer claim and through arbitration with the American Arbitration Association, if Client and Attorney choose to file a claim for arbitration.
The scope of this representation includes reviewing the consumer complaint, sending a legal demand to Defendant on Client’s behalf, and negotiating a settlement on your behalf.
If the Defendant does not offer to settle within the waiting period, then Attorney will give Client the option of escalating its claim to consumer arbitration by automatically generating and submitting American Arbitration Association’s forms. Attorney will use the description in Client’s claim and request that Client provided as well as your own contact information. By default, and often times by agreement with Defendant, Attorney will file documents on Client’s behalf with the American Arbitration Association (“AAA”) that request a “documents only” arbitration – which means Client will not have to show up for a meeting or phone call to discuss the issue. Client is advised to contact Attorney prior to any arbitration filing if a “documents only” arbitration is not preferred.
Attorney will review all communications between Client, Defendant and AAA and will advise Client how to respond. Attorney will also provide materials to Client in preparation of any pre-arbitration hearings or scheduling conferences.
Attorney will prepare self-help materials for Client to use during the arbitration, and at Attorney’s own discretion, may choose to will appear as counsel on Client’s behalf in arbitration. All decisions in arbitration will be made jointly and will be approved by Attorney.
Any additions or changes to this Amendment must be made in writing and signed by the parties.
Attorneys’ fees will be calculated as follows:
Attorney will be entitled to thirty-three percent (33%) of the total monetary recovery received by Client, unless Attorney is awarded costs and attorneys’ fees pursuant to an arbitrator or judgment-ordered award, in which case Attorney shall be entitled to the fee award only.
With the knowledge and consent of Client, Attorney may from time-to-time advance costs and fees required for the prosecution of your matter. Client agrees that payment for those costs and fees shall be recovered from any Arbitration Award, judgement or settlement.
The Client’s net recovery will be the sum of money which remains from the total amount received by settlement, arbitration award or judgment (including awards to Client of attorney’s fees, interest and costs), after the deduction of attorney’s fees (which will be subtracted first) and the further deduction of all unpaid costs and disbursements.
Client understands that certain types of claims may limit the Client to statutory damages, restitution or specific performance but may require that the Defendant pay for attorneys’ fees and costs incurred.
Client acknowledges and understands that the amount awarded Client may be disproportionate to the fees awarded to Attorney. In other words, your attorney may earn more in fees than you receive in settlement proceeds or arbitration awards.
In certain instances, resolution of a matter may result in payment of fees to Attorney and non-monetary relief to Client, such as reinstatement of a test score, rescoring opportunities, correction of erroneous reporting, waiver of late fees or charges, etc. Client acknowledges and understands and agrees to the payment of fees as provided herein notwithstanding the fact that client may receive no direct monetary compensation.
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