Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
STANDARD TERMS OF REPRESENTATION
Effective September 2022
Electronic Communications. It is likely that during the course of this engagement both You and the firm will use electronic devices and Internet services (which may include unencrypted email, mobile phones, voice over Internet, electronic data/document websites, and other technology) to communicate and to transfer documents. Although the use of this technology involves some degree of risk that third parties may “hack into” or otherwise access confidential communications, You agree that the benefits of using this technology outweigh the risk of accidental disclosure. It is important that You communicate with us in a manner that reasonably protects the confidentiality of information we share and any attorney-client privilege that may apply to our communications. This means that You should not use any computers or other electronic devices, networks, or Internet addresses that are owned, controlled, or may be accessed by others, including employers and including but not limited to, public wi-fi networks or a shared home computer, to send or receive confidential information. Any device You use should be password protected and not accessible for use by any third party.
Compensable Expenses: It is likely that You will be required to incur, or we will be asked by third party vendors to advance on your behalf, out-of-pocket costs and expenses for such items as recording and filing fees; court costs; court reporters fees; hearing and/or deposition transcripts; expert witness fees; mediation or arbitration services; computerized legal research; travel expenses, including transportation, lodging and meals; expedited delivery and/or overnight courier charges; photocopies and other reproductions, facsimile and/or data transmissions; postage; long distance and cellular telephone calls and similar items. We may forward to You invoices for such services and products from third party vendors, which You agree promptly to pay directly to the third party vendors. You will also be billed monthly for these costs, expenses and disbursements, in addition to our professional fees, if we advance them on your behalf. Each will be separately itemized on your monthly statements. In certain instances, however, particularly in the case of substantial and/or other large expenses, such as filing fees, mediation fees, expert witness fees, title or survey fees, and environmental reports, we may request that You fund those expenses to us in advance.
In the case of expenses incurred and disbursements made by us to third‑party vendors and/or service providers on your behalf, You will be billed at our actual invoiced cost. We reserve the right to have third party invoices furnished directly to You for prompt payment, not later than thirty (30) days from your receipt of same and indemnify, discharge, save, defend and hold us harmless from, any claims asserted against us by reason of your failure to do so. In the case of internally generated charges (such as photocopies and other reproductions, facsimile transmissions, long distance telephone charges and the like), You will be billed at rates that reasonably approximate our actual internal costs in accordance with our Standard Expense Schedule in effect when the charge is incurred.
Retainer Deposit: The retainer deposit, if any, required for this engagement will be deposited to and held in our trust account as partial security for the payment of our fees and expenses, until the conclusion or earlier termination of this engagement, when it will be applied to our final statement, with any unused portion thereof being promptly refunded to You after payment in full of all amounts due to us in connection with this engagement. Should our statements not be timely paid as expected, we reserve the right to apply the retainer deposit to the payment of any amounts past due for more than sixty (60) days without prejudice to our right to further pursue collection of any unpaid balance thereafter remaining. We reserve the right to subsequently request a retainer if one is not initially required and to request that any existing retainer be increased should circumstances warrant it.
Billing: It is our practice to render invoices for our professional services and related costs and expenses monthly. Our invoices will reflect our fees for professional services rendered and costs and expenses incurred and/or advanced by us on your behalf through the last day of the immediately preceding month.
In the event that You should disagree with an amount stated to be due under any invoice which we issue to You, You agree to communicate such disagreement to us in writing within thirty (30) days following your receipt of each invoice. In the absence of our receipt of such a written disagreement from You within such time, we will be entitled to assume that You have agreed to the amount of such invoice and that You will pay the same in a timely manner.
Payment: We will expect to receive payment promptly after each invoice is rendered and in any event, not later than thirty (30) days from your receipt of each, without regard to the closing or other consummation of a proposed transaction or the success, outcome or conclusion of the particular transaction, case or other matter on which we are engaged. In the event that our invoices are not paid within sixty (60) days following the date of issuance, we reserve the right to charge interest on any past due amounts at the rate of one and one-half percent (1.5%) per month. In addition, in the event that our invoices are not timely paid as expected, we reserve the right (subject to any limitations imposed by the Rules of Professional Conduct of The Florida Bar) to suspend the rendition of our professional services in connection with this engagement until full payment of all amounts due us is received or, if necessary, to terminate our professional relationship and withdraw from this engagement (with leave of court, if required) on account of the non-payment or untimely payment of our invoices.
Collection: If we are required to resort to arbitration proceedings to collect from You any monies which may be due to us in respect of this engagement, we shall also be entitled to collect and recover from You in such proceedings all costs and expenses incurred by us in the prosecution of such proceedings, including the reasonable attorneys’ fees and expenses of our counsel in such proceedings, whether such counsel be our own attorneys or separate (outside) counsel. You agree that any such proceedings shall be exclusively venued in Orange County, Florida and You agree and consent to that venue for that purpose.
Lien for Fees: As security for the payment of our professional fees and all costs and expenses incurred and/or advanced by us on your behalf, we shall have a lien on all retainer trust deposits, cost and expense trust deposits, documents, property and/or funds belonging to You which are in our possession from time to time. Further, if this engagement involves litigation, we shall have a charging lien on all property and/or funds which You may recover in the action or proceeding which is the subject of this engagement and, if necessary, the right to institute arbitration proceedings for the collection of all sums due us and/or to intervene in any action in which we represented You as a party litigant for such purpose.
Estimates: Any estimate of the amount of professional fees and/or costs and expenses that may be incurred in an engagement, or on a particular task or undertaking in furtherance of an engagement is inherently inexact and are always subject to unforeseen contingencies and changed facts and/or circumstances. Accordingly, we cannot be bound by any such estimates, and will not, except to the extent that we may expressly agree in writing at the time such estimate is given, limit our compensation to the amount(s) of any such estimates.
Joint Representation: In the event our representation involves more than one client (a “joint representation”), You acknowledge that joint clients can have differing, and sometimes sharply conflicting, interests and objectives regarding their legal needs. You acknowledge that each of You could choose to be represented by separate counsel in this matter. You have advised us that there are considerations of cost, as well as strategic advantages for each of You in joint representation, and that You would like to proceed in this manner. You have also advised us that You have agreed on all material issues concerning this matter.
You acknowledge and agree that, despite your current agreement on all material issues, your differing interests may subsequently develop into a conflict of interest between and among the clients of the joint representation. You further agree that if a conflict of interest arises, we may withdraw from the representation of one or more of You as we deem necessary to resolve the conflict. In that event, You agree that we may continue to represent the other(s), even if we subsequently take positions adverse to your interests in this matter. You further agree that we may continue to represent each joint client in unrelated matters.
One of the consequences of joint representation of multiple clients by a single lawyer or law firm is the sharing of confidential information concerning the subject matter of the joint representation. You acknowledge and agree that any material communications or information that we receive concerning this matter, including communications from any one of You, will be shared with each of You as we consider appropriate. You further acknowledge and agree that if a dispute arises between or among one or more of You, and we no longer represent You in this matter, as the result of a conflict of interest or otherwise, we may nevertheless use any confidential information we have concerning this matter adversely to You or to the advantage of those we continue to represent in any subsequent action relating to this matter.
Any of You may withdraw from this joint representation at any time for any reason, upon written notice to the firm. You acknowledge and agree, however, that: (1) You will remain responsible for your share of the firm’s fees and expenses incurred through the date on which notice is received by the firm; and (2) we may continue to represent the remaining clients of the joint representation consistent with the provisions of this letter, even if we subsequently take positions adverse to your interests in this matter.
Opportunity to Consult Independent Counsel. You acknowledge that, prior to entering into this engagement agreement, You have been advised and have had the opportunity to consult with independent counsel regarding the terms and conditions of this engagement.
Termination of Engagement: You will always have the right to terminate our representation of You in this engagement at any time and for any reason. Should You elect to do so, we will promptly issue a final statement for all professional services rendered and all costs and expenses incurred and/or advanced by us on Your behalf through the effective date of such termination or the later date of any court-required withdrawal and/or substitution of counsel. You agree that the final statement so issued following your termination of this engagement will be paid by You within ten (10) days from your receipt of the same.
We will likewise have, and hereby reserve, the same right of termination of this engagement (and any other representation of You) at any time and for any reason, subject only to leave of court (if required) and those obligations imposed upon us by the Rules of Professional Conduct of the Florida Bar. If we elect to exercise such right of termination, we will provide reasonable assistance to You in the transition of your representation to any successor attorney whom You may engage to handle the Matter. Upon written request, we will promptly surrender to You (and/or any such successor attorney) any documents, papers, funds and/or other property then in our possession to which You may be entitled, subject however, to our aforesaid lien rights and to our right to retain and/or copy any such documents, papers, funds and/or other property in our possession to the extent permitted by applicable law. In addition, we shall make available to You and/or any such successor attorney, at our premises such portion or portions of our file(s) regarding the subject matter of this engagement as are required by applicable law and the aforesaid Rules of Professional Conduct, for inspection and copying at your expense.
Applicability to Future Engagements: Unless a different engagement letter is executed in the future, the terms of this engagement letter will also be applicable to all subsequent matters as to which we may become involved or engaged on Your behalf.
Arbitration: You and the Firm have agreed to binding arbitration as to any claims or disputes related to or arising from this engagement. The arbitrator(s) shall determine and apply the law of Florida to the facts as found by the arbitrator(s). The Federal Arbitration Act (9 U.S.C., Secs. 1-16) shall govern the arbitration clause in this Agreement and the International Institute of Conflict Prevention & Resolution’s (“CPR”) Administered Arbitration Rules shall govern. Notwithstanding the CPR Rules, the scope of discovery, including third party discovery, shall be as set forth in Rule 26 of the Federal Rules of Civil Procedure.
You agree that You shall not pursue class or collective action claims. Each party in any such arbitration will bear its/his/her own attorneys’ fees, costs, and expenses (including filing fees). The parties will also bear the cost of arbitration (including arbitrator fees) pursuant to an agreed-upon allocation. Absent an agreement, the respondents (individually and/or collectively) shall bear no more than half the cost of arbitration.
If any party (or parties collectively) seek(s) less than $3,000,000, the dispute shall be decided by a mutually agreed single arbitrator. If any party (or parties collectively) seek(s) $3,000,000 or more at any point during the arbitration, a mutually agreed three person panel of arbitrators shall preside. The arbitrator(s), and not any court, shall have the exclusive authority to resolve any dispute or claim relating to the interpretation, applicability, or enforceability of this Agreement and its arbitration clause.
You understand that arbitration may provide only limited discovery and appellate rights and that courts may enforce an award in arbitration without reviewing it for errors of fact or law. No demand for arbitration may be sustained if the claim or dispute would be barred by the applicable statutes of limitation or repose if this matter was filed in court. The arbitrator(s) are authorized to dismiss the arbitration at any stage for any legally or factually supported reason.
If the total amount of the arbitration award is $5,000,000 or more, inclusive of interest, the parties shall have the right to appeal the award to a panel of mutually agreed three arbitrators comprised of former appellate court judges pursuant to the CPR Arbitration Appeal Procedures. The appellate arbitration panel shall review the facts and law pursuant to the standard of review that would apply if this proceeding was heard by an appellate court sitting in Florida.
Before agreeing to arbitration, You have the right to consult with independent counsel.
File Ownership/Client Property: The file(s) which we create during the course of this engagement (other than original signed documents and/or other papers or property that You may deliver to us or that we may receive from others, on your behalf, in the course of this engagement) are the property of and are owned by us. Accordingly, such files shall be subject to our continuing retention and/or destruction in accordance with such policies and/or procedures as we may adopt. If You should determine that our file(s) contain, or that we otherwise have in our possession, any original signed documents, papers or other property which belongs to You, we strongly recommend that You specifically identify the same to us and request the return of the same from us promptly, but in any event, not later than ninety (90) days following the conclusion or earlier termination of this engagement, after which we will assume no further responsibility for the same.
File Retention/Destruction: Upon the conclusion or any earlier termination of this engagement, our file(s) concerning this engagement will be officially closed. However, at that time, upon your request, and upon our receipt of payment in full of all sums which may then be due to us for professional fees and/or costs and expenses, we will promptly return to You all original signed documents, papers and other property which may then be in our possession or under our control which You specifically identify to us as belonging to You. Our own file(s) pertaining to this engagement, including, without limitation, our attorney work product and any documents, papers or other property belonging to You which You do not specifically request be returned to You, as aforesaid, will initially be retained by us and delivered to the person(s) in our firm responsible for administering our closed files and records retention program. Ordinarily, we would expect to retain closed files for a minimum of one (1) year. However, we reserve the right at any time thereafter and for any reason (including the minimization of unnecessary storage expenses) to continue to retain, or to dispose of, all of such closed file(s), or any portion or portions thereof, or any documents, papers or other property contained therein. We will, of course, accomplish the destruction or other disposition of our closed files in a manner consistent with our professional obligation to preserve the confidentiality of the materials and information contained therein.
Federal Tax Shelter Compliance/Disclosure Obligations: Although communications between us concerning this engagement are ordinarily protected from disclosure to third parties by the attorney-client privilege, Federal legislation and regulations promulgated by the United States Treasury Department directed toward the control of “abusive tax shelter transactions” now require that lawyers and law firms (a) establish and maintain a list of (i) certain types of “reportable transactions” on which they serve as a “material advisor” and (ii) the names of the parties involved in such transactions and (b) disclose that list to the U.S. Internal Revenue Service (“IRS”) upon the request/demand of the IRS. In certain instances, these new regulations also impose upon lawyers and law firms the affirmative obligation (irrespective of any request/demand from the IRS) to report to the IRS certain types of transactions on which they serve as a “material advisor” and the names of the parties involved in the same. These same regulations impose severe financial penalties on lawyers and law firms that fail to comply with these regulatory disclosure and/or reporting obligations.
At the outset of this engagement, we do not believe it to be of a type that will impose upon us any list maintenance and/or affirmative reporting obligations to the IRS under these regulations. However, it is possible that, as this particular engagement progresses and matures, we may reach a contrary conclusion concerning our list maintenance, disclosure and/or affirmative reporting obligations to the IRS with respect to the matter or transaction which is the subject of this engagement. Should that circumstance arise, before making any disclosures to or filing any report(s) with the IRS with respect to the matter or transaction which is the subject of this engagement, we agree to promptly advise You of our conclusion that the applicable regulations require that (i) we list such transaction and the names of the parties thereto and/or (ii) disclose that list or affirmatively report such transaction to the IRS.
Because of the severe financial penalties that may be imposed upon us for non-compliance with our disclosure and/or affirmative reporting obligations under these regulations and the current lack of clarity as to the applicability and/or impact of the traditional attorney-client privilege doctrine upon our disclosure and/or affirmative reporting obligations under these regulations, that circumstance will necessarily create a conflict of interest for us that may preclude us from advising You further as regards your legal right to assert the attorney-client privilege in order to protect that information from our required disclosure and/or reporting of the same to the IRS. Accordingly, should that circumstance (i.e., conflict of interest) arise, it may be necessary or advisable for You to promptly seek other legal counsel from outside of this firm to advise You concerning your right(s) and/or the procedure(s) that may be available to You to assert the attorney‑client privilege in order to protect that information from our required disclosure or reporting of the same to the IRS.
Use of Temporary Lawyers. From time to time, we may use the services of one or more temporary lawyers to assist us in our work. Their work will be closely supervised by the responsible firm lawyers. We will bill for these services either as a disbursement or as legal services as we agree.
In-Firm Privilege Consent Language. From time to time, issues arise relating to our ethical duties under the Rules of Professional Conduct that apply to lawyers. These might include, e.g., conflict of interest issues, and could even include issues raised because of a dispute between us and a client over the handling of a matter. Normally, when such issues arise, we seek the advice of our firm counsel, who is an expert in such matters. We consider such consultations to be attorney-client privileged communications between firm personnel and the counsel for the firm. A few courts, however, have held that under some circumstances such communications involve a conflict of interest between the client and the law firm and that our consultation with firm counsel may not be privileged, unless we either withdraw from the representation of the client or obtain the client’s consent to consult with firm counsel.
We believe that it is in Your interest, as well as the firm’s, that when legal ethics or related issues arise during a representation, we obtain expert analysis of our obligations. Accordingly, You agree that if we determine during the course of the representation that it is either necessary or appropriate to consult with our internal or outside counsel, we have Your consent to do so and that our representation of You shall not, thereby, waive any attorney-client privilege that we may have to protect the confidentiality of our communications with counsel.
Security Laws. Our engagement does not include any advice or other legal services relating to federal or state securities laws, including appearing or practicing before the U.S. Securities and Exchange Commission (SEC) or Your disclosure obligations under such laws, and we understand that You will not, without our prior written consent, include documents or information we provide to it in any filings with federal or state securities regulators, including the SEC.
Meritas: Our firm is a member of Meritas, which is a network of independent business and commercial law firms located in major cities throughout the world. Members of Meritas are not engaged in the joint practice of law and do not share fees among themselves. However, our membership in Meritas provides us and our clients with immediate access to legal resources in other jurisdictions throughout the United States and most foreign countries so that the needs of our clients for legal services elsewhere can be handled virtually anywhere in the world. In addition, our membership in Meritas affords us and our clients access to and support in virtually any substantive area of legal practice, including those in which our firm does not ordinarily practice. While we will only utilize the services of another Meritas firm in connection with the professional services provided to our clients with our client's express knowledge and consent, we want all existing and prospective clients of our firm to be aware of our membership in Meritas and its potential benefits to them. Further important information about Meritas can be obtained at the Meritas website at www.meritas.org.