FLAT FEE TERMS OF SERVICE
These are the Firm Client Services Terms of Klemchuk LLP (these “Terms”). For purposes of these Terms, “We”, “Us” and the “Firm” shall refer to Klemchuk LLP. “You” and the “Client” shall, unless otherwise specified, refer to a client of the firm that has executed a written Firm engagement agreement that has been accepted by the Firm.
These Terms govern the services we may provide to you as described in the Flat Fee Services page of our website.
Scope of Engagement/Consultation. Once you enter into a fully executed Flat Fee Engagement and pay the Flat Fee, you are engaging the Firm to represent you, with full power of revocation and substitution, solely to provide the limited scope of services as provided in the Flat Fee Engagement and as detailed on the appropriate Flat Fee services web pages for the service you request. In addition to these Terms, our representation of you is governed by the Flat Fee Engagement and by the terms and limitations provided on the Flat Fee services web pages for the service you request.
NOTE: For Flat Fee Legal Consultations, you are NOT ENGAGING THE FIRM AS LEGAL COUNSEL. This is a one-time Consultation only. Although the firm will treat our conversation as confidential and protected by the attorney-client privilege, you are not engaging our firm for any legal work or further Consultation. For Consultations, we will not open or maintain any files for your matter, nor will we retain any documents or information other than the Flat Fee Consultation Agreement.
Automatic Termination. Unless previously terminated, our representation will automatically terminate at the completion of the Flat Fee project. As this point the firm will be deemed to no longer be representingyouwithout any further notice or action on our part. If you wish you engage the Firm to provide additional legal services, you will need to enter into a new engagement agreement with the Firm.
Termination will not entitle you to receive any refund of any Flat Fee payment unless the Firm terminates without “good cause” (defined below).
We reserve the right to withdraw from our representation of you at any time with your consent or for good cause. “Good cause” includes your breach of the terms of our engagement, including these Terms, your refusal to cooperate with us or to follow our advice on a material matter, your failure to respond to requests for information or materials in a timely manner, your failure to pay our fees and expenses incurred in a timely fashion, or any facts or circumstances that would render our continuing representation unlawful, unethical or inconsistent with our principles or the degree of trust and communication necessary for the attorney-client relationship. This right is in addition to those created by statute or recognized by the rules of professional responsibility. You will remain liable for all fees and costs incurred prior to our withdrawal.
Additionally, although we anticipate a successful and satisfying relationship with you, you retain the right at any time to terminate our services upon notice to us, and we will cease to render additional services immediately after receiving such notice.
When termination occurs, papers and property that you have provided to us will be returned to you promptly. Copies of papers we have created for you and given to you, which you may need but no longer have, may (at our discretion) be made available to you, unless they have already been shared with you. We reserve the right, in accordance with our File Retention/Destruction policy (as described below) and subject to any applicable laws or rules of professional responsibility to the contrary, to destroy any items in our files that are retained by us. We will not be responsible for providing copies of documents or materials that we have previously submitted or otherwise made available to you or your agents, including, without limitation, emails in which you were a recipient – or that are otherwise available from third parties (e.g., via the Internet, USPTO, Texas Secretary of State, etc.)
Contractors. Depending on the extent of the services the Firm is asked to provide, We may call upon other lawyers, contractors, consultants or legal assistants to assist in our representation. In addition, we may call upon other attorneys (“additional counsel”), paralegals, and non-attorney experts who are well-known to us to work under our supervision, if appropriate for our representation and for the purpose of ensuring that high-quality, cost-effective and timely services are provided to You. If any such additional persons are retained, the Firm will bill you at a rate higher than the Firm pays them in order to cover the costs of Firm administration, supervision and overhead. However, this will not alter your Flat Fee.
Billing Terms and Procedures. Flat fees must be paid in advance and are based on the rates posted on the Flat Fee services web pages for the service you request, unless otherwise agreed in writing prior to the Firm starting on your project. Our rates are subject to change from time to time.
Prior to initiation of work on any project, you must submit the total Flat Fee, which will include our time as well as anticipated expenses. Our representation of you does not begin until the full execution (by you as well as the Firm) of the Flat Fee Engagement or Consultation Agreement (as appropriate) and the payment by you of the entire Flat Fee (including all calculated/estimated expenses). If all the above is not completed within ten days of the date you submit a signed Flat Fee Engagement or Legal Consultation Agreement (as appropriate), our offer of representation shall be considered revoked and any representation terminated.
The Firm will, in its sole discretion, determine the appropriate staffing of your work, including, as needed, the engagement of third parties and experts, having regard to its nature, complexity and urgency, as well as its efficient discharge. You should feel free to contact the Firm with any questions or issues you may have regarding our representation.
In the event the Firm incurs additional expenses, you agree to timely payment of the Firm’s invoices for fees and expenses related to the representation. You agree that the Firm may charge interest equal to 8% APR, or the highest lawful rate of interest, whichever is lower, beginning on the 30th day after the invoice is sent to You.
Conflicts of Interest. As you know, we represent a large number of clients in a wide variety of matters. There is a possibility that other clients or prospective clients (who may be competitors of yours or have interests that may be adverse to yours) may call upon our Firm for professional services in the future. There may even be situations in which the Firm is asked to represent another client in a matter that is directly adverse to you.
We will always honor our duty of confidentiality to you and protect your information. We expect that, so long as we act in accordance with ethical requirements, you would consent to our representation of other persons or entities whose interests are adverse to you or your affiliates in matters not substantially related to our engagement by you. We agree, however, that we will not act adversely to you in any instance where, as the result of our representation of you, we have obtained sensitive, proprietary or other confidential information of a nonpublic nature that, if known to any such other client of ours, could be used in a matter in which we are retained by our other client to your or your affiliates’ material disadvantage.
You also understand that we may obtain confidential information from other clients that might be of interest to you, but which we cannot share with you.
Guarantee Disclaimer. It is important that You understand and accept that the Firm cannot make, and has not made, any guarantee regarding the outcome of this representation. Nothing in this agreement and no statements by the Firm staff or attorneys constitutes a promise as to results, or a guarantee. Any statements by the Firm about the outcome of these matters are expressions of opinion only.
SPECIAL NOTE Regarding Trademark and Copyright Searches and Applications. The Firm will make all reasonable efforts to obtain favorable results with respect to trademark and copyright search and registration matters (collectively, “IP matters”). However, the Firm cannot, and does not, make any promises or guarantees regarding the outcome of any particular IP matter or application. Any recommendations or opinions regarding the use of a product, work, or mark, or the likelihood of success of any application are merely estimates based on our past experience, and based on the information available to us at the time, and should not be the sole determining factor in deciding to pursue an application or use a given mark or copyrighted work or invention. Furthermore, the Firm cannot guarantee that any trademark or copyright search will uncover all possible conflicting uses of a mark or a confusingly similar mark or prior work. This is particularly true of “Design” or combination trademark searches, which have so many variables.
For our Flat Fee Trademark services, no full or partial refunds of any fees will be issued once a search is initiated by us, including, but not limited to, situations where you decide not to pursue an IP Matter or application after receiving our search report, or an application is abandoned by you (affirmatively or through lack of responsiveness) or rejected by the USPTO, US Copyright Office, or any state trademark office for any other reason. Please note that we consider all applications abandoned by you if you fail to authorize the filing of an application within thirty (30) days after we submit a search report to you, or if you fail to respond to a request from us related to such search or application within thirty (30) days, unless a different date for responding is listed in the request.
To ensure that all deadlines are met in relation to prosecution of trademark and copyright applications, we will maintain an active docket concerning all mandatory response deadlines for your trademark and copyright files until the application is finally approved or rejected by the USPTO, US Copyright Office, or relevant state trademark office, or until the application is abandoned by you. The Firm considers our work on a trademark or copyright file ended once a mark or copyrighted work is registered or abandoned. Thereafter, you retain all liability for ensuring that all deadlines are met, including, but not limited to, renewals. Any further services we provide in connection with such marks or works, such as sending reminders for renewals, notices of potential infringement by others, etc., are merely provided as a courtesy to you. Unless otherwise specifically agreed in writing, we do not assume liability for notifying you of any such deadlines or ensuring that such deadlines are met. Similarly, although we will use reasonable efforts to report any information related to possible infringement activity relating to one or more of your marks or works, we assume no liability to police any of your marks for such infringement, nor to report such findings to you.
If the firm has no other work pending with you besides one or more trademark application(s), our representation automatically terminates upon the registration of the marks, or the final refusal or abandonment of the applications.
SPECIAL NOTE Regarding Entity Formations. Unless otherwise agreed in writing, if a client is initially engaging the Firm as an individual to form a legal entity, the Firm will only represent the individual client signing our Flat Fee Engagement and only to the extent necessary to make the initial entity formation filing. Automatically and immediately thereafter, the Firm will cease to represent the individual. The Firm will not represent the new entity unless the entity executes an engagement agreement with the Firm.
SPECIAL NOTE Regarding Tax & Securities Laws. The Firm provides transactional representation of buyers, sellers, investors and other persons in a variety of business deals. However, the Firm does not provide tax advice, nor provide counsel on tax or securities law, including the implications of such laws and regulations on any specific transaction, such as (without limitation) compliance with state or federal registration, notices, exemptions, investor qualification, “blue sky” notices, or mandatory filings and similar requirements.
SPECIAL NOTE Regarding Flat Fee Legal Consultations. For Flat Fee Legal Consultations, you are NOT ENGAGING THE FIRM AS LEGAL COUNSEL. This is a one-time Consultation only. Although the firm will treat our conversation as confidential and protected by the attorney-client privilege, you are not engaging our firm for any legal work or further Consultation. We will not open or maintain any files for your matter, nor will we retain any documents or information other than this agreement.
We will not review any materials in advance of the Consultation, nor conduct any research or investigation. This initial Consultation does not create any obligation on the part of the firm to represent you further, nor does it obligate you to engage the firm for any additional work. Should you wish to engage the firm as legal counsel, you will need to execute a separate engagement agreement with firm.
The Consultation is intended to be a basic strategic discussion only. You understand that a single Consultation is insufficient to fully understand your legal needs and concerns, and all the risks and options available to you. Moreover, any recommendations or advice given to you during the Consultation will be based on the limited information provided by you during the Consultation.
General Responsibilities of Attorney and Client. We will provide services of a strictly legal nature, as has previously been described in general terms. We will keep you apprised of developments and will consult with you as necessary to ensure the timely, effective and efficient completion of our work, but you acknowledge that we cannot guarantee the outcome of our legal services on your behalf.
You will provide us with such factual information and materials as we require to perform the foregoing services and will make such business or technical decisions and determinations as are appropriate. It is understood that you are not relying on us for business, investment or accounting decisions, or to investigate the character or credit of persons with whom you may be dealing. You will not fail to share with us documents or information, nor will you otherwise withhold information or documents that are germane to the work we perform for you and that could affect the advice we give you, representations we make to others, and/or strategies we recommend or employ on your behalf.
As a matter of our professional responsibility and as long as in our judgment it will not substantively injure your position in this matter, we retain control over decisions affecting our reputation and professionalism, such as whether to extend deadlines for opposing counsel or parties; whether to cooperate with opposing counsel or parties in scheduling or similar matters; and whether and how matters should be argued in correspondence, pleadings or to a court or administrative body.
From time to time, we may provide you newsletters or similar materials regarding general legal developments or matters of current interest. Similarly, we may invite you to attend seminars or symposia where legal topics are discussed. We do so with the hope that such information or events will be educational because a well-informed client will be better equipped to make decisions about the need for future legal representation. However, it is understood that communications of such character do not constitute the rendition of legal advice, and they do not create an attorney-client relationship that is not otherwise already in existence between you and our Firm.
Disputes. Please contact us at any time to discuss any aspect of our work for you. We believe that you, as our client, are the very reason for our existence as a law firm and will make ourselves available to address any concerns you may ever have. You agree to submit any disputes in connection with this agreement to mediation prior to initiating any suit or other proceeding and agree that the parties shall share the mediation costs equally. Each party shall bear their own costs related to any legal representation they engage in connection with such mediation.
File Retention/Destruction. We generally do not retain paper or physical files except in rare instances. We may keep digital copies of your materials on a third-party cloud-based server, and our computers are also backed up to a separate third-party cloud-based system. The systems we use employ some of the best security protocols available, and are generally more secure than most law firm internal proprietary systems, but even these are not without risk of breach. We cannot and do not assume any liability for a breach of any such third-party cloud server or backup system.
It is our policy to retain these materials and documents in our files for as long as a file remains open. Once a matter terminates, we will retain these files for three (3) years from the date of termination or closing of the file, at our expense. Thereafter, it is our policy to destroy such material unless otherwise prohibited by law or rules of professional responsibility, or absent a specific written agreement with you dictating a different retention period. Once our retention obligation ends, we have no responsibility or liability for any files or materials left in our care. This policy includes, but is not limited to, any written materials or correspondence, our notes and memoranda, CD-ROMs and other media, samples and exhibits, emails or other electronic files and data, regardless of the source of any such materials.
E-mail. Email confidentiality is generally reliable and secure but is not infallible. Security breaches are possible, so use caution in what you send via email. We make reasonable attempts to exclude from our emails and any attachments any virus or other defect that might affect any computer or IT system. However, it is your responsibility to put in place measures to protect your computer or IT system against any such virus or defect, and we do not accept any liability for any loss or damage that may arise from the receipt or use of electronic communications from us.
Waiver. The waiver of any of these Client Services Terms in any specific instance shall not constitute a waiver of any other policies, nor shall is constitute a waiver of the waived policy for any future instances.
Post-Engagement Matters. After completion of any matter, changes may occur in the applicable laws or regulations that could have an impact upon Your future rights and liabilities. Unless You engage us to provide additional advice on issues arising from the matters, the Firm will have no continuing obligation to advise You with respect to future legal developments.
Amendments. These Terms may be amended at any time by the Firm. In the event of such an amendment, the amended version of these Terms will be posted on this page of the Firm Site. In addition, each invoice to you will include a link to this page. We encourage you to review this page periodically. Your continuing engagement of the Firm constitutes an acceptance of these revised Terms, which may be further amended from time to time.
Miscellaneous Provisions. These Terms supersede all prior oral or written agreements regarding the Firm’s representation of You. Nothing in these Terms are intended or shall be construed as impermissibly waiving or limiting the Firm’s or its attorneys’ professional obligations to You or to the profession under the Disciplinary Rules of Professional Conduct adopted by the State Bar of Texas or other law, including the Sarbanes-Oxley Act of 2002. These Terms shall be binding upon You and the Firm, and our respective heirs, executors, legal representatives, successors, and assigns.
Grievances. The State Bar of Texas investigates and prosecutes professional misconduct by Texas attorneys. Although not every complaint against or dispute with an attorney involves professional misconduct, the Office of General Counsel of the State Bar of Texas will provide you with information about how to file a complaint. For more information, please call 1-800-932-1900.
THE TEXAS LAWYER’S CREED
A MANDATE FOR PROFESSIONALISM
Promulgated by
The Supreme Court of Texas and the Court of Criminal Appeals
November 7, 1989
I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.
I. OUR LEGAL SYSTEM
A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.
I am passionately proud of my profession. Therefore, “My word is my bond.”
I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
I commit myself to an adequate and effective pro bono program.
I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
I will always be conscious of my duty to the judicial system.
II. LAWYER TO CLIENT
A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.
I will advise my client of the contents of this creed when undertaking representation.
I will endeavor to achieve my client’s lawful objectives in legal transactions and in litigation as quickly and economically as possible.
I will be loyal and committed to my client’s lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
I will advise my client that civility and courtesy are expected and are not a sign of weakness.
I will advise my client of proper and expected behavior.
I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
I will advise my client that we will not pursue tactics which are intended primarily for delay.
I will advise my client that we will not pursue any course of action which is without merit.
I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client’s lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.
III. LAWYER TO LAWYER
A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.
I will be courteous, civil, and prompt in oral and written communications.
I will not quarrel over matters of form or style, but I will concentrate on matters of substance.
I will identify for other counsel or parties all changes I have made in documents submitted for review.
I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.
I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.
I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.
I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.
I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel’s intention to proceed.
I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
I will refrain from excessive and abusive discovery.
I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
I will not seek sanctions or disqualification unless it is necessary for protection of my client’s lawful objectives or is fully justified by the circumstances.
IV. LAWYER AND JUDGE
Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.
I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.
I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.
I will be punctual.
I will not engage in any conduct which offends the dignity and decorum of proceedings.
I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
I will respect the rulings of the Court.
I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.
ORDER OF THE SUPREME COURT OF TEXAS
AND THE COURT OF CRIMINAL APPEALS
The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.
The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.
The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics instead of being part of the solution have become part of the problem.
The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.
These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.
We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.
The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt
“The Texas Lawyer’s Creed – A Mandate for Professionalism” as attached hereto and made a part hereof.
In Chambers, this 7th day of November, 1989.
The Supreme Court of Texas
Thomas. R. Phillips, Chief Justice
Franklin S. Spears
C. L. Ray
Raul A. Gonzales
Oscar H. Mauzy
Eugene A. Cook
Jack Hightower
Nathan L. Hecht
Lloyd A. Doggett
Justices
The Court of Criminal Appeals
Michael J. McCormick, Presiding Judge
W. C. Davis
Sam Houston Clinton
Marvin O. Teague
Chuck Miller
Charles F. (Chuck) Campbell
Bill White
M. P. Duncan, III
David A. Berchelmann, Jr.
Judges