Lemoine & Lefebvre, LLP
Attorneys and Counselors at Law
115 Perimeter Center Place, Suite 640
Atlanta, Georgia 30346
Phone: 770.351-0099 – Fax 770.351-0097
www.lemoine-lefebvre.com
TERMS AND CONDITIONS
- GENERALLY APPLICABLE TERMS.
By clicking “OK”, CLIENT specifically and expressly (1) accepts and agrees with the following terms and conditions, and (2) agrees and acknowledges having read, reviewed and understood the same, and (3) agrees and acknowledges that CLIENT has had the time to review the same and obtain independent advice thereon.
CLIENT has engaged Lemoine & Lefebvre, LLP (“C&L”) to undertake its general representation in the United States of America, which C&L accepts.
These legal services will be provided to CLIENT by C&L’s Atlanta office. C&L’s services will be charged to CLIENT at the then applicable hourly rate, which is subject to change at C&L’s discretion on the 1st of January of each calendar year, or at a flat fee or on a contingency fee basis, provided that flat fee and contingency fee basis arrangements must be specifically agreed to in writing by C&L.
This Agreement is effective upon CLIENT clicking “OK” on the corresponding window on C&L’s web site, upon payment by CLIENT to C&L of C&L’s first invoice to CLIENT, or upon CLIENT accepting services from C&L, or, if applicable, upon payment by CLIENT to C&L of a non-refundable advance on fees in the amount set forth in a C&L retainer invoice (the “Retainer”), whichever comes first. CLIENT understands that the Retainer, if any, is an advance on fees only, which will be immediately used by C&L’s initial review of CLIENT’s case and C&L’s initial work, as such work has been explained by C&L to CLIENT, and, unless otherwise provided in writing by C&L, does not represent a fixed price for the services to be rendered, nor does it imply a cap on the fees and expenses to be charged by C&L to CLIENT. Unless otherwise provided in writing by C&L, the Retainer shall not be deposited on C&L’s IOLTA Account as a guarantee on fees to be earned and expenses to be reimbursed, but shall be applied immediately to defray the cost of work to be done. C&L reserves the right to request client to provide another Retainer in the same amount upon exhaustion of the first Retainer before providing CLIENT with further services. All fees and expenses charged by C&L to CLIENT which will not be contested in writing by CLIENT within thirty (30) calendar days after CLIENT’s receipt of the corresponding invoice will be deemed accepted by CLIENT and will be owed C&L by CLIENT, even if such expenses were not approved in advance by CLIENT. CLIENT agrees that all international travel by C&L attorneys will be in business class.
Fees and expenses for corporate operations such as joint ventures, mergers, acquisitions, and/or loans must be paid in full at closing at the latest. CLIENT expressly authorizes C&L to pay itself directly and promptly for all fees and expenses from funds received by C&L on behalf of CLIENT on C&L’s IOLTA account, regardless of the destination and/or origin of the funds, and even if such funds partake of a transaction unrelated to the matter for which C&L is seeking collection of fees and expenses. All litigation and arbitration settlement funds shall be first paid through C&L’s IOLTA account. C&L reserves the right to revise its hourly rates on the first day of each calendar year. C&L shall have a retaining lien and a charging lien on all CLIENT’s documents, property (both real and personal, regardless of homestead, even if CLIENT is a resident of the State of Florida), or money in C&L’s possession or another’s for CLIENT’s benefit (including, without limitation, any financial institution) for the payment of all sums due under this Agreement, and upon property or funds received by CLIENT by settlement, judgment or otherwise, or which was an issue in any litigation. CLIENT expressly agrees that CLIENT has received notice of such liens, and that exercise by C&L of his rights hereunder shall not constitute conversion. This clause shall survive the termination of this Agreement.
This Agreement is subject to termination only as follows:
- CLIENT reserves the right to terminate the representation for cause if C&L fails to honor this Agreement. Notification of the termination shall be made in writing to C&L. In the event of any such termination by CLIENT, C&L waives any further rights to compensation relative to the representation; provided, however, that (1) if C&L is on an hourly basis, CLIENT shall promptly reimburse C&L for all other fees, charges and expenses incurred pursuant to this Agreement prior to the date of such termination, (2) if C&L is on a flat fee basis the totality of the flat fee will become immediately due and payable by CLIENT to C&L, and (3) if C&L is on a contingent fee basis, all expenses incurred by C&L will be immediately reimbursed by CLIENT to C&L, and (a) if CLIENT hires another attorney, then C&L shall be entitled to a share of the fee earned by any other attorney(s) pro rata the number of hours spent on CLIENT’s case, and (b) if CLIENT does not hire another attorney and abandons the case, then CLIENT will compensate C&L on an hourly fee basis at C&L’s then highest rates. This clause shall survive the termination of this Agreement.
- C&L reserves the right to withdraw from the representation of CLIENT if CLIENT fails to honor this Agreement or for any just reason as permitted or required under the Rules of Professional Responsibility of the State Bar of Georgia or as permitted by the rules of the courts of the State of Georgia. Notification of withdrawal shall be made in writing to CLIENT. In the event of such withdrawal, C&L waives any further rights to compensation relative to the representation; provided, however, that (1) if C&L is on an hourly basis, CLIENT shall promptly reimburse C&L for all other fees, charges and expenses incurred pursuant to this Agreement prior to the date of such termination, (2) if C&L is on a flat fee basis the totality of the flat fee will become immediately due and payable by CLIENT to C&L, and (3) if C&L is on a contingent fee basis, all expenses incurred by C&L will be immediately reimbursed by CLIENT to C&L, and (a) if CLIENT hires another attorney, then C&L shall be entitled to a share of the fee earned by any other attorney(s) pro rata the number of hours spent on CLIENT’s case, and (b) if CLIENT does not hire another attorney and abandons the case, then CLIENT will compensate C&L on an hourly fee basis at C&L’s then highest rates. This clause shall survive the termination of this Agreement.
- C&L reserves the right to suspend work on CLIENT’s case if CLIENT has an invoice past due over sixty (60) days, in which case CLIENT will be charged, and shall pay, a reinstatement fee of fifty dollars ($50.00) before C&L resumes working.
- Upon termination of this representation for any reason, by either CLIENT or C&L, C&L agrees to cooperate with any successor counsel to accommodate a smooth transition of the representation, subject to anything to the contrary herein.
- CLIENT expressly agrees that none of the debts, of any nature whatsoever, owed by CLIENT to C&L pursuant hereto shall be dischargeable in bankruptcy.
- This Agreement is subject to Georgia law, except its conflict of laws rules. Any and all dispute between CLIENT, as well as CLIENT’s subsidiaries, affiliates, sister entities, officers, managers, directors, shareholders, agents, successors and assigns, on the one hand, and C&L, on the other hand, without exception, including, without limitations, all disputes regarding the validity of this Agreement and/or its breach, shall be subject exclusively to arbitration pursuant to the rules of the American Arbitration Association. The American Arbitration Association shall administer the arbitration proceedings. The arbitration proceedings shall be confidential, except its enforcement and collection proceedings; each breach by CLIENT of this confidentiality clause shall entitle C&L to the payment by CLIENT to C&L of the sum of fifty thousand dollars ($50,000.00) in liquidated damages, plus expenses and attorneys’ fees expended by C&L to collect the same. There will be only one arbitrator. Venue, place and seat of the arbitration proceedings shall be Atlanta, Georgia, and the arbitration shall take place at the Atlanta Center for International Arbitration and Mediation, Georgia State University College of Law, 85 Park Place, Atlanta, GA 30303, and the language of the arbitration proceedings shall be English, and each Party shall be and remain responsible for its own attorney’s fees and arbitration costs, except that CLIENT shall reimburse C&L for its attorneys’ fees and arbitration costs if the arbitrator decides that some fees and expenses remain owed to C&L. The arbitrator shall be the sole judge of the arbitrability of the matters put forth before him/her, and shall definitely rule on the merits within one hundred and twenty (120) calendar days as of his or her appointment. The Parties will have to attend at least one (1) mediation session before the arbitrator may rule. The mediator and the arbitrator shall be selected from the American Arbitration Association list of accredited arbitrators. Should the Parties fail to appoint a mediator or an arbitrator within ten (10) calendar days from receiving the list of mediators or arbitrators from the American Arbitration Association, the American Arbitration Association shall have full authority to appoint a mediator and/or an arbitrator. The arbitrator shall have full injunctive power and shall have the power to consider and issue dispositive motions pursuant to Section 56 of the Federal Rules of Civil Procedure, including applicable circuit court case law. The arbitrator’s decision shall have immediate and automatic full force and effect without the need for any Party to seek validation, recording, transformation into a court order or enforcement by a court of law; notwithstanding the foregoing, either Party shall have the right to seek the enforcement of the arbitrator’s decision before any court of law or equity including, without limitation, the right to seek an injunction, if such Party deems it necessary. CLIENT expressly agrees to submit himself/herself/itself to such arbitration only and expressly renounces any other jurisdiction, and CLIENT expressly renounces any and all privilege of jurisdiction, including, without limitations and if applicable, the privilege set forth in Articles 14 and 15 of the French Civil Code or any other equivalent provision of any other body of law including, without limitations, the Constitution of the United States of America, the Constitution of CLIENT’s country of residence or nationality, the laws of any State other than the State of Georgia, and the laws of any other foreign jurisdiction. This arbitration clause shall remain valid between its parties and shall remain in full force and effect should this Agreement be deemed invalid, null or void. Should this arbitration clause be deemed in violation of a rule of the American Arbitration Association, this arbitration clause shall prevail. No claim shall be filed by a Party against the other as of one hundred and eighty (180) calendar days as of the date of termination of CLIENT’s representation by C&L. The right to arbitrate will not be waived, and no delay for arbitration to ripe, and no stay of the arbitration proceedings may be requested by any Party at any time. The rules of the American Arbitration Association are expressly incorporated herein.
This Agreement contains the complete agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written, and it may only be modified by a written amendment signed by a partner of C&L’s.
- IF CLIENT IS ON AN HOURLY OR FLAT FEE BASIS.
CLIENT and C&L agree that the following method is to be used for determining the proper amount of legal fees:
- The time expended to perform the legal services for CLIENT will be the basis for determining the total legal fees to be paid, unless C&L and CLIENT have agreed to a flat fee.
- The hourly rate does not include other fees, charges and expenses as described hereunder.
- CLIENT acknowledges that C&L may incur various expenses in providing services to CLIENT. CLIENT agrees to reimburse C&L all reasonable out-of-pocket expenses paid by C&L. Such expenses include, but are not limited to, charges for serving and filing papers, database research fees, courier or messenger services, recording and certifying documents, telecopy, long distance telephone calls, copying materials, overtime clerical assistance, travel expenses, electronic discovery assistance fees and expenses, postage and notarial attestations. Ordinarily, such expenses equal between 10% and 15% of the legal fees.
CLIENT and C&L agree to the following schedule of billing and payments for fees and expenses:
- C&L fees, the charges and expenses incurred by C&L as well as other fees, charges and expenses paid by C&L for CLIENT will be billed monthly by C&L to CLIENT.
- CLIENT agrees to pay the amount of the invoices submitted by C&L within thirty (30) days of the billing date, until full payment of C&L’s invoices. To that effect, CLIENT expressly authorizes C&L to debit the IOLTA Account, if any, of an amount corresponding to the fees earned and the expenses charged. This arrangement may be modified, upon due notice to CLIENT and subject to the agreement of C&L and CLIENT, if the services requested by CLIENT are such that the amount of corresponding fees and expenses significantly outpaces the above payment schedule.
- All invoices submitted by C&L which will not be fully satisfied within thirty (30) days shall be subject to late fees at the annual rate of 16%, compounded on a monthly basis. Such late fees may also be withdrawn from monies held on the IOLTA Account by C&L, if any. In the event of termination of the relationship between C&L and CLIENT, CLIENT thereby expressly agree that C&L will have an automatic attorney’s lien on CLIENT’s file until C&L’s fees and expenses are paid in full by CLIENT, and CLIENT hereby expressly waives any right to notification of such lien.
C&L agrees to include in the billing statements sent to CLIENT a general identification of the services of C&L for which CLIENT is being charged and a specific identification of all other fees, charges and expenses for which C&L seeks reimbursement.
C&L agrees to assert a diligent effort to assure that CLIENT is informed at all times as to the status of the matters for which advice is being sought by CLIENT and to the courses of action which are being followed, or are being recommended, by CLIENT. All of C&L’s work product will be owned by C&L.
- IF CLIENT ENGAGED C&L ON A CONTINGENCY FEE BASIS.
CLIENT specifically and expressly agrees to pay C&L the contingency fee set forth in the engagement letter signed by CLIENT with C&L.
In any event, if a Notice of Appeal is filed concerning CLIENT’s action or post-judgment relief or action is required for recovery of the judgment, then and additional five percent (5%) of any gross recovery (present value) shall be charged in addition to the fee limitations stated in the engagement letter.
Alternatively, in the event that Fees are awarded by the court payable by another party or a settlement is reached wherein fees are paid any another party, there shall be no limit as to the amount of fees paid to C&L. In the event that the fees exceed the percentages listed above, said amount shall be retained by C&L. If the fees awarded are less than the percentages listed above, CLIENT shall be responsible for paying the difference out of his/her award or settlement.
It is understood that CLIENT remains fully responsible for all court costs and other out-of-pocket expenses incurred by C&L in the investigation and prosecution of CLIENT’s case, including, without limitations, experts fees, correspondence and courier expenses, court fees, outside secretarial and support staff, copies, long distance telephone calls, overtime clerical assistance, travel expenses, charges for serving and filing papers, database research fees, electronic discovery assistance fees and expenses, private investigator fees, arbitration/arbitrators fees and expenses, mediation/mediators fees and expenses.
CLIENT specifically and expressly authorizes C&L to fully investigate CLIENT’s claim, and should C&L file suit or other legal proceedings on CLIENT’s behalf, to fully prepare for and prosecute the same. If, after reasonable investigation of such claim(s) C&L determines it is not feasible to prosecute such claim, upon notification to CLIENT of such fact C&L may withdraw from representation under this Agreement.
Should CLIENT decide to terminate, dismiss (without or without prejudice), or otherwise abandon CLIENT’s contingency fee claim, CLIENT shall promptly pay C&L C&L’s full fee at C&L’s then highest hourly rates, as well as the totality of expenses incurred by C&L in connection with CLIENT’s claim, even if such expenses were not approved in advance by CLIENT.
- IF CLIENT IS ENGAGED IN LITIGATION.
It is understood and agreed that neither C&L nor CLIENT shall settle any claims without first having obtained consent thereto of the order.
As CLIENT is aware, a potential claim, dispute, litigation, investigation or audit may be commenced by CLIENT or against CLIENT. Therefore, CLIENT is required to preserve all data relevant to the potential claim/dispute/litigation/investigation/audit. Failure to preserve documents may cause a court or governmental or other agency to impose penalties and sanctions against CLIENT. Said penalty or sanctions may also result in the loss of a claim, litigation or investigation or a judgment against CLIENT.
Specifically, CLIENT must preserve all relevant paper and electronic documents and data, including, but not limited to:
- Electronic files. Retain all relevant electronic files, including active files, archived files, deleted data which is currently recoverable and legacy data relevant to the dispute. Relevant information may be in various electronic formats, such as e-mails, voicemails, text messages, instant messages (IMs), calendars, diaries and word processing files, spreadsheets, PDFs, JPEGs, PowerPoint presentations, Access, Oracle and other databases, including cloud-based storage, temporary internet files, cookies and .ZIP files, among others, wherever it resides, including the Internet.
- Paper documents. Preserve all paper copies of files, presentations, calendars, diaries, notebooks, and other physical paperwork related to the matter, even if duplicate copies may exist in electronic format.
- Other materials. Relevant information is not always presented as a document. Other relevant data (for example, models, diagrams, images and presentations) also must be retained.
- Subsequently-made documents. CLIENT’s duty to preserve relevant information is ongoing. CLIENT must be sure to preserve all relevant documents that are composed or received after CLIENT’s receipt of this letter.
- Electronic hardware and software. Maintain a copy of hardware and software needed to view electronic files, including all relevant encryption and de-encryption systems, compression and decompression software and relevant passwords. If hardware containing relevant information is replaced or becomes outdated, retain the appropriate hardware so that relevant data still may be accessed.
To ensure that all relevant documents are preserved, C&L suggests that CLIENT take the following steps immediately:
- Suspend all data destruction policies. Until CLIENT identifies the location of all potentially relevant data, all data destruction policies, including backup tape recycling, should be suspended. This suspension should continue for those locations that contain relevant information for the duration of the case/matter/dispute/investigation/audit.
- Identify the locations of relevant data. Consider all possible locations and types of data that may be relevant, including data stored on proprietary databases, thumb drives and employees' personal devices. After all locations containing relevant data are identified, you may resume regular data destruction policies for locations without relevant information.
- Identify employees with relevant data. List all employees who may have possession or control over potentially relevant data, including:
- key players and their assistants;
- employees in relevant business units;
- records department personnel;
- IT personnel; and
- other employees that may deal with document retention or storage of documents or data (including former employees' files).
- Inform affected employees. Immediately draft and distribute a litigation hold notice to all employees who have relevant data, which explains the purpose and scope of the litigation hold and the actions they must take to comply with it. Keep a record of all employees who receive this notice. If CLIENT needs assistance preparing a litigation hold notice, please contact C&L.
- Notify affected third parties. Third parties that may have relevant information may include:
- former employees;
- consultants and professionals;
- vendors;
- any applicable parent company, sister companies, and subsidiaries; and
- cloud storage providers.
- Develop a collection process. Ensure that all relevant data and other material is stored and organized in an efficient and safe manner. Paper documents and electronic storage of relevant data should be maintained under lock and key.
It is imperative that CLIENT follows the terms of this preservation request. Accordingly, if CLIENT has any questions regarding this preservation request, please feel free to contact C&L for more guidance.
