Free Response in Support of Motion - District Court of Arizona - Arizona

SACKS TIERNEY P.A.
TERMS OF REPRESENTATION AND
FEE AGREEMENT
1. Description of Legal Services. We will be representing Liz Claiborne, Inc. as local counsel
in defending the patent infringement lawsuit filed by the Lemelson Medical, Education &
Research Foundation in the District Court of Arizona under Case No. CIV 'OO 0661 PHX PGR.
This description is not all inclusive, and should not be construed as a complete statement of the
work we will provide in this matter. Issues often arise during the course of representation that
cannot be predicted in advance; we will advise you as these issues arise and discuss them with
you. Principal responsibility for this matter will remain with the New York law firm of
· Kirschstein, Ottinger, lsrael & Schiffmiller, P.C. Sacks Tierney, P.A. will act as local counsel
only, given our lack of expertise in the substantive law of patents. -
2. Who Will Provide the Legal Services. We believe it is best for our clients to have one
` attorney who serves as the principal contact attorney.
James W. Armstrong, a shareholder with the firm, will be the principal contact attorney working
with you. Subject to his discretion, we may, from time to time, delegate specific tasks to other
attorneys or legal assistants in the firm. This delegation may be for the purpose of involving
‘ lawyers or legal assistants with particular expertise in a given area, or for the purpose of
- providing services on the most efficient and timely basis. We will make a concerted effort to
‘ provide you with the names of those other attorneys and legal assistants who may work on
your matter. At this time, it is expected that Isabel Nl. Humphrey, an associate with the firm,
will be assigned to work with l\/lr. Armstrong on this matter.
To aid in our representation, we may need to hire expert consultants or investigators. We will
not engage such persons without first discussing with you their fees and charges, and obtaining
your consent to hire such service. Such "outside" service will often be billed to you directly.
l 3. Scope of Work. You should have a clear understanding of the legal services we will
_ provide. As your attorney(s), we will take actions on your behalf that we believe will help your
I case. We will keep you informed of all material progress and consult with you regarding
significant developments. Discussions concerning the outcome of your legal matters are only
expressions of our professional judgment. They are not guarantees, but, rather are based on our
experience, the state of the law, and our knowledge of the facts. ·
4. Insurance Review. Please be advised that many claims/defenses or other matters about
- which you are consulting us may be covered by your insurance. Be sure to review all of your
insurance policies and notify your personal/business insurance agentlsl to determine whether
you have insurance coverage available. `
5. How Fees Will Be Set. Our normal fee arrangement is the "reasonable fee" arrangement
based upon the criteria for reasonableness specified in the Arizona Rules of Professional
Conduct. These criteria include:
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- the time spent and effort required for tasks performed;
· the difficulty, novelty, or complexity of the problem presented;
- the skill required to perform the services properly;
· the time constraints imposed by the client or the nature of the matter;
· the amount involved and the results obtained for the -client; and
· the experience, reputation and ability of the lawyer(s) performing the service.
ln most cases, the time and effort factors are weighed most heavily, and the total fee is
calculated primarily on the basis of hourly rates. We have established an hourly billing rate for
each attorney and legal assistant, and we maintain accurate records of the time we devote to
your work, including conferences, negotiations, factual and legal research and analysis,
document preparation and revision, travel and other related matters. The current hourly rate for
|Vlr. Armstrong is $235.00; the current hourly rate for |\/ls. Humphrey is $165.00. Our time is
recorded in units of tenths of an hour. The hourly rates of our lawyers and legal assistants are
adjusted from time to time to reflect changes in levels of expertise and experience. On
occasion, hourly totals may be adjusted at the end of a case —— either upwards or downwards —
to take into account the various other factors described above.
` We are frequently asked to provide an estimate of the amount of fees and costs likely to be
incurred in connection with a particular matter. We will, whenever possible, furnish such an
‘ estimate. However, such an estimate is not to be considered a "not to exceed" or "fixed-fee"
` quotation, unless we have agreed to an arrangement of that sort in writing.
Periodically we provide specific well-defined services on a "fixed—fee" or "fixed-hourly" basis.
Other than these well-defined circumstances, we do not perform services on a fixed-fee or fixed-
hourly basis. All services performed on a`fixed·fee or fixed—hour|y basis must be set forth in a
letter outlining the scope of the services to be performed and the fee to be charged.
We also provide, in certain circumstances, representation on a contingent fee basis. As with
` flat-fee arrangements, services performed on a contingent fee basis must be set forth in a letter
‘ outlining the scope of the services to be performed and the fee arrangement. All contingent fee
arrangements must be approved by the firm's Managing Partner.
6. Additional Costs, Expenses and Advances. lt is the general practice of many law firms to
¤ track the cost of photocopies and long distance telephone calls and assign them to individual
clients for billing. Sacks Tierney does not track these specific costs.
However, we do bill for certain ancillary services provided during the course of your
representation. Costs not included in the hourly rate are billed separately and the cost is billed
directly. These costs include, but are not limited to filing fees, messenger services, special
mailing expenses, expert fees, computerized research, travel expenses and court reporter costs.
· We constantly strive to maintain these charges at rates lower than those charged by others in -
the area. We would be more than happy to discuss with you how we bill for these costs and to
answer any questions you may have.
7. Billing Arrangements, Terms of Payment and Interest on Unpaid Balances. The firm will
send you a statement for services rendered, normally monthly, for both fees and costs. We
expect these statements to be paid promptly. We reserve the right to charge interest at the rate
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of ten percent (10%) per annum on any balance which is not paid within 30 days of the date
the statement is dated. lf you would like to pay with either a VISA or Mastercard you may
contact the firm's Accounting Department at (480) 425-2682 to make the necessary
arrangements.
We will advise you if your account becomes delinquent. Should the delinquency continue
without arrangement of satisfactory payment terms, we reserve the right to withdraw from the
representation and pursue collection of your account. You agree to pay the costs of collecting
the debt, including court costs, filing fees and a reasonable attorney's fee.
8. Commercial Law Affiliates. Our firm is a member of Commercial Law Affiliates ("CLA"),
an affiliation of independent business and commercial litigation law firms with offices in over
‘ 250 cities worldwide. CLA member firms are available to provide assistance to you if
requested. No firm will be engaged on your behalf without your consent. CLA has a number of
programs to share information and resources. CLA member firms do not share profits or
revenues. lf a firm is engaged on your behalf, you will be billed directly from that firm, unless
. other arrangements are made. CLA member firms do not share privileged information, except
, when jointly representing the same client. CLA member firms practice independently and are
not in a relationship for the joint practice of law.
9. File Destruction. At the close of our representation on this matter, your file will be
reviewed and any important original documents will be returned to you. The file will be placed in
storage for seven years after which time it will be destroyed in accordance with the firm's file
destruction policy.
· 10. Termination. You may terminate our representation at any time, with or without cause,
by notifying us. lf such termination occurs, your papers and property will be returned to you
promptly upon receipt of payment for outstanding fees and costs. Our own files pertaining to
the case will be retained. Your termination of our services will not affect your responsibility for
payment of legal services rendered and additional charges incurred before termination and in
connection with an orderly transition of the matter.
Under the Code of Professional Responsibility several types of conduct or circumstances require
‘ or allow us to withdraw from representing a client, including, for example: nonpayment of fees
or costs, misrepresentation or failure to disclose material facts, action contrary to our advice,
and conflict of interest with another client. We will try to identify in advance and discuss with
i you any situation which may lead to our withdrawal and if withdrawal becomes necessary we
will give you written notice of our withdrawal.
( 11. Right to Arbitrate. If you disagree with the amount of our fee, please discuss it with
your principal contact attorney or with the firm's managing partner. Typically, such
disagreements are resolved to the satisfaction of both sides with little inconvenience or
formality. However, upon the agreement of both parties, any controversy relating to this
agreement, or the breach thereof, shall be settled by arbitration in accordance with the Fee
Arbitration Rules of the Arizona State Bar, and judgment upon the award rendered by the
arbitratorlsl may be entered in any court having jurisdiction thereof.
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The effective date 0f this agreement will be retroactive to the date upon which we were first
consulted about representation. The parties agree that this agreement is to be kept confidential
to the extent permitted by applicable law.
SACKS TIERNEY P.A. ACKNOWLEDGED AND AGREED TO:
_ LIZ CLAIBORNE, INC.
y,// Af,
By:_ By:____ __
James W. Armstrong `
Its: Authorized Attorney
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