RETAINER AGREEMENT (Consumer Rights Action)
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- Molly Atkinson
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1 Sean Smallwood 5174 Beach Dr. SE Suite C St. Petersburg, FL Tel: seansmallwood@msn.com RETAINER AGREEMENT (Consumer Rights Action) Client Name: Home Address: Date of Birth: / / Social Sec. #: Home Phone: Work Phone: Cell Phone: This is an agreement between you, the client, and me, the lawyer (or I ). Please read it and make sure you understand it before you sign it. If you have any questions about what it says, please ask me or talk with another lawyer. This agreement is important. It defines your rights and obligations, regardless of anything we may have discussed or that anyone may have told you. Neither of us can change this agreement unless we both agree to the changes, in writing, and we both sign the new agreement. I understand that you may have one or more causes of actions for violations of your consumer rights. Generally, violations are actions or inactions by collection agencies which violate Federal or State Laws. The primary laws are known as the Fair Debt Collection Practices Act, 15 U.S.C et seq. ( FDCPA ), the Fair Credit Reporting Act ( FCRA ), the Telephone Consumers Protection Act ( TCPA ), the U.S. Bankruptcy Code, 11 U.S.C., as well as specific state laws which are often similar to some of these. My first task as your attorney is to investigate potential claims against your creditors, debt collectors, collection agencies, collection attorneys, credit reporting agencies, and others who may have violated one or more of the aforementioned laws in violation of your rights. Your Authorization I have an ethical obligation to use my professional judgment in deciding whether to pursue any cause of action, and I will not do so if I believe that the case is unjustified for any reason. I can be held accountable, personally, for bringing an action in bad-faith. If, in my professional opinion, I believe that you have a good cause of action for a violation that I am comfortable with pursuing, you authorize me to do that. You also authorize me to choose the best course of action, whether that means: (i) sending a letter to the violator in the hopes of resolving the matter without involving the court; (ii) filing a lawsuit on your behalf; (iii) taking another approach altogether; or, (iv) some combination of the other approaches.
2 2 What You May Receive The laws protecting your rights generally provide only a small award of statutory damages. Generally, the people who made these laws provided only a small award for violations; however, they also usually provided full payment of lawyer fees and court costs. As a result, it is possible to fight a case in court over the course of several years, only to receive an award of $100 in damage due you, and tens of thousands of dollars in legal fees due your lawyer. If I settle a case, it is likely I have invested many hours and that the settlement amount is less than my normal compensation. The primary reason you are retaining me is to help you eliminate violations on your credit records. Most of the time, I will be able to help you remove these items, but you will not receive very much money. Understand, I will always try to obtain the largest amount for you that I can, keeping in perspective the additional costs of litigation and the timeframe of your circumstances. If you are trying to obtain a loan to close on a house and need an item removed immediately, I may not be able to obtain any compensation for the violation of your rights, but may be able to help you clear an erroneous item quickly. I am not asking for, and you will not pay me a retainer. If I am unable to obtain a recovery by settlement, suit, or otherwise, you will not owe me anything. The only situation in which you could owe me anything is if we receive an offer of settlement that I endorse, but you refuse to accept. If that happens, you agree to pay any deficit between what I would have received under the offer and what I ultimately receive through settlement or negotiation. Of course, if we receive more than their offer, you would owe me nothing. How I Will Get Paid There are three usual scenarios which occur in the development of a case early resolution, resolution settlement during the case, and judgment. My fees depend on when I resolve your case, so please read the following carefully: Early Resolution If we settle a matter before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, we will split the proceeds as follows: First, I will be paid for my time in an amount equal to the larger between: (a) $350 per hour, and; (b) 33 1/3% of any recovery up to $1 million plus 30% of any portion of the recovery between $1 million and $2 million plus 20% of any portion of the recovery exceeding $2 million. Next, all of my expenses will be paid. My expenses include, without limitation, consultants and paralegals (for reference, my paralegal charges $150 per hour, and Mr. Bauer charges $150 per hour) my telephone charges, postage, courier, travel costs (including everything reasonably associated with travel, like transportation, housing, and meals, parking, and other usual and customary costs), copies, facsimile costs, court reporters and transcription costs, and data storage expenses. If funds remain, they will be sent to you. You should anticipate that in many cases, a settlement will provide you with little or no recovery of damages, but may help you in correcting your credit file. If debt is relieved or forgiven, or some other economic benefit is given to you as part of any agreement, the amount relieved will be calculated as part of the total received when we calculate our share. Resolution During the Case If we settle a matter after the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment, then the percentages identified
3 3 above shall be modified to read 40% of any recovery up to $1 million plus 30% of any portion of the recovery between $1 million and $2 million plus 20% of any portion of the recovery exceeding $2 million. Otherwise, the language above will control. Judgment If a matter is resolved by a decision of the court (a judgment on your case) or another final decision maker, and our fees and costs are to be paid pursuant to that decision, I will abide by the decision. Such decisions generally provide for awards of specific amounts to the client, and that is the amount you will receive. Again, if there is no recovery, you will not owe us anything unless you decide to reject a settlement offer that we advise you to accept. By signing this agreement, you unequivocally and irrevocably assign to me all right, title, and interest of any kind in amounts recovered or awarded in this case for my costs, fees, and time. Engagement The scope of my representation does not include any appeal. I cannot guarantee any particular results. You authorize me to represent you and to bring in assistance from other attorneys, professionals, expert witnesses, assistants, and others who I deem necessary to prosecute your claims. You agree to keep me informed about your current address, telephone numbers and other contact information at all times during my representation of you. If you move, you will advise me immediately where you have moved to and how I can reach you. Withdrawal You recognize my right to withdraw from representation and return all original documents to you at my discretion whenever I am of the opinion that the chances for success do not justify going forward, or if I do not believe, for any reason, that it is appropriate to prosecute your case. If you are not completely open and honest with me, you should expect that I will withdraw from your case. The things that you tell me as your attorney are generally confidential and I cannot, except in specific circumstances, disclose them. Therefore, you have no reason to not be completely open and honest with me. Working Together You will provide all documentation I require to effectively represent you, and will cooperate to the best of your ability. If you do not cooperate, I may withdraw from representation and stop working on your file. Consumer law claims often become more valuable over time, especially in collection cases as more activity occurs that violates the law. For this reason, you may not hear from me for several months. I encourage you to check in regularly with me if you are being contacted by any collection agency or lawyer for the payment of a debt. You are welcome to contact me at any time to learn your case s status, but I will do my best to inform you whenever any activity occurs. Termination In the event that the chances for success do not merit going forward, or you have not cooperated in the prosecution of your claims, you authorize me to withdraw from representation. You may also terminate my services at any time as your lawyer, but I will retain an attorney s fee lien for the work performed and costs advanced in your case.
4 4 Three Day Cancellation Period This contract may be cancelled by written notification to me at any time within 3 business days of the date the contract was signed, as shown below, and if cancelled you shall not be obligated to pay any fees to me for the work performed during that time. If I have advanced funds to others in your representation, I am entitled to be reimbursed for such amounts as I reasonably advanced on your behalf. Receipt of Client s Rights You have, before signing this contract, received and read the statement of client's rights and understands each of the rights set forth therein. You have signed the statement and received a signed copy to refer to while being represented by me. By signing this Agreement, you agree that you have read it, received and read the Statement of Client's Rights and understand each of the rights set forth therein. Your signature below represents your consent to the terms of the Agreement of which you have received a copy. There are no other agreements between you and I, other than as set forth herein. CLIENT ATTORNEY signature signature printed name printed name date date
5 5 STATEMENT OF CLIENT S RIGHTS Before you, the prospective client, arrange a contingency fee agreement with a lawyer, you should understand this Statement of your rights as a client. This Statement is not part of actual contract between you and your lawyer, but as a prospective client, you should be aware of these rights: 1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money recovered in a case. You, the client, have the right to talk with your lawyer about the proposed fee and to bargain about the rate or percentage as in any other contract. If you do not reach an agreement with one lawyer, you may talk with other lawyers. 2. Any contingency fee contract must be in writing and you have three (3) business days to reconsider the contract. You may cancel the contract without any reason if you notify your lawyer in writing within three (3) business days of signing the contract. If you withdraw from the contract within the first three (3) days, you do not owe the lawyer a fee, although you may be responsible for the lawyer s actual costs during that time. But if your lawyer begins to represent you, your lawyer may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain court approval before withdrawing from a case. If you discharge your lawyer without good cause after the three (3) day period, you may have to pay a fee for the work the lawyer has already done. 3. Before hiring a lawyer, you, the client, have the right to know about the lawyer s education, training and experience. If you ask, the lawyer should tell you specifically about his or her actual experience dealing with cases similar to yours. If you ask, the lawyer should provide information about special training or knowledge and give you this information in writing if you request it. 4. Before signing a contingency fee contract with you, a lawyer must advise you whether he or she intends to handle your case alone or whether other lawyers will be helping with the case. If your lawyer intends to refer the case to other lawyers, he or she should tell you what kind of fee sharing arrangement will be made with the other lawyers. If lawyers from different law firms will represent you, at least one lawyer from each law firm must sign the contingency fee contract. 5. If your lawyer intends to refer a case to another lawyer or counsel with other lawyers, your lawyer should tell you about that at the beginning. If your lawyer takes the case and later decides to refer it to another lawyer or to associate with other lawyers, you should sign a new contract which includes the new lawyers. You, the client, also have the right to consult with each lawyer working on your case and each lawyer is legally responsible to represent your interest and is legally responsible for the acts of the other lawyers involved in the case. 6. You, the client, have the right to know in advance how you will need to pay the expenses and legal fees at the end of the case. If you pay a deposit in advance for costs, you may ask reasonable questions about how the money will be or has been spent and how much of it remains unspent. Your lawyer should give a reasonable estimate about future necessary costs. If your lawyer agrees to lend or advance your money to prepare or research the case, you have the right to know periodically how much money your lawyer has spent on your behalf. You also have the right to decide, after consulting with your lawyer, how much money is to be spent to prepare a case. If you pay the expenses, you have the right to decide how much to spend. Your lawyer should also inform you whether the fee will be based on the gross amount recovered or on the minus the costs. 7. You, the client, have the right to be told by your lawyer about the possible adverse consequences if you should lose the case. Those adverse consequences might include money which you might have to pay to your lawyer for costs, and liability you might have for attorney s fees to the other side. 8. You, the client, have the right to receive and approve a closing statement at the end of the case before you pay any money. The statement must list all of the financial details of the entire case, including the amount recovered, all expenses, and the precise statement of your lawyer s fee. Until you approve the closing statement, you need not pay any money to anyone, including your lawyer. You also have the right to have every law firm working on your case sign this closing statement. 9. You, the client, have the right to ask your lawyer at reasonable intervals how the case is progressing and to have these questions answered to the best of your lawyer s ability. 10. You, the client, have the right to make the final decision regarding settlement of a case. Your lawyer must notify you of all offers of settlement before and after the trial. Offers during the trial must be immediately communicated and you should consult with your lawyer regarding whether to accept or reject a settlement. 11. If at any time, you, the client, believe that your lawyer has charged an excessive or illegal fee, you, the client, have the right to report the matter to the Florida Bar, the agency that oversees the practice and behavior of all lawyers in Florida. For information on how to reach the Florida Bar, call (800) , or contact the local bar association. Any disagreement between you and your lawyers about a fee can be taken to court, and you may wish to hire another lawyer to help you resolve this disagreement. Usually, fee disputes must be handled in a separate lawsuit unless your fee contract provides for arbitration. You can request, but may not require, that a provision for arbitration under Chapter 682, Florida Statutes or under the Fee Arbitration Rules of the Rules Regulating the Florida Bar, be included in your fee contract. Date Attorney Date
6 6 AUTHORIZATION TO NEGOTIATE AND SETTLE CASE I,, hereby give my attorney, Sean Smallwood, or any other attorney or law firm with whom he may associate with at his sole election (hereinafter attorneys ), full legal authority and professional judgment to negotiate and settle my consumer law claims of whatever nature against whom I may reasonably assert a legal or other claim related in any way to the consumer collection of alleged debts (hereinafter debt collectors ). I acknowledge that based upon my attorneys experience and knowledge in the areas of unlawful debt collection practices, that I will be bound by any settlement my attorneys make on my behalf and will accept that settlement of my case upon the terms negotiated on my behalf by attorneys. I hereby grant my attorneys full legal authority to act on my behalf in all matters related to the negotiation and settlement of any and all claims which have or may be asserted against these debt collectors. I further understand and agree that this case may be settled on my behalf by the attorneys without further consultation with me; that these attorneys have not promised or guaranteed any particular result or settlement amount; and, that this authorization is in addition to all of the terms of the retainer agreement between myself and the attorneys. I have received a copy of this Authorization. Date signature, Client Subscribed and sworn to before me this day of 20 Notary Public
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