Business Law Section Sample Retainer Agreement

(Provided as a courtesy by Decision Strategies, LLC)

Sample Retainer Agreement

HTML version below:

Date

VIA OVERNIGHT COURIER

Name
Company
Street Address
City, State, Zip

Re: Engagement Agreement

DS Case No.

Dear [Name of Addressee]:

1.1 This letter confirms our agreement pursuant to which you have retained Decision Strategies, LLC and its employees and agents ("DS") to perform and DS has agreed to perform certain [investigative] and [research] services (the "Engagement") in connection with [potential] litigation under the terms and conditions set forth in this engagement agreement (the "Agreement").

2.1 The purpose of the Engagement is for DS to perform certain services and consult with you to assist you with formulating your legal strategy and advising your client, [name of ultimate client] ("Client").

          Confidentiality

3.1 All work performed and materials and work product of any kind generated in furtherance of the Engagement will be deemed to be confidential and/or privileged material prepared in connection with [potential] litigation.

3.2 Accordingly, DS will treat and maintain as confidential and/or privileged all information, documents, materials and work product that are, have been or will be generated or created by or communicated or provided to DS by you or by Client relating to any activity or project undertaken as part of the Engagement and will not reveal any such information, documents, materials or work product to any person or utilize any of them in any way except as directed or approved by you and/or Client; provided, however, that, subject to the provisions of Article 5 of this Agreement, DS may reveal such information, documents, materials or work product pursuant to government process after prior notice to you when possible and to the extent permissible by law under the circumstances to afford you and/or Client an opportunity to challenge such process at the discretion and expense of you and/or Client. In the alternative, subject to the provisions of Article 5 of this Agreement, should you or Client so direct, DS will undertake to challenge such process at the sole expense of you and/or Client, provided that such challenge is permitted by law under the circumstances.

4.1 DS shall not knowingly engage in the course of the Engagement in any activity, undertaking or project that is unlawful or illegal under the laws of the place in which the activity occurs.

5.1 Should any effort be made (a) either by subpoena or otherwise to gain access to information, materials, documents, work product or information of any kind in the possession of DS that has been generated, obtained or learned as a result of the work performed by DS under the Engagement, or (b) to otherwise stop, interrupt or interfere with the performance of DS’ work in connection with the Engagement, whether by judicial action or other means, in such event, subject to the provisions of this Article 5 of this Agreement, to the extent feasible and permissible by law under the circumstances, DS shall promptly notify you and follow lawful directions from you and/or Client with respect to DS’ response to any such effort.

5.2 Client agrees to pay, reimburse, indemnify and/or hold harmless DS for all DS time charges, fees, costs, attorney's fees and disbursements that may be incurred or generated by DS, or that may arise out of or relate to any effort that DS may undertake in response to any effort or judicial process or pursuant to any direction from you or Client as provided above in paragraphs 3.2 or 5.1.

5.3 Client agrees to indemnify DS for any actions, judgments or claims against DS arising out of the Engagement, including but not limited to reimbursement for all DS time charges, fees, costs, attorney's fees and disbursements and defense or other costs associated with any such actions, judgments or claims, unless and until it were to be finally adjudicated that DS’ actions were negligent, tortious or beyond the scope of the Engagement.

6.1 Except if DS is judged to have acted negligently, tortiously or beyond the scope of the Engagement (see Paragraph 5.3 above), DS shall not be liable to Client for claims for incidental, special, indirect, or consequential damages of any nature connected with or resulting from its performance of the Engagement under this Agreement and Client waives any and all right it may have to hold DS liable for any such damages.

7.1 Unless you or Client requests otherwise in writing, DS shall bill you monthly and DS’ bills shall include a description of the tasks performed and hours worked by each person working on the Engagement as well as a statement of the total amount of out-of-pocket expenses and disbursements incurred with subtotals by category. DS’ bills will be sent to your attention at the above address, with a copy to the client unless you instruct otherwise.

7.2 Our rates for investigative, due diligence and related services performed in the United States range from $125 to $375 per hour depending upon the background and experience of the personnel utilized. Disbursements and taxes, if applicable, are billed in addition to fees. Some disbursements, other than databases, will be subject to a processing and carrying charge. Database charges are billed at actual cost to us or on a per minute charge, depending on the database. Long distance, cellular telephone, facsimile and other communications charges will be estimated based on the fees incurred.

7.3 You and Client will process DS’ billings promptly and Client will remit payment to DS within thirty (30) days after an invoice is received by you. DS reserves the right to assess a service charge on any invoice outstanding beyond thirty (30) days. Payments should be sent to DS at 3141 Fairview Park Drive, Suite 850, Falls Church, VA 22042-4507. Instructions for payment by wire transfer will be provided upon request.

7.4 If bills remain outstanding for more than thirty (30) days, DS reserves the right to stop all work.

7.5 If DS must engage counsel or otherwise expend funds to collect bills over sixty (60) days old, Client agrees to reimburse DS for all associated fees and costs, plus interest on the outstanding balance.

7.6 Certain of DS’ services may be subject to mandatory state or local sales taxes.

7.7 We have set an initial budget of $_____, plus disbursements and applicable sales tax.[ DS requests a retainer fee in the amount of $_____, plus applicable sales tax. We will apply this retainer fee at our customary rates (paragraph 7.2) depending on the personnel assigned to this matter to our final billing.]

• You agree that the Engagement and any assignments performed thereunder to assist you and Client pertain to a discrete matter, and that our undertaking an assignment pursuant to this Agreement would not provide a basis for precluding our future services for clients adverse to you or Client on matters that are not substantially related to the matter DS is handling as part of this Engagement.

8.2 DS is not aware at this time of any conflict of interests that would preclude DS from providing services to you or Client in this Engagement. DS is not responsible for monitoring for such conflicts during the course of the Engagement. Should DS become aware, however, of any such conflict, upon reasonable notice to you and Client, DS may withdraw from and terminate the Engagement at that time. In that event, Client agrees to pay and/or reimburse DS for all fees, out-of-pocket expenses, disbursements and applicable taxes accrued or incurred as of the date of such withdrawal, including but not limited to all fees, out-of-pocket expenses, disbursements and applicable taxes associated with the transition, if any, from DS to a replacement provider of the same or similar services provided by DS as part of this Engagement.

• The agreements, terms and understandings set forth in this letter shall survive the termination of any and all work performed pursuant to the Engagement.

• The parties consent to the jurisdiction of the federal, state and local courts in or for New York, NY.

11.1 At the option of DS, any disagreement or controversy arising out of or relating to this Agreement and/or Engagement, including but not limited to any dispute concerning DS’s fees or expenses, can be submitted for resolution to arbitration before three arbitrators in accordance with the then prevailing Commercial Rules of the American Arbitration Association. The arbitration shall be held in the location specified in paragraph 10.1, above. The award rendered in said proceeding shall be made in writing and shall be final and binding upon both parties and judgment upon the award may be entered in any court having jurisdiction thereof. The arbitrators shall award reasonable attorneys' fees and the costs of the arbitration to the prevailing party, except that the fees and expenses of the arbitrators, if any, shall be borne equally by the parties. At the request of any party, the arbitration will be conducted in secret.

11.2. The arbitrators shall not have authority to amend, alter, modify, add to or subtract from the provisions of this Agreement. The award of the arbitrators, in addition to granting the relief prescribed above and such other relief as the arbitrators may deem proper, may contain provisions commanding or restraining acts or conduct of the parties or their representatives and may further provide for the arbitrators to retain jurisdiction over the Agreement and the enforcement thereof. If any party shall deliberately default in appearing before the arbitrators, the arbitrators are empowered, nonetheless, to take the proof of the party or parties appearing and render an award thereon. The arbitrators shall state in writing the reasons for their award.

12.1 DS’ failure to put into effect, exercise or enforce (in a timely manner or otherwise) any term, condition or provision of this Agreement shall not be deemed to be a waiver of such term, condition or provision or of DS’ right to enforce it.

15.1 The Engagement and the terms of this Agreement shall be deemed to be effective as of [date].

16.1 This Agreement may be executed in one or more counterparts, all of which together shall constitute one and the same Agreement and each of which shall be an original. Your signature below on the indicated enclosed copy of this letter is your representation that you are authorized to enter into the Engagement and to agree to the terms of this Agreement on behalf of Client as well as the law firm. This Agreement shall be binding on all parties and their respective heirs, successors and assigns. Please execute and return the indicated enclosed copy of this Agreement to us, together with a retainer check. If fully executed copies of this Agreement and a retainer check are not returned to DS within fifteen (15) days of the date of this letter, DS reserves the right to cease all work immediately. In that case, DS shall be entitled to payment for all fees associated with and out-of-pocket expenses incurred in connection with DS performance of the Engagement up to and including the date work ceases, plus interest to and including the date DS receives payment and any applicable taxes.

We look forward to working with you toward a successful completion of the Engagement.

The above sets forth the terms of the Engagement and is agreed to on behalf of the addressee and Client, as indicated below:

Dated:______________________ By: ________________________