This letter is furnished only as a basic example and should not be used as a standard form. The attorney must be careful to tailor the details of the letter to the facts of the particular case.
Engagement Letter and Fee Agreement
[Date]
[Name and address of client]
Re: Engagement of [name of firm] for the rendition of legal services regarding the guardianship of [name of proposed ward], an incapacitated person
[Salutation]
This letter confirms your agreement to retain this firm to represent you in the referenced matter and sets forth our agreement.
Scope of Representation. This engagement is limited to matters relating to the appointment of [name of client] as guardian of the person and estate of [name of proposed ward], an incapacitated person. Specifically, our representation of you with respect to this matter will include advising and assisting you with the filing of an application seeking [temporary guardianship/permanent guardianship/temporary and permanent guardianship/[and] creation of a trust under chapter 1301 of the Texas Estates Code] for [name of proposed ward]. Our services may also include advising you regarding the administration of the guardianship, if appointed, so that you may properly carry out your duties and responsibilities as guardian. Our representation will not, however, extend to tax matters or tax compliance matters.
Note that in order to enable us to render effective legal services, you must agree to keep us apprised of all facts and developments relating to this matter. This is very important, as any advice we give must be based on accurate and complete facts and information. Of course, we shall also keep you informed as to the progress of the case, and every effort will be made to expedite this matter promptly and efficiently according to the highest legal and ethical standards.
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The following text is optional, but advising the client of these requirements may help to avoid future fee disputes. This could alternatively be included in separate correspondence to the proposed client. |
Guardianship Qualifications
Before we proceed with seeking your appointment as a guardian, you should be aware of the eligibility requirements and the potential reasons that a person would be found to be “ineligible” to be appointed as a guardian. Specifically, sections 1104.351–.358 of the Texas Estates Code provide that a person may not be appointed as a guardian if he is—
1.under the age of eighteen;
2.an incapacitated person;
3.a person who, because of inexperience, lack of education, or any other good reason, is incapable of properly and prudently managing and controlling the incapacitated person or his estate;
4.a person, institution, or corporation found unsuitable by the court;
5.a person whose conduct is notoriously bad (such as having been convicted of a felony);
6.a person who is a party or whose parent is a party to a lawsuit concerning or affecting the welfare of the incapacitated person, unless the court (a) determines that the lawsuit of the person who has applied to be appointed guardian is not in conflict with the lawsuit of the incapacitated person or (b) appoints a guardian ad litem to represent the interests of the incapacitated person throughout the litigation of the lawsuit;
7.a person indebted to the incapacitated person, unless the person pays the debt before appointment;
8.a person asserting a claim adverse to the incapacitated person or his property;
9.a person disqualified by the incapacitated person in a declaration signed by the incapacitated person, prior to his incapacity;
10.a person not certified to serve as a guardian as required by Texas Estates Code chapter 1104, subchapter F;
11.a nonresident of the state of Texas who has not filed with the court the name of a resident agent to accept service of process in all actions or proceedings relating to the guardianship; or
12.a person found to have committed family violence who is subject to a protective order issued under chapter 85 of the Texas Family Code that protects the proposed ward.
You should advise us immediately if any of these disqualifications apply to you. Based on our understanding that you are qualified to serve, we will prepare an application for appointment of a guardian of the person and estate on your behalf, on receipt of the signed agreement and retainer.
You should also be aware of the possibility that a third party could contest your application to be appointed as guardian. The general rule is that anyone has standing to initiate or complain about actions relating to a guardianship of an incapacitated person. Also, the court could appoint a third party as guardian, either at your request or the request of another.
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Continue with the following. |
Legal Fees and Expenses
In consideration of our representation, you agree to pay attorney’s fees, based on the standard hourly rates (billed in [specify] of an hour increments) of the attorney working on this matter, as such hourly rates may be adjusted from time to time. [That hourly rate is currently $[amount] per hour./More than one attorney will be assisting with respect to this matter, and the attorneys all have varying hourly rates. A summary schedule showing the range of hourly rates is as follows: [insert rates].]
In addition, you agree to pay for reasonable expenses incurred by us in the performance of our work, such as travel expenses, delivery expenses, long-distance telephone charges, deposition costs, filing fees, printing and reproduction costs, and other similar expenditures (collectively, the “Related Expenses”).
From time to time, we will bill you for legal services rendered pertaining to the matter and Related Expenses incurred by us in handling the matter during the period covered by the invoice. You agree to pay all invoices on a current basis within ten days following the mailing of each invoice.
Retainer
In order to commence work on this matter, we request an initial retainer of $[amount]. [Explain how retainer will be charged]. Note that the retainer is not an estimate of our fees and Related Expenses. It is difficult to predict exactly how much time will be required to complete the legal work regarding this matter. We will devote the time that we deem necessary to carry out the representation.
Furthermore, if the case becomes more involved, [we will no longer represent you in this matter if [specify circumstances]/our role will be limited if this matter becomes litigated/we may request the payment of an additional retainer or retainers in the amount of $[amount] or more and, if so requested, you must promptly deposit the additional retainer or retainers with us before [specify, e.g. we make an appearance in any litigation]]. [Include if applicable: The additional retainer is to be held by us (without liability to you for interest) until the conclusion of the case (or other termination of our representation under this agreement) and may be applied to litigation expenses incurred during the course of the litigation. On conclusion of the work or other termination of our representation under this letter, any excess funds in the trust account remaining from the retainer (after application to all charges by us provided for in this letter) will be refunded to you.]
Document Retention
This firm reserves the right and privilege to destroy a client’s file [years (not less than five)] years from the date the file is closed. You are entitled to receive and make copies of any of the documents during that period of time, at your expense. Any documents obtained from you during our work on this matter will be returned to you at file closing or before that if requested. You may pick up the documents at our office, or we will arrange to have them shipped back to you at your expense. They may not be retained and stored beyond what is described above. Your signature accepting this agreement acts as an acknowledgment of our procedures relating to document retention.
Other Representation
You agree that our representation of you will not disqualify us from any representation adverse to you in matters that are not substantially related to the work handled for you under this agreement.
Governing Law
The agreement shall be governed by the laws of the state of Texas and shall not be modified except by written agreement signed by all parties.
Attorney-Client Privileged Communication
You acknowledge and understand that our communications are protected by the attorney-client privilege. This privilege belongs to you. These communications should be kept confidential as to third parties that are not part of the attorney-client relationship. Disclosure of privileged attorney-client communications to third parties during the pendency of this matter could compromise our representation of you and hurt your case.
No Guarantee of Success
You acknowledge that we have not made any representations as to the ultimate success of the case or favorable outcome of the claims that may be advanced relating to any legal matter. You further acknowledge that any statement made by us regarding the successful outcome of any claim or defense of any claim is an opinion only and not a representation, warranty, or guarantee.
Rights and Responsibilities of Attorneys and Clients
One of the most important considerations in accepting an engagement is whether it will put the attorney or firm in conflict with any existing client interest. If such a conflict is discovered, we may be disqualified from continuing our representation in this matter. It is very important that you reconsider all the interests involved to be certain that you have advised us fully as to any possible conflicts of interest. If we determine that a conflict of interest does exist, we will notify all affected clients and will proceed in a manner consistent with the ethical standards contained in the Texas Disciplinary Rules of Professional Conduct.
We must advise you that our representation is subject to our right to withdraw from representing you for any reason at our sole discretion. Additionally, while we are confident that none of the following will ever be a problem in our representation of you, the Texas Disciplinary Rules of Professional Conduct require us to advise you that we may withdraw at any time from representing a client if—
1.a client insists on presenting a claim or defense that is not warranted under existing law and cannot be supported by good-faith argument for an extension, modification, or reversal of existing law;
2.a client seeks to pursue an illegal, fraudulent, or criminal course of conduct;
3.a client insists that the firm pursue a course of conduct that is illegal, repugnant, imprudent, or that is prohibited under the Disciplinary Rules, or with which the firm has a fundamental disagreement;
4. a client, by other conduct, renders it unreasonably difficult for the firm to carry out its employment;
5.a client insists the firm engage in conduct that is contrary to the judgment and advice of the firm but not prohibited under the Disciplinary Rules;
6.a client fails substantially to fulfill an obligation to the firm regarding the firm’s services, including an obligation to pay attorney’s fees or expenses as agreed, and the client has been given reasonable warning that the firm will withdraw unless the obligation is fulfilled; or
7.other good cause for withdrawal exists.
All rights afforded under this agreement are cumulative. Any forbearance shown by either party in the exercise of these rights is not a waiver of those rights. Any express or implied waiver of rights with regard to any event or default that occurs shall under no circumstances be deemed a waiver of rights with regard to any subsequent event or default.
The Texas Supreme Court and courts of appeals have adopted the Texas Lawyer’s Creed as a mandate to the legal profession in Texas. The creed requires our firm to advise you of the contents of the creed when undertaking to represent you. A copy of the Texas Lawyer’s Creed is attached to this engagement letter for your review.
Facsimile and Electronic Transmission
By signing this agreement, you represent that you have been notified that we often use facsimile transmissions and electronic mail transmissions as forms of communication. It is possible that such transmissions may be intercepted by third parties. If you do not agree to the use of such transmissions, please notify us in writing.
We are delighted you have selected us for this engagement. While we cannot guarantee a particular outcome in your case, we do promise to do our very best on your behalf.
Your signature at the end of this document evidences your agreement to the terms of this engagement letter. We sincerely appreciate this opportunity to be of service to you.
Very truly yours,
[Name of law firm]
By:
[Name of attorney]
I, [name of client], hereby agree to the engagement of [name of firm] with respect to guardianship of the person and estate of [name of proposed ward], an incapacitated person, and I agree to the conditions and terms of the foregoing document pertaining to the representation by [name of firm], including the payment of fees and expenses charged by [name of firm].
[Name of client]
Date:
Notice to Clients
Texas law requires that all attorneys provide their clients with the following notice about the existence of the attorney grievance process: “The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar Office of General Counsel will provide you with information about how to file a complaint. For more information, please call 1-800-932-1900. This is a toll-free telephone call.”
The Texas Lawyer’s Creed
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.
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.
1.I am passionately proud of my profession. Therefore, “My word is my bond.”
2.I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
3.I commit myself to an adequate and effective pro bono program.
4.I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
5.I will always be conscious of my duty to the judicial system.
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.
1.I will advise my client of the contents of this Creed when undertaking representation.
2.I will endeavor to achieve my client’s lawful objectives in legal transactions and in litigation as quickly and economically as possible.
3.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.
4.I will advise my client that civility and courtesy are expected and are not a sign of weakness.
5.I will advise my client of proper and expected behavior.
6.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.
7.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.
8.I will advise my client that we will not pursue tactics which are intended primarily for delay.
9.I will advise my client that we will not pursue any course of action which is without merit.
10.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.
11.I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.
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.
1.I will be courteous, civil, and prompt in oral and written communications.
2.I will not quarrel over matters of form or style, but I will concentrate on matters of substance.
3.I will identify for other counsel or parties all changes I have made in documents submitted for review.
4.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.
5.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 canceled.
6.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.
7.I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.
8.I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
9.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.
10.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.
11.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.
12.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.
13.I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
14.I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
15.I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
16.I will refrain from excessive and abusive discovery.
17.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.
18.I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
19.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.
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.
1.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.
2.I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.
3.I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.
4.I will be punctual.
5.I will not engage in any conduct which offends the dignity and decorum of proceedings.
6.I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
7.I will respect the rulings of the Court.
8.I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
9.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.