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HomeMy WebLinkAboutKING & SPAULDING LLPA-2020-190 J I RA NQ: NOT REQUIRED FORK A,1AV n `I CiERK OF RCCEED 5 nnrr. MAC,11 989170� _ CA XI Old O WN0 Lt. KING & SPAEmxc, May 27, 2020 City Attorney's Office for Santa Ana 20 Civic Center (M-29) P.O. Box 1988 Santa Ana, CA 92702 Re: Agreement for Legal Services Dear City Attorney's Office for Santa Ana: King & Spalding LLP 633 West Fifth Street Suite 1600 Los Angeles, CA 90071 Tel: +1 213 443 4355 Fax: +1 213 443 4310 w Aslawxom Quyen Ta Partner Direct Dial: +1 408-712-8778 qta@kslaw.com We are pleased that you have asked King & Spalding LLP (the "firm," "us," or "we") to serve as your counsel. This letter will confirm our discussions about this engagement and the basis on which the firm will provide its legal services. If you have questions about these provisions or would like to discuss possible modifications, please call me. If you agree, please return a countersigned copy of this letter. 1. Client and Scope of Representation. The firm's client in this matter will be the City of Santa Ana ("you"). The firm will be engaged to represent you in City of Santa Ana v. County of Orange, et al. The firm will prepare and file necessary litigation documents in connection with the case and will pursue the case to its conclusion by judgment, order, or settlement, but not appeal unless we are specifically or separately retained for that work. You may limit or expand the scope of our representation, but the firm must agree to any substantial expansion in advance. 2. Term of Engagement. This engagement shall commence on the date of execution by all required signatories and continue for a three-year period, unless terminated earlier pursuant to the provisions set forth immediately below. The term of this engagement may be extended for up to two years upon a writing executed by the City Manager and the City Attorney. You or we may terminate this engagement at any time for any reason by written notice, subject on the firm's part to applicable rules of professional conduct. If the firm terminates the engagement, it will take such steps as are reasonably practicable to protect the interests of the client. If termination requires permission of a court or other tribunal, we will apply for permission and you agree promptly to retain successor counsel if you wish to do so and not to oppose our application to withdraw. Unless previously terminated, the firm's engagement for this matter will terminate when we send you the final invoice for services in this matter. Following termination, nonpublic WORKAMER\36922579.v l City Attorney's Office for Santa Ana May 27, 2020 Page 2 information you have supplied that we have retained will be kept confidential in accordance with applicable rules of professional conduct. We will promptly return your papers and property at your request upon payment of outstanding fees and costs and will retain our own files, including lawyer work product and we retain all intellectual property in our work. We will transfer all retained documents to the personnel responsible for administering the firm's records retention program. You agree that we may securely dispose of or destroy any files you have not requested to be returned to you a reasonable time after termination of this matter in accordance with our document management policy, which currently calls for retention of materials pertaining to a matter for at least ten years after the matter ends. You are engaging our turn to provide legal services in connection with a specific matter. After completion of the matter, changes may occur in applicable laws or regulations that could affect your rights and liabilities. You agree that, unless you actually engage us after the matter's completion to provide additional advice on issues arising from the matter, we will have no continuing obligation to advise as to future developments. 3. Fees and Expenses. The firm's fees are based primarily on the hourly billing rate for each attorney and legal assistant devoting time to a matter. The firm's hourly billing rates for attorneys working on this matter will be $640. Time for paralegals and legal assistants will be billed at agreed upon rates that will be substantially lower than attorney rates. The firm will not charge for partner Quyen Ta's travel time for this matter. Other factors may be taken into consideration in determining the firm's fees in accordance with applicable rules of professional conduct. The firm and you have agreed that the total sum to be expended by you for the first phase of work under the scope of this agreement shall not exceed $350,000. You acknowledge that you were provided with 100 hours of initial time on this matter at no charge when firm partners Quyen Ta, Arwen Johnson, and Craig Bessenger were at their prior law firm. You also acknowledge that estimates and budgets are uncertain and not guarantees, and that this amount is not intended to serve as a cap on fees due to the firm for its services within the scope of this agreement. The firm will seek prior approval from you before undertaking work that would cause us to exceed $350,000. If the firm recovers attorneys' fees for its services in this matter, those fees will be donated to the City of Santa Ana. The firm's invoices will include separate charges for expenses incurred in performing its services, such as photocopying, delivery services, computerized research, and search and filing fees. Third party providers' fees and expenses, such as for consultants, appraisers, experts, and local counsel, will be billed directly to you by the provider. Invoices will normally be sent monthly for work performed and expenses posted the previous month. Payment is due within 30 days of your receipt of the firm's invoice. If any invoice remains unpaid for an unreasonable length of time, the firm may cease performing services for you or withdraw from the engagement unless satisfactory arrangements are made to pay outstanding invoices and future fees and expenses. Unless you and we have agreed that our compensation will be made on a contingent, capped, or flat fee basis, you understand that the cost of handling a matter is not predictable and that we have not made a commitment or promise as to the maximum fees and expenses necessary to complete a matter. You agree that, absent agreement on a contingent fee arrangement, payment of the firm's fees and costs does not depend on the ultimate outcome of a matter. WORKAMM36922579.0 City Attorney's Office for Santa Ana May 27, 2020 Page 3 4. Client Responsibilities. You agree to cooperate fully with us in connection with all matters in which the firm represents you and to provide us with all information known and available to you that relates to the engagement and matter. You also undertake to cooperate with the firm in complying with any regulatory or compliance obligations relating to the engagement and to pay our invoices in accordance with Section 3. In accordance with ABA guidance, we advise you that communications between you or your representatives and your lawyers that may be accessed lawfully by third parties, such as through hotel, home, employment, or public servers to which others may have rights of access, can jeopardize or eliminate confidentiality, attorney/client and other evidentiary privileges and protection against disclosure. We encourage you to assure that secure methods .are used for all communications of confidential information. 5. Conflicts. As you are aware and we have discussed, our firm has a diverse practice and represents many other companies and individuals, including some that are or may be your competitors, customers, suppliers, and contract counterparties or your employer. During the time the firm is representing you, some of the firm's present or future clients may have disputes or transactions with you. We will not, without your informed consent, undertake any representation of another current or future client in a matter that is the same or substantially related to any matters we have handled or are handling for you in which your and the other client's interests conflict. However, you agree that we may take on matters for current and future clients without further consent if the matters are not substantially related to any current or prior matter for you, even if that client's interests in that matter conflict with or are directly adverse to your interests, including matters for advice, corporate or finance transactions, including mergers and acquisitions, litigation, and arbitration, provided that, before we undertake such a matter, we have first reasonably concluded that we can represent both clients' interests without compromising our independent judgment or lessening our vigorous representation of either client and also take timely and effective steps to protect all confidential information provided by and to each client. These protections are meant to avoid the risks of diminished loyalty and compromised confidences. The firm seeks similar agreements from many other clients to preserve its ability to represent you. We are prepared to answer your questions and recommend you obtain advice of counsel independent of our firm about this consent because we may not advise you on this topic. Your countersignature of this letter or instructing us in a matter will signify your understanding of this conflict of interest and consent to our representing you and another client in this way, subject to our adherence to these conditions. The firm represents AT&T Corporation ("AT&T") in State of California, et al. v. Cellco Partllership d/b/a Verizon Wireless, et al., Case No. 34-2012-00127517, CA Super. Ct, Sacramento Coty) (the "lawsuit"), which in our view is not substantially related to the matter with which this engagement letter deals. One of the many non -intervening plaintiffs in this lawsuit is the City of Santa Ana. Your and AT&T's interests in the lawsuit conflict. Before we may represent these conflicting interests, you are entitled to assess the risk that our concurrent representation of you and AT&T in your respective matters will lessen or impair our independent judgment or our zealous representation of you or will compromise the confidentiality we owe you. We have considered these questions and are confident that we can and will independently and vigorously represent you and AT&T in your separate matters, and we will protect each client's WORKAMEW36922579M City Attorney's Office for Santa Ana May 27, 2020 Page 4 confidential information by creating an ethical wall between our personnel working on and confidential information relating to our work for you and our lawyers working on and confidential information pertaining to our work for AT&T. We will block access by lawyers working for AT&T to documents and information in our electronic document management system and archives pertaining to this matter, and vice versa, and will instruct the lawyers in writing that they may not seek, disclose, or take into account in their work for the client to which they are assigned any confidential information of the other client, and they are to direct their ethical and professional obligations to the client in the matter to which they are assigned. These protections are meant to avoid the risks of diminished loyalty and compromised confidences. We are prepared to answer your questions and recommend you obtain advice of counsel independent of our firm about this consent because we may not advise you on this topic. Your countersignature of this letter or instructing us in a matter will signify your understanding of this conflict of interest, your agreement not to use the firm's representation of you to disqualify the firm from representing AT&T in the lawsuit, and consent to our representing you and AT&T subject to our adherence to these conditions. The firm's representation of you in this matter does not give rise to an attorney/client relationship between the firm and any other ministries, departments, bureaus, agencies or instrumentalities or individuals, unless we agree otherwise in writing, and you agree that representing you does not create a conflict of interest with any such non -represented entities or individuals in the event we represent other clients adversely to their interests. You also agree that neither an attomey/client relationship nor a basis for a conflict of interest will arise solely from your providing us with confidential information about any such non -represented entities or individuals. 6. Firm Privilege. If issues come up concerning our professional or ethical duties and rights concerning our work for you, we may seek privileged and confidential advice from internal firm lawyers or external legal counsel with relevant responsibility or expertise. Courts have reached different views on the applicability of privilege and confidentiality between clients and their lawyers unless the lawyer first terminates its relationship with its client in order to obtain privileged and confidential advice, which may turn out to be necessary. The firm believes that the view of courts and commentators endorsing lawyers' right to assert privilege in those circumstances provides benefits to both the firm and the client. You agree that, if we consult internal or external legal counsel in these circumstances about our work for you, you will not assert a right to learn the content of such advice even if it concerns a question of actual or potential professional liability, professional conduct, or other claim that might be considered a conflict of interest or breach of duty. This paragraph does not alter our obligations to you in such a circumstance. 7. Additional Terms. a) No Lobbying. It is understood that the firm is not being retained in this matter to engage in any activities, and will not during the scope of this agreement engage in any activities on behalf of you, including political, public relations, or lobbying activities, that would require registration under the Lobbying Disclosure Act (LDA) or the Foreign Agents Registration Act (FARA). W ORKAMER\36922579.v1 A-2020-190 City Attorney's Office for Santa Ana May 27, 2020 Page 5 b) Independent Contractors. It is mutually agreed by and between the firm and you that, in the performance of our covenants hereunder, the firm's attorneys are and shall be attorneys for and independent contractors of, and not officers or employees of, you. c) Reporting Requirement. The firm agrees to keep you, and any other person(s) designated by you, informed of significant events in the litigation matter, including but not limited to trial/hearing date, parry deposition dates, filing of motions for summary judgment or other significant motions, hearing date for motion for summary judgment or other significant motions, settlement conference date, and mediation date. The firm also agrees to provide the following reports: i. 45-day initial evaluation of case and budget to be due 45-days from the signing of this letter; ii. Periodic status updates to be agreed upon by the firm and you; iii. Updates on significant occurrences. This letter sets out all of the terms of our engagement agreement with you. We thank you for this opportunity to work with you. I am available to discuss any questions or comments now and throughout the course of our representation. If you are satisfied that this letter correctly sets out our agreement, please return a countersigned copy to me as soon as possible; however, these terms will be binding on both of us when we begin work even if not countersigned or returned. Very truly yours, Quyen Ta AGREED TO AND ACCEPTED: CITY OF SANTA ANA STINE RIDGE City Manager rDAY GOMEZ, CMC of the Council WORKAMERl36922579.v 1 City Attorney's Office for Santa Ana May 27, 2020 Page 6 APPROVED AS TO FORM: SOMA R. CARVALHO City Attorney By: Is, -f. L JohrK4. Funk Assistant City Attorney woRKAMERn6922579.vi