Loading...
HomeMy WebLinkAboutItem 12g - Workers' Compensation Legal Services DATE: October 15, 2019 TO: Honorable Mayor and City Council FROM: Hue C. Quach, Administrative Services Director By: Shama P. Curian, Human Resources Administrator SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH THE LAW FIRMS OF BRIAN T. RILEY; HANNA BROPHY; AND RICHARD S. POWELL FOR THE CITY’S WORKERS’ COMPENSATION LEGAL MATTERS Recommendation: Approve SUMMARY The City of Arcadia was recently notified that workers’ compensation claims attorney, John B. Tharp will be retiring effective December 31, 2019. In order to continue effective claims management in workers’ compensation, referrals were obtained for three separate reputable law firms that currently specialize in this scope of work for public sector employers. In order to provide greater flexibility in workers’ compensation legal matters, it is recommended that the City Council approve, and authorize and direct the City Manager to execute Legal Service Agreements with the law firms of Brian T. Riley; Hanna Brophy; and Richard S. Powell. DISCUSSION The City has utilized the law offices of John B. Tharp for over 20 years and have exclusively retained his services for all workers’ compensation related legal matters. When Mr. Tharp announced his retirement for the end of this year he also notified the City that he would not be taking on any new cases. On Tuesday, September 10, interviews were conducted by Mayor April Verlato, City Manager Dominic Lazzaretto, City Attorney Stephen Deitsch, and City staff with three qualified law firms of: Brian T. Riley, Hanna Brophy, and Richard S. Powell, who specialize workers’ compensation cases. The group was impressed with the three firms, specifically their depth and expertise of service, knowledge of the workers’ compensation case history, and the different methods in cases they have handled. Following a thorough review of qualifications, interviews, and reference checks it is recommended that all three law firms be retained in order to have flexibility when necessary to move cases quickly to completion. Each law firm can offer specialized time and service when handling a particular case for the City and can work on different cases Professional Services Agreements for Workers’ Compensation Legal Services October 15, 2019 Page 2 of 2 simultaneously when the City is faced with more critical issues requiring different levels of expertise. This could also keep costs to a minimum by reducing the time cases are pending, especially when dealing with a higher number of cases at any given time. ENVIRONMENTAL IMPACT The proposed action does not constitute a project under the California Environmental Quality Act (“CEQA”), and it can be seen with certainty that it will have no impact on the environment. Thus, this matter is exempt under CEQA. FISCAL IMPACT There would be no fiscal impact to the City’s General Fund. Adequate funds were allocated in the City’s Liability and Workers’ Compensation Funds for legal services as part of the annual budget process. Workers’ compensation fees vary year-to-year due to the unpredictable nature of these cases. Previous attorney fees for John B. Tharp have been $33,921.85 and $36,145.50 for Fiscal Years 2017-18 and 2018-19, respectively. None of the selected firms require retainer costs and the City would only be billed when the firm has engaged in work. Rates range from $80 - $250 per hour, depending on the firm and the level of employee being utilized. The rates of each firm are listed in the attached proposed Professional Service Agreements and are generally commensurate with Mr. Tharp’s rates. RECOMMENDATION It is recommended that the City Council approve, and authorize and direct the City Manager to execute Professional Services Agreements with the law firms of Brian T. Riley; Hanna Brophy; and Richard S. Powell for the City’s workers’ compensation legal matters. Attachments: Proposed Agreement for Legal Services for Law Offices of Brian T. Riley Proposed Agreement for Legal Services for Law Offices of Hanna Brophy Proposed Agreement for Legal Services for Law Offices of Richard S. Powell September 25, 2019 City of Arcadia 240 West Huntington Drive Arcadia, CA 91066 ATTORNEY-CLIENT PROFESSIONAL SERVICES AGREEMENT Brian T. Riley ("Attorney") and City of Arcadia ("Client") hereby agree that Attorney will provide legal services to Client on the terms set forth below. 1.CONDITIONS This Agreement will not take effect, and Attorney will have no obligation to provide legal services, until: (a) Client returns a signed copy of this Agreement; (b) Attorney acknowledges acceptance of representation by counter-signing this Agreement and returning a fully executed copy to Client. Upon satisfaction of these conditions, this Agreement will be deemed to take effect as of the date of signature by Attorney. 2. SCOPE OF SERVICES AND ATTORNEY'S DUTIES Client hires Attorney to provide legal services as following: Defense of CA workers’ compensation cases filed against the City of Arcadia, venued at the CA Workers’ Compensation Appeals Board, at various district offices. Attorney will provide those legal services reasonably required to represent client before the CA Workers' Compensation Appeals Board. Attorney will take reasonable steps to keep Client informed of progress and to respond to Client's inquiries. If a court action is filed, Attorney will represent Client through trial and post- trial proceedings. City of Arcadia Professional Services Agreement Law Offices of Brian T. Riley 2 3. CLIENT'S DUTIES Client agrees to be truthful with Attorney and not withhold information. Further Client agrees to cooperate, to keep Attorney informed of any information or developments which may come to Client's attention, to abide by this Agreement, to pay Attorney's bills timely. Client will assist Attorney by timely providing necessary information and documents. Client agrees to appear at all legal proceedings when Attorney deems it necessary, and generally to cooperate fully with Attorney in all matters related to the preparation and defense of claims against Client. 4. LEGAL FEES AND BILLING PRACTICES Client agrees to pay by the hour at Attorney's rates as set forth below for all time spent on Client's matter by Attorney and Attorney's legal personnel. Current hourly rates for legal personnel are as follows: Attorney $160.00/hour Paralegals $80.00/hour The rates on this schedule are subject to change on 30 days written notice to Client. If Client declines to pay increased rates, Attorney will have the right to withdraw as attorney for Client if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law. The time charged will include, but is not limited to, the time Attorney spends on telephone calls, e-mails and other electronic communications relating to Client's matter, including calls and e-mails with Client, witnesses, opposing counsel, court personnel or other persons. Time is billed in minimum increments one-tenth (.1) of an hour. Attorney will charge for waiting time in court and elsewhere and for travel time, both local and out of town. 5. COSTS AND OTHER CHARGES Attorney will incur various costs and expenses in performing legal services under this Agreement. Client agrees to pay for all costs, disbursements and expenses in addition to the hourly fees. The costs and expenses commonly include, deposition reporters' fees, translator/interpreter fees, deposition costs, outside photocopying and other reproduction costs, travel costs including parking, and transportation time. The foregoing external costs and expenses will be charged at Attorney's cost. Internal charges are billed at the following rates: (1) in-house printing and photocopying —10 cents per page; (2) facsimile charges — 0 cents per page. City of Arcadia Professional Services Agreement Law Offices of Brian T. Riley 3 6. OTHER FEES AND COSTS Client understands that if Client's case proceeds to court action or arbitration, the court may award attorney fees as well as some or all of the type of costs enumerated in Paragraph 6 above to the other party or parties. Payment of such attorney fees and costs shall be the sole responsibility of Client. Similarly, other parties may be required to pay some, or all of the fees and costs incurred by the Client. Client acknowledges that any such determination does not in and of itself affect the amount of the fees and costs to be paid by Client to Attorney pursuant to this agreement. 7. BILLS Attorney will send Client periodic monthly invoices for fees and costs incurred. Each bill will be payable within 35 days of its mailing date. Client may request a bill at intervals of no less than 30 days. If Client so requests, Attorney will provide one within 10 days. Bills for the fee portion of the bill will include the amount, rate, basis for calculation, or other method of determination of the Attorney's fees. Bills for the cost and expense portion of the bill will clearly identify the costs and expenses incurred and the amount of the costs and expenses. Client agrees to promptly review all bills rendered by Attorney and to promptly communicate any objections, questions, or concerns about their contents. 8. CLIENT APPROVAL NECESSARY FOR SETTLEMENT Attorney will not make any settlement or compromise of any nature of any of Client's claims without Client's prior approval. Client retains the absolute right to accept or reject any settlement. 9. DISCHARGE AND WITHDRAWAL Client may discharge Attorney at any time. Attorney may withdraw with Client's consent or for good cause, or if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law. Among the circumstances under which Attorney may withdraw are: (a) with the consent of Client; (b) Client's conduct renders it unreasonably difficult for the Attorney to carry out the employment effectively; and/or (c) Client fails to pay Attorney's fees or costs as required by this Agreement. Notwithstanding the discharge, Client will remain obligated to pay Attorney at the agreed rates for all services provided and to reimburse Attorney for all costs advanced. 10. CONCLUSION OF SERVICES When Attorney's services conclude, whether by completing the services covered by this Agreement, or by discharge or withdrawal, all unpaid charges for fees or costs will be due and payable immediately. Client may have access to Client's case file at Attorney's City of Arcadia Professional Services Agreement Law Offices of Brian T. Riley 4 office at any reasonable time. At the end of the engagement, Client may request the return of Client's case file. If Client has not requested the return of Client's file, and to the extent Attorney has not otherwise delivered it or disposed of it consistent with Client's directions, Attorney will retain the case file for a period of 3 years after which Attorney is authorized by this agreement to have the case file destroyed. If Client would like Attorney to maintain Client's case file for more than 3 years after the conclusion of Attorney's services for Client on a given matter, a separate written agreement must be made between Attorney and Client, which may provide for Client to bear the cost of maintaining the file. In the event Client requests that Attorney transfer possession of Client's case file to Client or a third party, Attorney is authorized to retain copies of the case file at Attorney's expense. The case file includes Client papers and property as defined in Rule 3-700(D)(1) of the California Rules of Professional Conduct. 11. DISCLAIMER OF GUARANTEE AND ESTIMATES Nothing in this Agreement and nothing in Attorney's statements to Client will be construed as a promise or guarantee about the outcome of the matter. Attorney makes no such promises or guarantees. Attorney's comments about the outcome of the matter are expressions of opinion only, are neither promises nor guarantees, and will not be construed as promises or guarantees. Any deposits made by Client, or estimate of fees given by Attorney, are not a representation of a flat fee and will not be a limitation on fees or a guarantee that fees and costs will not exceed the amount of the deposit or estimate. Actual fees may vary significantly from estimates given. 12. PROFESSIONAL LIABILITY INSURANCE DISCLOSURE Pursuant to California Rule of Professional Conduct 3-410, I am informing you in writing that I have professional liability insurance. 13. ENTIRE AGREEMENT This Agreement contains the entire agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties. 14. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect. City of Arcadia Professional Services Agreement Law Offices of Brian T. Riley 5 15. MODIFICATION BY SUBSEQUENT AGREEMENT This Agreement may be modified by subsequent agreement of the parties only by an instrument in writing signed by both of them. 16. EFFECTIVE DATE This Agreement will govern all legal services performed by Attorney on behalf of Client commencing with the date Attorney first performed services. The date at the beginning of this Agreement is for reference only. Even if this Agreement does not take effect, Client will be obligated to pay Attorney the reasonable value of any services Attorney may have performed for Client. THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE ATTORNEY FIRST PROVIDED SERVICES. CLIENT WILL RECEIVE A FULLY EXECUTED COPY OF THIS AGREEMENT. DATED: ________ CLIENT: ____________________________________________________ City of Arcadia 240 West Huntington Drive Arcadia, CA 91066 (626) 574-5400 DATED: _________ By: _______________________________ Brian T. Riley 27201 Puerta Real, Ste 300 Mission Viejo, CA 92691 (949) 800-7700 HOURLY LITIGATION OR DISPUTE RESOLUTION FEE AGREEMENT CITY OF ARCADIA, 240 W. Huntington Dr., Arcadia, CA 91007 (“Client"), hereby employs and engages HANNA, BROPHY, MACLEAN, MCALEER & JENSEN, LLP, 1500 Iowa Ave., Suite 220, Riverside, CA 92507 ("Attorneys"), to represent Client in connection with the matter(s) set forth below, pursuant to the following terms: 1. Conditions: This Agreement will not take effect, and Attorneys will have no obligation to provide legal services, until Client returns a signed copy of this Agreement. 2. Scope of Services: Client hires Attorneys to provide legal services in the following matter: • Litigation Defense regarding Workers’ Compensation cases; • Litigation Defense regarding CalPERS Industrial Disability Retirement (IDR) cases Attorney will provide those legal services reasonably required to represent Client. Attorney will take reasonable steps to keep Client informed of progress and to respond to Client’s inquiries. Services in any matter not described above will require a separate Agreement. 3. Client’s Duties: Client agrees to be truthful with Attorneys, to cooperate, to keep Attorney informed of any information or developments which may come to Client’s attention, to abide by this Agreement, to pay Attorneys’ bills on time and to keep Attorneys advised of Client’s address, telephone number and whereabouts. Client will assist Attorneys in providing necessary information and documents and will appear when necessary at legal proceedings. 4. Professional Fees: Client agrees to pay by the hour at Attorneys’ prevailing rates for all time spent on Client’s matter by Attorneys’ legal personnel. The hourly fee charged for professional services will vary depending upon the specific person providing services. Addendum A attached to this Agreement sets forth the current schedule of fees. The schedule of fees is subject to change upon thirty days' written notice to Client. Fees are charged on the basis of one-tenth of an hour increments. The fee established in the Agreement is not set by law but has been negotiated between Attorneys and Client. 5. Costs and Other Expenses: Attorney will incur various costs and expenses in performing legal services under this Agreement. Client agrees to pay for all costs, disbursements and expenses in addition to the hourly fees, including but not limited to, court costs, costs of process servers, discovery costs, photocopies, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction H&B Fee Agreement City of Arcadia Page 2 costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultants’ fees, expert witness, professional, mediator, arbitrator and/or special master fees and other similar items. Except for the items listed below, all costs and expenses will be charged at Attorneys’ cost. In-office photocopying: 10 cents Facsimile charges: 10 cents Mileage: IRS approved rate Other: Attorneys shall be entitled to interest on all expenses advanced on behalf of Client at the legal rate on all overdue accounts. 6. Billing: A monthly statement shall be mailed to Client for fees and expenses which have accrued. Payment of the monthly statement shall be due within thirty days of mailing. Attorneys shall be entitled to interest at the legal rate on all overdue accounts. If Client's deposit has been reduced to pay for services rendered or costs advanced, payments shall be applied to restore said deposit. 7. Termination: Client may discharge Attorneys at any time by written notice. Unless otherwise agreed, after receipt of the notice and after receiving permission from the court in which we are representing you, if necessary, Attorneys will provide no further legal services and advance no further cots on Client’s behalf. You agree to cooperate with us in facilitating the orderly transfer of your case to new counsel, including promptly signing a substitution of counsel form. Attorneys may terminate our services at any time with Client’s consent or for good cause. Good cause exists if (a) Client fails to pay our statement within 60 days of its date or (b) Client fails to comply with the other terms of this Agreement, including Client’s duty to cooperate with us in protecting your interests, © Client has misrepresented or failed to disclose material facts to Attorneys or refuses to follow Attorneys’ advice on a material matter, or has otherwise made Attorneys’ representation of Client reasonably difficult, or (d) any other circumstance exists that either mandates or permits termination of this engagement under the ethical rules applicable to Attorneys. Termination of Attorneys’ services, whether by Client or by Attorneys, will not relieve Client of its obligation to pay for services rendered and for costs incurred prior to the formal cessation of our services. 8. Lien: Client hereby grants Attorneys a lien as security for payment of fees and costs due and owing under this Agreement. This a lien will attach on any recovery Client may obtain, whether by arbitration award, judgment, settlement or otherwise, in this matter. This lien could delay payments to Client or receipt by Client of some or all of H&B Fee Agreement City of Arcadia Page 3 any recovery Client may obtain as a result of Attorneys’ services until any dispute over the amounts to be paid to Attorneys is resolved. 9. Disclaimer of Result: Nothing in this Agreement and nothing in Attorneys’ statements to Client will be construed as a promise or guarantee about the outcome of the matter. Client understands that certain costs or damages may be awarded by the court against Client. Such costs or damages are solely the obligation of Client and are not the responsibility of Attorneys. 10. Arbitration of Disputes: Any dispute between the parties as to attorney’s fees and/or costs charged under this Agreement shall be resolved as follows: If a fees and/or costs dispute arises, Attorneys will provide Client with written notice of Client’s right to arbitrate under the California State Bar Act (Bus. & Prof. C. § 6200 et seq.). Client and Attorneys may hereafter agree that the arbitration will be binding or that the dispute will ultimately be resolved by another form of binding arbitration. Any other dispute arising under this Agreement or in connection with the provision of legal services by Attorneys, including, without limitation, any claim for breach of contract, professional negligence or breach of fiduciary duty, shall be resolved by a neutral arbitrator, in accordance with the rules set forth in the California Code of Civil Procedure section 1280 et seq. The parties shall be entitled to conduct discovery in accordance with California Code of Civil Procedure section 1283.05. 11. Client File: If Client does not request return of Client’s file upon the conclusion of Client’s matter, Attorneys will retain the file for a period of two (2) years, after which Attorneys may have Client’s file destroyed. If Client desires to have Client’s file maintained beyond two (2) years after the conclusion of Client’s matter, separate arrangements with Attorneys must be made. 12. Merger Clause: The entire terms of this Agreement are expressed in this writing and no other terms, either written or oral, exist. Any modification of the terms of this Agreement must be in writing and signed by both Client and Attorneys. H&B Fee Agreement City of Arcadia Page 4 Executed at Riverside, California. Date: By: David J. Thomas Managing Partner Hanna, Brophy, MacLean, McAleer & Jensen, LLP BY SIGNING THIS CONTRACT IN THE SPACE PROVIDED BELOW, CLIENT ACKNOWLEDGES THAT THE ARBITRATION PROVISION IN THIS AGREEMENT RESULTS IN A WAIVER OF CLIENT’S RIGHT TO A COURT OR JURY TRIAL FOR ANY FEE DISPUTE OR MALPRACTICE CLAIM. THIS ALSO MEANS THAT CLIENT IS GIVING UP CLIENT’S RIGHT TO AN APPEAL. IF CLIENT LATER REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO DO SO, CLIENT MAY BE REQUIRED TO ARBITRATE PURSUANT TO THE PROVISIONS OF THE LAW. CLIENT ACKNOWLEDGES THAT BEFORE SIGNING THIS AGREEMENT AND AGREEING TO THE LIEN AND ARBITRATION PROVISIONS, ATTORNEYS HAVE ADVISED CLIENT OF ITS RIGHT TO CONSULT INDEPENDENT COUNSEL REGARDING THIS AGREEMENT AND CLIENT HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO DO SO. IF MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES TO BE LIABLE, JOINTLY AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS AGREEMENT. THE CLIENT SHALL RECEIVE A FULLY EXECUTED DUPLICATE OF THIS AGREEMENT. Date: By: Dominic Lazzaretto City Manager City of Arcadia H&B Fee Agreement City of Arcadia Page 5 ADDENDUM A HANNA, BROPHY, MACLEAN, MCALEER & JENSEN, LLP SCHEDULE OF HOURLY RATES Below is a list of our Firm's standard hourly rates, effective July 1, 2019: Transactional & Training Services $250 Partner/Associate (re IDR, ADR carve-outs, POA negotiations, etc.) IDR Litigation $250 Partner $200 Associate $150 Paralegal/Law Clerk WC Litigation $190 Partner $175 Associate $140 Paralegal/Law Clerk