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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
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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