Engagement Agreement for Legal Services

Engagement Agreement – Effective as of November 11, 2021.

The following terms are agreed to between you (the “client”) and Brian Russ Law, Inc., operating as Brian Russ Law, Inc. in the state of California (the “law firm”). Please print this page and/or download it for your records.

1. All advance fees and reimbursements are fully refundable until services are rendered. The client is entitled to a refund of money for services not yet rendered, at any time during the process. If services have only partially been rendered, the client is entitled to a reasonable partial refund. Fees will be treated as the law firm’s own and deposited in the law firm’s operating account until the client requests a refund or services are rendered. In the event of a refund of more than half of client’s original payment, the law firm will keep $35 to cover approximate payment processing fees, which the firm does not recover if a refund is issued, on top of professional fees. If the law firm’s attorneys or staff take time to answer questions asked by a client, and the client then requests a full refund, the law firm will keep $100 for these services already rendered.
2. For the avoidance of doubt, if the client purchases a package for attorney of record representation only, the law firm’s fees will be considered fully earned once the law firm files the appropriate paperwork with the USPTO to be registered as the attorney of record. If the client purchases a package for the filing of a trademark application, then the fee will be considered fully earned upon the issuance of the law firm’s opinion letter after the clearance search, but the law firm will refund any monies collected for USPTO filing fees should the client decide not to proceed with filing the application.
3. The client acknowledges that the law firm may currently represent, may have represented in the past, or may represent in the future, a competitor of the client or even a party legally adverse to the client. The client consents to representation in the aforementioned situations. Possible situations may include, but not be limited to, helping a competitor’s trademark application succeed even if that application’s success may weaken or dilute the client’s trademark, or strengthen a competitor’s legal case against the client. However, the law firm will not represent one client in a way that violates the law firm’s duties to any other current client, and will withdraw from representation in a matter where it believes it cannot in good conscience fully represent both clients.
4.  The law firm and the client both reserve the right to terminate the attorney-client relationship at any time. In such a case, the client will receive a refund for any services not yet rendered.
5. The client is only retaining the law firm to represent it on the matter detailed in the form or otherwise agreed to between the law firm and the client. Further, the law firm is not obligated to perform any additional services relating to this matter that it has not agreed to (e.g. substantive office action responses, licensing agreements, litigation) until those services are agreed to by both the law firm and the client. The law firm will not charge an unreasonable amount for any further services, and will base all fees, whether billed hourly or on a flat fee basis, on the law firm’s hourly rate of $300 per hour.
6. The client agrees that funds paid to the law firm in advance will be deposited to the law firm’s operating account and treated as the law firm’s own funds, as allowed under California Bar ethics rules. Regardless, the client is still entitled to a refund at any time before services are rendered, or a partial refund if the services are partially rendered.
7. The client gives the law firm permission to publicly acknowledge the client’s status as a client and to use the client’s name and branding on the law firm’s website and in promotional materials, as a way of showing examples of “success stories.” The client gives the law firm permission to write about details of the client’s case or the client’s business on the law firm’s website, legal blog, and social media, and to quote emails from the client for testimonial purposes. The client may revoke either of these privileges at any time. Regardless, the law firm will not reveal any information of the client’s that it deems to be sensitive. Note that many of the details provided by the client to the law firm, including name and mailing address of the individual or business entity that owns the trademark, will become part of the public record once a trademark application is filed, and these details will be available, permanently, on the USPTO trademark database. Note that any data you enter into the law firm’s forms or that you otherwise reveal to the law firm might be used for the law firm’s own internal analytics, or might be compiled anonymously into data reports.
8. The client is paying not only for the specific trademark action requested, but also for the availability of an attorney, as well as communication with the attorney. Any fees or reimbursements still held by the law firm after two years from the date of payment will be considered to have been earned as an “availability fee” and will no longer be refundable after that amount of time has passed, unless long-term holding has specifically been arranged between the law firm and the client.
9. The client understands that these engagement terms are subject to change from time to time and the client is responsible for checking these terms periodically. Regardless, the law firm will not mislead the client by promising or advertising one included service and then materially altering the terms to remove its obligation to perform that service.
10. The client is either at least 18 years old or has express permission and guidance from a parent or guardian throughout this process.
11. The law firm may have to switch status from “Use In Commerce” to “Intent to Use” for procedural reasons, such as an inadequate specimen. If this is the case, the law firm will charge the client for intent-to-use–related fees as described in the previous paragraph.
12. Representation ends either when the trademark application reaches registration or is permanently abandoned. Client is no longer a client of the law firm after one of these two milestones is reached.
13. The law firm reserves the right to use its professional discretion to determine which words to disclaim on a trademark application because of non-registrability, unless client specifically requests that certain words are disclaimed or not disclaimed. Occasionally the USPTO will determine that the wording of a mark is wholly descriptive and either recommend that the mark be amended to the Supplemental Register in the case of a word mark, or that all of the wording in a mark be disclaimed in the case of a mark with design elements. The law firm reserves the right to accept the USPTO’s recommendation if the law firm agrees with the USPTO’s analysis, unless the client specifically indicates that the Supplemental Register or disclaimer of all wording is not acceptable.
14. Client agrees to be truthful with law firm and not to withhold information, to cooperate, to keep law firm informed of any information or developments which may come to Client’s attention, to abide by this agreement, to pay law firm’s bills on time, and to keep law firm advised of Client’s address, telephone number and whereabouts.  Client will assist law firm by timely providing necessary information and documents.  Should Client fail to follow these duties and law firm expends an inordinate amount of time, energy, and resources holding the Client to these standards, then Client agrees law firm has the right to immediately terminate representation and keep all firms paid to law firm.
15. Client may have access to Client’s case file by requesting such from the law firm.  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 law firm has not otherwise delivered it or disposed of it consistent with Client’s directions, law firm will retain the case file for a period of 12 months, after which law firm is authorized by this agreement to have the case file destroyed.  In the event Client requests that law firm transfer possession of Client’s case file to Client or a third party, law firm is authorized to retain copies of the case file.  The case file includes Client papers and property as defined in Rule 3-700(D)(1) of the California Rules of Professional Conduct.
16. 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.  Unless this agreement is for representation at a flat-fee, any deposits made by client or estimate of fees given by Attorney are not a representation of a guarantee that fees will not exceed the amount of the deposit or estimate.  Additionally, actual costs may vary significantly from estimates given. 
17. Nothing in this Agreement and nothing in law firm’s statements to Client will be construed as a promise or guarantee about the outcome of the matter.  Law firm makes no such promises or guarantees. Law firm’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.  Unless this agreement is for representation at a flat-fee, any deposits made by client or estimate of fees given by law firm are not a representation of a guarantee that fees will not exceed the amount of the deposit or estimate.  Additionally, actual costs may vary significantly from estimates given. 
18. ARBITRATION
    1. A. ARBITRATION OF ALL DISPUTES INCLUDING CLAIMS OF MALPRACTICE. Any dispute between law firm and Client regarding the construction, application or performance of any services under this Agreement, and any claim arising out of or relating to this Agreement or its breach, including, without limitation, claims for breach of contract, professional negligence, breach of fiduciary duty, misrepresentation, fraud and disputes regarding attorney fees and/or costs charged under this Agreement (except as provided in Paragraph B below) shall be submitted to binding, confidential arbitration in accordance with the rules of the American Arbitration Association upon the written request of one party after the service of that request on the other party. The parties shall appoint one person to hear and determine the dispute. Such confidential arbitration shall be held in Sacramento County, California, and the decision of the arbitrator shall be conclusive and binding on the parties and shall be enforceable in any court of competent jurisdiction. Each party shall bear its own costs, expenses, attorney’s fees and an equal share of the arbitrators’ and administrative fees. Client and law firm confirm that they have read and understand subparagraphs A above, and voluntarily agree to binding arbitration. In doing so, Client and law firm voluntarily give up important constitutional rights to trial by judge or jury, as well as rights to appeal. Client may consult with an independent lawyer of Client’s choice to review these arbitration provisions, and this entire agreement, prior to signing this Agreement.
    2. B. MANDATORY FEE ARBITRATION. Notwithstanding subparagraph A above, the parties acknowledge that in any dispute over attorney’s fees, costs or both subject to the jurisdiction of the State of California over attorney’s fees, charges, costs or expenses, Client has the right to elect arbitration pursuant to procedures as set forth in California Business and Professions Code Sections 6200-6206 (the Mandatory Fee Arbitration Act). If, after receiving a Notice of Client’s Right to Fee Arbitration, Client does not elect to proceed under the Mandatory Fee Arbitration Act procedures by failing to file a request for fee arbitration within 30 days, any dispute over fees, charges, costs or expenses, will be resolved by binding arbitration as provided in the previous paragraph A. Arbitration pursuant to the Mandatory Fee Arbitration Act is non-binding unless the parties agree in writing, after the dispute has arisen, to be bound by the arbitration award. The Mandatory Fee Arbitration Act procedures permit a court trial after non-binding arbitration, or a subsequent binding contractual arbitration if the parties have agreed to binding arbitration, if either party rejects the award within 30 days after the award is mailed to the parties.
19.  Law firm and Client agree to try to settle all disputes between them through private mediation before initiating any arbitration, litigation or other dispute resolution procedure. The disputes which are subject to mediation include without limitation the following: claims regarding the construction, application or performance of services, claims for breach of contract, professional negligence, breach of fiduciary duty, misrepresentation, fraud and attorney’s fees and costs. Any party to the agreement may initiate mediation through service of a written demand in person or by mail or, if agreed to by the parties in advance, by e-mail to the opposing party. The mediation session will occur at a time mutually agreed upon by the parties in consultation with a mutually selected mediator, though no later than sixty (60) days after the date of services of the initial notice, unless otherwise agreed by the parties and mediator. Each party shall bear its own fees and costs for the mediation. Under Evidence Code section 1129(a), Attorney is required to provide notice and have Client acknowledge certain confidentiality restrictions prior to participating in mediation. Attorney will provide Client with the Notice and Acknowledgement form.
20. 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.
21. 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.
22. This Agreement may be modified by subsequent agreement of the parties only by an instrument in writing signed by both of them.
23. This Agreement will govern all legal services performed by law firm on behalf of Client commencing with the date this agreement is accepted by Client. Acceptance and signature is memorialized by Client accepting these terms on Attorney’s website. 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 law firm the reasonable value of any services law firm may have performed for Client.
24. Client understands that under Business and Professions Code § 6148 that Client is entitled to a writing concerning the terms of this engagement agreement signed by both law firm and Client. However, after being informed of such opportunity, by accepting the terms of this agreement, Client elects, pursuant to California Business and Professions Code § 6148(d)(3), to waive the writing concerning the fees hereunder and waives the opportunity to have the law firm and Client sign the agreement hereunder. Furthermore, Client expressly agrees that by accepting the terms of this agreement by affirmatively clicking a checkbox and proceeding with the purchase, the Client’s actions stand in the form of Client’s signature on such writing, and that law firms offering of such terms in a clickthrough format evidence law firm’s signature on the terms. Law firm shall make a copy of these terms available to Client upon request should Client lose their copy or not print and download the terms.
25. Law firm reserves the right to immediately terminate this agreement should Law firm discover Law firm has a pre-existing conflict of interest related to the services engaged hereunder. Should such a termination be needed, Law firm will fully refund all monies Law firm received from or for Client’s legal services hereunder. Law firm agrees to take those steps necessary to reduce and minimize and prejudice befalling client due to Law firm’s termination.