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OVERVIEW OF THE JOINT REPRESENTATION AND PROSECUTION AGREEMENT¶
The Marsh Law Firm PLLC has and will continue to represent survivors of childhood and adult sexual abuse and exploitation. The Firm’s clients may, from time to time, be filing claims, including civil lawsuits, against one or more of the same defendants. We recommend that, where feasible, your claims be joined in the claims or lawsuits with one or more of our clients who are pursuing claims or lawsuits against one or more of the same defendants. This requires a joint representation agreement and an understanding of the joint prosecution of claims.¶
There are potential conflicts of interest that an arise when an attorney represents more than one client with claims against the same defendant(s). Potential conflicts may also arise from joining the claims of several clients in the same lawsuit or claim resolution process. We are required by the rules of professional conduct that govern lawyers to fully disclose these risks and to obtain your consent before we can represent you. This is required even if there is no actual current conflict of interest. There are also tactical reasons for and against both joint representation and joint prosecution. This overview discusses the potential conflicts and the pros and cons of both joint representation and joint prosecution.¶
We believe that, on balance, your case will be strengthened by joining forces with our other clients who arc pursuing claims or lawsuits against one or more of the same defendants. You arc encouraged to consult with another lawyer to review this issue before you make a decision. We recommend this because our advice concerning this issue could appear to be affected by the fact that we will potentially benefit from having additional clients. You should be totally comfortable and make an informed decision on this issue.¶
There are two separate but related issues you need to decide:¶
whether you will retain our law firm despite our representation of others with claims or lawsuits against one or more of the same defendants; and¶
if you do retain our firm, whether you will join forces with others?¶
It is impossible to anticipate every possibility. Therefore. the pros and cons discussed in this overview are illustrations based on our experience. There are undoubtedly other reasons, both for and against, joint prosecution and joint representation that we have not anticipated, but we believe this overview addresses the material pros and cons.¶
REASONS IN FAVOR OF JOINING MULTIPLE CLIENTS IN THE SAME CASE¶
Some of the entities and individuals involved with sexual abuse are rich and powerful. When several individuals band together, it helps compensate for that wealth and power; you arc stronger when you are part of a group than you are alone. If multiple abuse survivors are plaintiffs in the same case, each plaintiff’s story reinforces the story of every other plaintiff. While it might be possible to believe that one person made up his story, when three or four or more victims come forward with the same basic¶
story, it will be very hard to argue that everyone’s story is untrue. (For a good example, read New York Magazine’s 116 No Longer Afraid:. 35 Women Tell Their Stories About Being Assaulted by Bill¶
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The Firm shall rake no role whatsoever in the arbitration other than to provide the arbitrator(s) with neutral and objective information and copies of documents and other requested material. The Firm cannot represent any client in the arbitration, cannot provide advice to any client concerning the outcome of the arbitration, and cannot tender any opinion regarding any such outcome.¶
The Clients participating in arbitration shall share equally in the costs of the arbitration, and the Firm is authorized to compensate the arbitrator(s) from the clients’ recovery in the case.¶
The Client confirms that he or she has read and understands this section and voluntarily agrees to binding arbitration. In doing so, the Client is voluntarily giving up important constitutional rights to trial by judge or jury. as well as rights to appeal the arbitration decision. The Client may consult with an independent lawyer of the Client’s choice to review these arbitration provisions, and this entire agreement, prior to signing this Agreement.¶
IL COST SHARING¶
The Firm is authorized to incur Expenses (as defined and provided in the Legal Services Agreement between the Firm and the Client) for the prosecution of each of their clients cases as they deem reasonable. necessary, and appropriate.¶
Each client is responsible for Expenses incurred in the prosecution of his or her case as reflected in the Legal Services Agreement between each client and the Firm. The Client understands that some Expenses will be jointly incurred by the Firm for the benefit of some or all Clients, and as to those Expenses. each benefiting client will be responsible for that client’s proportionate share of such Expenses.¶
“Joint Expenses” are those Expenses that benefit more than one client to a significant degree. For example. many filing fees and depositions costs are Joint Expenses that will often significantly benefit each client who is joined together in the same case.¶
“Individual Expenses” are those Expenses that benefit only one client or one client to a significant degree. For example, the cost to obtain the records of a particular client and the cost of a client’s deposition are Individual Expenses that will often significantly benefit only one client.¶
The Firm shall make an initial allocation of all Expenses, including whether an Expense is Joint or Individual and, if Joint, whether it will be shared by all Clients or some clients. A client may object to an allocation. If the Firm and the client(s) cannot agree on the allocation of Expenses, the client may request, and the Firm will agree to, mediation. This paragraph does not waive any right any client may have to a judicial accounting.¶
9. CONFIDENTIALITY¶
In the course of any cast, some of the Firm’s jointly represented Clients may need to meet and communicate with the Firm either individually or in a group. The Client understands that such communication is highly confidential and that any breach of confidentiality can prejudice other¶
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CONCLUSION¶
Weighing all of these factors, we strongly believe that the advantages of joining together the claims of multiple clients, and jointly representing multiple clients, outweigh the potential disadvantages. In addition, since our firm has a great deal of experience representing survivors of sexual abuse and exploitation, we believe there are distinct advantages to our firm representing multiple abuse survivors, including yourself.¶
Please review the Joint Representation Agreement and this analysis carefully, ask any questions, and consider our advice that you consult with another attorney concerning the issues raised both by our representation of multiple clients and by joining multiple clients in the same case. If you agree with the terms of the agreement and have carefully considered the issues in this overview please review and sign the following Joint Representation and Prosecution Agreement and return this entire document to our office.¶
JOINT REPRESENTATION AND PROSECUTION AGREEMENT¶
J. INTRODUCTION¶
This is an agreement (“Agreement”) between (“Client”) and the Marsh Law Firm PLLC (“the Firm”), and between the Client and other clients of the Firm who have claims against any and/or all individuals and/or entities arising from the same conduct fin which the Firm is representing Client under the Legal Services Agreement between Client and the Firm. References to the “Firm” include any other attorney the Firm associates with in the course of representing the Client. References to “Clients” include the Client and other parties the Firm may represent now or in the future who have claims arising from the same conduct for which the Firm is representing Client under the Legal Services Agreement between Client and the Firm.¶
This Agreement will be effective with the date the Finn’s first perform services. Notwithstanding the foregoing, this Agreement will not take effect, and the Firm will have no obligation to provide services until the Client provides the Firm with a signed copy of this Agreement.¶
The Client has engaged the Firm to represent the Client in pursuing the claims outlined in the Legal Services Agreement signed by the Client (-Claims”). The Client consents to Client’s Claims being joined in the same lawsuits, actions, or claim resolution processes with those of one or more of the Firm’s other clients. The Client understands that joint representation by the same attorneys may have both advantages and disadvantages. Likewise, the Client understands that joining Client’s Claims with those of other clients may have both advantages and disadvantages. The Client acknowledges that the Client has reviewed and understands the foregoing Overview of the Joint Representation and Prosecution Agreement that outlines various conflicts of interest that might arise and reasons for and against joint prosecution and joint representation.¶
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The Client and the Firm agree that it is generally desirable to conduct settlement negotiations for each individual client and will endeavor to do so with each client’s case negotiated separately—based on its own unique strengths and weaknesses—and not linked to the settlement of any other client’s case.¶
No dient may interfere with any other client’s right to settle. The Client recognizes, however, that it is possible that an aggregate settlement might be in every Clients’ interest, with a single lump sum fund shared by all Clients, or a joint-fund settlement with a lump sum shared by two or more Clients. Any two or more Clients may agree to enter into a joint-fund settlement. Neither an aggregate settlement nor a joint-fund settlement may be imposed upon any client. Any one client may choose to take his or her case to trial even though every other client chooses to settle in advance of trial. The Client understands that each client has the power and right to prevent an aggregate settlement that would settle the Client’s claim.¶
In the event of an aggregate or joint-hind settlement, the participating Clients may decide among themselves as to how the fund shall be allocated. An allocation may not be imposed on any client, except by Arbitration under Section 6 of this Agreement. The Firm shall have no role whatsoever in the allocation decision and cannot represent any client, including Client, in that process. The Client and the other Clients may. however, be represented by other counsel. lithe participating Clients cannot decide upon an allocation, the allocation decision shall be submitted to final and binding arbitration as provided in Section 6 of this Agreement.¶
7. ARBITRATION¶
In the event that arbitration as provided for in this agreement is necessary, it shall be conducted as follows:¶
Except as provided below, the arbitrator shall be chosen at random from a list of qualified mediators. If the first name declines to serve, the second name shall be the chosen arbitrator. If he or she declines to serve, the third name drawn shall be the chosen arbitrator.¶
The Clients in arbitration may determine, by a two-thirds vote, to have the arbitration conducted by a panel of three arbitrators whose decisions shall be made by a majority of the panel. In such a situation, six names shall be chosen at random from a list of qualified mediators with the first three names becoming the arbitration panel. If any of the first three names declines to serve, an additional name shall be selected at random from the list of qualified mediators.¶
The form and rules governing the arbitration shall be at the sole discretion of the arbitrator(s). The decision of the arbitrator(s) will be final and cannot be appealed. except for misconduct by the arbitrator(s).¶
The Client may be represented by independent counsel at the arbitration.¶
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shall otherwise agree to settle, sell, or transfer any Claim without first obtaining the consent of the other.¶
S. JOINT REPRESENTATION AND DIVISION OF ATTORNEY’S FEE¶
The Client agrees that the Firm may seled and associate with other attorneys to assist in the representation (“Associated Attorney”), for example to bring legal proceedings in jurisdiaions where Firm attorneys arc not licensed. The Attorney’s Fee will not increase by reason of this association. The Associated Attorney will receive a portion of the Attorney’s Fee based on the rime expended and services provided by the Associated Attorney.¶
6. CONFLICTS WAIVER¶
The Client acknowledges that the Firm and the Associated Attorney(s) may represent other viOims and plaintiffs and may seek recoveries on behalf of such other viOims and plaintiffs from one or more of the same defendants that the Firm, and Associated Attorney(s) are seeking recovery from on the Client’s behalf. The Client hereby waives in advance any conflict that may arise in this siruation(s). The Client also recognizes that circumstances might arise in which the Firm or Associated Attorney(s) may be prevented or disqualified from representing the Client in a particular case or cases. The Firm will promptly inform the Client of any such situation that may require such withdrawal in whole or in part. By signing this Agreement, the Client expressly acknowledges these risks and consents to such waiver and withdrawal.¶
Furthermore, in the event the Client at any time and for any reason eleas to discharge the Firm, or if an adverse relationship arises between the Client and any of the Firm’s other clients, the Client acknowledges, agrees, and consents that the Firm may continue without restriction to represent the Firm’s other client(s) in any and all matters, induding those that arise from or relate to any Claim(s), including the Claim(s) in which the confliO arose.¶
7. COSTS, DISBURSEMENTS, AND LITIGATION EXPENSES¶
The Firm may incur various costs and litigation expenses in performing legal services under this Agreement. The Client agrees to pay all costs, disbursements, and litigation expenses paid or owed by¶
the Client in connexion with the Claim(s), or which have been advanced by the Firm on the Client’s behalf and which have not been previously paid or reimbursed to the Firm (colledively “Expenses”).¶
Unless otherwise determined by the court, costs, disbursements, and litigation expenses commonly include court fees; jury fees; service of process charges; court and deposition reporters fees; transcripts; interpreter/translator fees; photocopying reprodudion costs and printing; notary fees; messenger and other delivery fees; postage; deposition costs; reasonable travel expenses including¶
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that one client’s story benefits another client, such as a client who will testify that he or she complained to a defendant that children were in danger but nothing was done.¶
Another advantage of representing multiple clients, as opposed to each having separate counsel or each filing their own separate lawsuit, is sharing costs. Many costs can be shared, such as court filing fees, deposition costs, and travel expenses, while some costs, such as individual psychological evaluations or other costs associated with proving individual damages and losses, are not shred.¶
Likewise, the prosecution of the case will be more efficient and more consistent if it is not run by a group of attorneys each with his or her own client and his or her own strategy.¶
It’s also possible that clients who the Firm has decided not to represent will hire attorneys who might lack our Firm’s skill and sophistication, and who could take actions that adversely affect your case, the law, and future prospects for recovery.¶
OUR REASONS AGAINST REPRESENTING MULTIPLE CLIENTS¶
Our greatest concern in representing multiple clients is that a conflict of interest could develop between or among our clients. It is impossible to anticipate every potential conflict. The biggest risk in multiple client cases is that the defendant might lack the assets or insurance coverage to pay all claims in full. If we collect all of that money for one client, then we may have deprived our other clients of any chance of being fairly compensated by that defendant.¶
It is also possible that a defendant will insist on a common settlement fund which means that it will pay a fixed amount to settle all cases. The challenge in that situation is dividing the settlement fund among multiple clients. We could not represent any one client against the interests of any other client. It would be necessary, therefore, to refer all of our clients to separate attorneys to resolve the issue concerning the distribution of the common fund.¶
On the other hand, defendants and their insurance companies often insist on a common settlement fund because they want to resolve all of their risk at the same time. In turn, they are often willing to pay more to resolve all of their risk than if they are only settling some of the claims.¶
It is also possible that one client will reveal information that is damaging to another client. In this situation, we may no longer be able to represent either client and each client may need to seek separate attorneys.¶
Finally, you lose some measure of confidentiality when you join forces with another party. Thus, if there is a meeting of several clients to discuss joint strategy, no one can prevent one client from revealing what was said at the meeting. Even an agreement to keep the content of the meeting confidential is difficult to enforce. (Individual attorney-client communications, however, always remain strictly confidential.)¶
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