Terms of Engagement
Before we can work with you we need you to read our Terms of Service and fill-out a Client Information Form.
TERMS OF ENGAGEMENT
1.1 These Standard Terms of Engagement (Terms) apply to any current engagement and also to any future engagement, whether or not we send you another copy of them. We are entitled to change these Terms from time to time, in which case we will send you amended Terms. Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
2.1 The services we are to provide for you (the Services) are outlined in our letter of engagement along with any further instructions that you provide to us in writing (or that we record in writing).
2.2 In order to provide you with efficient advice and services and to provide the most cost-effective service, it may be that part or all of your instructions will be delegated to other professionals in our firm.
3.1 We will obtain from you contact details, including email address, postal address and telephone numbers. We may provide documents and other communications to you by email (or other electronic means). You will advise us if any of your contact details change.
3.2 We will report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken. You may request a progress report at any time.
4.1 Fees: The basis upon which we will charge our fees is set out in our engagement letter.
(a) If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of the Services. However, we will often provide a fee estimate and reserve the right to charge for extra time for work which falls outside that scope will be charged on an hourly rate basis. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside of the agreed scope and, if requested, give you an estimate of the likely amount of the further costs.
(b) Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake the work are set out in our engagement letter. Any differences in those rates reflect the different levels of experience and specialisation of our professional staff. Time spent is recorded in six-minute units.
(c) Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable to take into account matters such as the complexity, urgency, value and importance of the Services. Full details of the relevant fee factors are set out in Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules)
(d) From 1 July 2018, lawyers in New Zealand became subject to statutory obligations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT). This obliges us to carry out additional work on each file which may include identifying clients, identifying sources of wealth and sources of income, assessing AML/CFT risk in transactions and reporting certain matters to the New Zealand Police Financial Intelligence Unit (FIU). Where we are required to carry out AML/CFT work we are entitled to charge a reasonable fee for that work in addition to our fee for the legal work we carry out for you. In particular we note that should we receive a sum of $1,000.00 or more into our trust account from an overseas source, or should we be required to pay a sum of $1,000.00 or more to an off-shore bank account on your behalf then we have prescribed transaction reporting that must be completed to the FIU and we will charge a sum of $200.00 plus GST for reporting on each payment.
4.2 Disbursements and Expenses: In providing our services we may incur disbursements or have to make payments to third parties on your behalf. You authorise us to incur these disbursements (which may include such items such as search fees, court filing fees, registration fees and travel and courier charges) which are reasonably necessary to provide the Services. You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the Services (which may include items such as experts’ costs or counsel’s fees). These will be included in our invoice to you, shown as “disbursements” when the expenses are incurred (or in advance when we know we will be incurring them on your behalf).
We file away all client files for secure storage with File Saver on a 7-year basis to which a fee of $58.50 will be charged to your account.
4.3 Office Service Charge Fee (Administrative expenses): In addition to disbursements, we may charge a fee of $65.00 to cover out of pocket costs which are not included in our fee and which are not recorded as disbursements. These include items such as photocopying and printing and phone calls.
4.4 GST: Our services will usually attract Goods and Services Tax (GST). If this is the case, GST is payable by you on our fees and charges.
4.5 Invoices: We will send interim invoices to you, usually monthly, and on completion of the matter, or termination of our engagement. We may send you invoices more frequently when we incur a significant expense or undertake a significant amount of work over a shorter period of time.
4.6 Payment: Invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made with us.
(a) You authorise us to deduct our fees and other expenses from funds held in our trust account on your behalf on provision of an invoice to you, unless those funds are held for a particular purpose.
(b) If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.
(c) If your account is overdue we may:
(i) require interest to be paid on any amount which is more than 14 days overdue, calculated at the rate of 15% for the period that the invoice is outstanding;
(ii) stop work on any matters in respect of which we are providing services to you;
(iii) require an additional payment of fees in advance or other security before recommencing work;
(iv) recover from you in full any costs we incur (including on a solicitor/client basis) in seeking to recover the amounts from you, including our own fees and the fees of any collection agency.
(d) Payment may be made by cash, cheque and/or direct credit to our trust account of which further details can be found on our website.
4.7 Fees and disbursements in advance: We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. We may do this, on reasonable notice, at any time.
4.8 Estimates: You may request an estimate of our fee for undertaking the Services at any time. If possible we will provide you with an estimate (which may be a range between a minimum and a maximum amount or for a particular task or step). An estimate is not a quote. Any significant assumptions included in the estimate will be stated and you must tell us if those assumptions are wrong or change. We will inform you if we are likely to exceed the estimate by any substantial amount. Unless specified, an estimate excludes GST, disbursements and expenses.
4.9 Third Parties: Although you may expect to be reimbursed by a third party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third party, you remain responsible for payment to us in accordance with these Terms if the third party fails to pay us.
4.10 Trust Accounting: We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account.
(a) Payments out of the trust account will be made either to you or to others with your authority. Written authorisation from you (and if we are acting for more than one of you, from all of you) will be required when payment is to be made to a third party. Before making a payment to another account we may require verification of the account details by provision of (for example) a copy of a deposit slip, cheque or bank statement showing the account number, a signed authority from you including the bank account details, or a signed letter from the relevant financial institution providing bank account details.
(b) A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided to you periodically and at any time upon your request.
4.11 Funds in our Trust Account: Unless it is not reasonable or practicable to do so, when we hold significant funds for you for more than a short period of time we will place them on call deposit with a registered bank.
(a) Interest earned from call deposits, less withholding tax and an interest administration fee payable to us of 5% of the interest, will be credited to you.
(b) Due to the Foreign Account Tax Compliance Act (‘FATCA’) we are unable to place funds on interest bearing deposit (‘IBD’) for you unless you have first signed a declaration as to your FATCA status. There is a cost in generating the necessary documents, having them executed by you and liaising with our bank. This cost may make it uneconomic to place funds on IBD. Therefore, you acknowledge that we need only consider placing funds in IBD for you where the net interest to be earned will likely exceed $150.00, the sum we estimate it will cost you to complete the FATCA process.
(c) From time to time at the conclusion of the retainer there may be funds held to your credit in the trust account. These will be remitted to you or transferred to another ongoing file if one exists. Due to the administrative costs in dealing with small balances, credit balances of less than $20.00 will not be refunded and may be used to cover administration costs unless you specifically direct us to pay these funds back to you.
5. CONFIDENTIALITY AND PERSONAL INFORMATION
5.1 Once you have instructed us, you authorise us to collect information about you (including all personal information) and anything to do with the matter upon which you are instructing us.
5.2 Confidence: We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person except:
(a) to the extent necessary or desirable to enable us to carry out your instructions; or
(b) as expressly or impliedly agreed by you; or
(c) as necessary to protect our interests in respect of any complaint or dispute; or
(d) to the extent required or permitted by law.
5.3 Confidential information concerning you will as far as practicable be made available only to those within our firm who are providing legal services for you.
5.4 Personal information and Privacy: In our dealings with you we will collect and hold personal information about you. We will use that information to carry out the Services and to make contact with you about issues we believe may be of interest to you. Provision of personal information is voluntary but if you do not provide full information this may impact on our ability to provide the Services. (Note: if you have a privacy statement on your website include reference to this)
5.5 Subject to clause 5.2, you authorise us to disclose, in the normal course of performing the Services, such personal information to third parties for the purpose of providing the Services and any other purposes set out in these Terms.
5.6 We may disclose your name and address to third parties such as credit agencies to perform a credit reference or to undertake credit management or collection processes if it is reasonable to do so.
5.7 The information we collect and hold about you will be kept at our offices and/or at secure file storage sites (including electronic file storage sites) elsewhere, and if located at a secure file storage site a minimum of 5 working days to process the retrieval will apply and you will be charged a processing fee of $10.25. If you are an individual, you have the right to access and correct this information. If you require access, please contact us.
5.8 In some circumstances, access to information may be denied where the disclosure of your personal information breaches the confidential information of other clients or in relation to other matters.
5.9 Verification of identity: The Financial Transactions Reporting Act 1996 requires us to collect from you and to retain information required to verify your identity. We may therefore ask you to show us documents verifying your identity (such as a passport or driver’s licence). We may retain copies of these documents. We may perform such other customer verification checks as to your identity and checks as to the source of any funds associated with any transaction to which the Services relate as we consider to be required by law.
5.10 Compliance: Please refer to section 7 ‘Compliance’ regarding information that may be required to be provided to third parties
6. RETENTION OF FILES AND DOCUMENTS
6.1 We will keep a record of all important documents which we receive or create on your behalf on the following basis:
(a) We may keep a record electronically and destroy originals (except where the existence of an original is legally important such as in the case of wills and deeds).
(b) At any time, we may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us.
(c) We are not obliged to retain documents or copies where you have requested that we provide them to you or to another person and we have done so, although we are entitled to retain copies for our own records if we wish to do so.
6.2 We will provide to you on request copies or originals (at our option) of all documents to which you are entitled under the Privacy Act 1993 or any other law. We may charge you our reasonable costs for doing this.
6.3 Where we hold documents that belong to a third party you will need to provide us with that party’s written authority to uplift or obtain a copy of that document.
6.4 Unless you instruct us in writing otherwise, you authorise us and consent to us (without further reference to you) to destroy (or delete in the case of electronic records) all files and documents in respect of the Services (7 years after our engagement ends (other than any documents that we hold in safe custody for you or are otherwise obliged by law to retain for longer). We may retain documents for longer at our option.
6.5 We may, at our option, return documents (either in hard or electronic form) to you rather than retain them. If we choose to do this, we will do so at our expense.
6.6 We own copyright in all documents or work we create in the course of performing the Services but grant you a non-exclusive licence to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
7.1 We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):
(a) AML/CFT laws; and
(b) Laws relating to tax and client reporting and withholdings.
7.2 We may be required to undertake customer due diligence on you, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons. We may not be able to begin acting, or to continue acting, for you until that is completed.
7.3 To ensure our compliance and yours, we may be required to provide information about you, persons acting on your behalf or other relevant persons to third parties (such as government agencies). There may be circumstances where we are not able to tell you or such persons if we do provide information.
7.4 Please ensure that you and/or any of the persons described previously are aware of and consent to this. It is important to ensure that all information provided to us is accurate. If the information required is not provided, or considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement.
8. CONFLICTS OF INTEREST
8.1 We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves as set out in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules). This may result in a situation arising where we have a conflict of interest.
8.2 We have procedures in place to identify and respond to conflicts of interest or potential conflicts of interest. If a conflict of interest arises we will advise you of this and follow the requirements and procedures set out in the Rules. This may mean we cannot act for you further in a particular matter and we may terminate our engagement.
9. DUTY OF CARE
9.1 Our duty of care is to you and not to any other person. We owe no liability to any other person, including for example any directors, shareholders, associated companies, employees or family members unless we expressly agree in writing. We do not accept any responsibility or liability whatsoever to any third parties who may be affected by our performance of the Services or who may rely on any advice we give, except as expressly agreed by us in writing.
9.2 Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.
9.3 Our advice is opinion only, based on the facts known to us and on our professional judgement, and is subject to any changes in the law after the date on which the advice is given. We are not liable for errors in, or omissions from, any information provided by third parties.
9.4 Our advice relates only to each particular matter in respect of which you engage us. Once that matter is at an end, we will not owe you any duty or liability in respect of any related or other matters unless you specifically engage us in respect of those related or other matters.
9.5 Unless otherwise agreed, we may communicate with you and with others by electronic means. We cannot guarantee that these communications will not be lost or affected for some reason beyond our reasonable control, and we will not be liable for any damage or loss caused thereby.
10. LIMITATIONS ON OUR OBLIGATIONS OR LIABILITY
10.1 To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our Services is limited to the amount available to be payable under the Professional Indemnity Insurance held by the firm.
11.1 You may terminate our retainer at any time.
11.2 We may terminate our retainer in any of the circumstances set out in the Rules including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.
11.3 If our retainer is terminated you must pay us all fees, disbursements and expenses incurred up to the date of termination.
12. FEEDBACK AND COMPLAINTS
12.1 Client satisfaction is one of our primary objectives and feedback from clients is helpful to us. If you would like to comment on any aspect of the service provided by us, including how we can improve our service, please contact the Partner responsible for your business or our Office Manager.
12.2 If you have any concerns or complaints about our services, please raise them as soon as possible with the person to whom they relate. They will respond to your concerns as soon as possible. If you are not satisfied with the way that that person has dealt with your complaint, please raise the matter with the Partner responsible for your business. We will inquire into your complaint and endeavour in good faith to resolve the matter with you in a way that is fair to all concerned.
12.3 If you are not satisfied with the way we have dealt with your complaint the New Zealand Law Society has a complaints service to which you may refer the issue. You can call the 0800 number for guidance, lodge a concern or make a formal complaint.