TERMS OF ENGAGEMENT (Rules of Conduct & Client Care 2008)
These Standard Terms of Engagement (“Terms”) set out how we will have professional relationship with you. They will apply in respect of all work carried out by us for you, unless we agree otherwise in writing. We will send these terms to you with our covering Letter of Engagement which will have specific details of what you instruct us to do, our fees to do this work and who will attend to it for you.
The services we are to provide for you are outlined in our Client Care Information form.
(a) By instructing us you accept the liability to pay the account we render for fees for work done together with all disbursements and other charges incurred in respect of such instructions.
The fees we will charge will be estimated or fixed in respect of your instructions to us in the Client Care Information form we send to you. A fee may be fixed by prior agreement with us but all fees are derived by taking the following matters into account:
- The time involved.
- Skill knowledge and responsibility involved.
- Novelty and urgency of the matter.
- The reasonable costs of running a law practice.
- Importance of the matter to you and the results achieved for you.
- Any fee quoted or estimated which has already been agreed.
- Unusual nature.
- The number of documents involved.
- Variations to instructions you give us.
- Value of assets or monies handled and the degree of risk and responsibility assumed by the lawyer.
In our Client Care Information form e will give you an estimate or guide as what our fee and disbursements are likely to be. If the work does not proceed as we expected due to unforeseen complications we reserve the right to charge for all extra work done. We will advise you first if the estimated fees look likely to be exceeded to seek your further instructions.
(b) If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of our services. 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 the agreed scope and, if requested, give you an estimate of the likely amount of the further costs.
(c) Where our fees are calculated on an hourly basis, the hourly rates are set out in our Client Care Information form. The differences in those rates reflect the experience and specialisation of our professional staff. Time spent is recorded in six (6) minute units, with time rounded up to the next unit of 6 minutes.
2.2 You authorise us to incur expenses on your behalf required or reasonably necessary in providing services to you. We will charge you for any disbursements we incur in meeting your instructions. Disbursements are payments we make on your behalf such as government charges to search titles, to register transfers of title and to pay for LIM reports, valuations and are charged to you without any addition or surcharge by us.. These will be included in our invoice to you when the expense is incurred. We may require an advance payment for the disbursements or expenses which we will be incurring on your behalf.
2.3 GST: Is not payable by you on our fees and charges but it is often included in disbursements charged to you.
2.4 Invoices: In property transactions you will usually be invoiced for payment on settlement date when the matter is completed. In other kinds of instructions we may send interim invoices to you, usually monthly and on completion of the matter, or termination of our engagement. We may also send you an invoice when we incur a significant expense.
2.5 Payment: Invoices are payable before/on settlement day for property and business transactions or within 7 days of the date of the invoice for other matters, unless alternative arrangements have been made with us. You authorise us to deduct our fees and 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 specific purpose. We may require interest to be paid on any amount which is more than 7 days overdue. Interest will be calculated at the rate of 5% above our firm’s main trading bank’s 90-day bank bill buy rate as at the close of business on the date payment became due.
2.6 Security: We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. You authorise us: (a) to debit against amounts pre-paid by you; and (b) to deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have provided an invoice.
2.7 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, nevertheless you remain responsible for payment to us if the third party fails to pay us. Where we are reasonably required to make payments to third parties in providing services you require you authorise us to make these payments from your funds held in our trust account or to invoice you for these as disbursements.
3. Confidentiality and Personal Information
3.1 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) to the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers.
3.2 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.
3.3 We will of course, not disclose to you confidential information which we have in relation to any other client.
3.4 Privacy: In our dealings with you we will collect and hold personal information about you. We will use that infomration 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 our ability to provide services to you.
3.5 Subject to clause 3.1 above 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.
3.6 We may disclose your name and address to third parties such as credit agencies to perform a credit reference check or to undertake credit management or collection processes if it is reasonable to do so.
3.7 The information we collect and hold about you will be kept at our offices and/or at any secure file storage sites (including electronic file storage sites) elsewhere. If you are an individual, you have the right to access and correct this information. If you require access, please contact us.
3.8 Verification of Identity: The law 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.
4.1 You may terminate our retainer in writing at any time.
4.2 We may terminate our retainer in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers. We reserve the right to cease to act for you if our fees or other charges are not paid when due or you will not or cannot provide to us instructions required in addition to those initially provided by you.
4.3 If our retainer is completed or is terminated you must pay us all fees due up to the date of termination and all expenses incurred up to that date.
5. Documents Records and Information
5.1 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 the 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.
5.2 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.
5.3 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.
5.4 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 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.
5.5 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.
5.6 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.
6. Conflicts of Interest
We have procedures in place to identify and respond to 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 Law Society’s Rules of Conduct and Client Care for Lawyers.
7. Duty of Care
7.1 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.
7.2 Our advice to you is not to be referred to in connection with any prospectus, financial statement or public document without our written consent.
7.3 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.
7.4 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.
7.5 Unless otherwise agreed we may communicate with you and with others by electronic means. We cannot guarantee that these communications will always be timely or may 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.
8. Limitations on Our Obligations or Liability
8.1 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.
9. Trust Account
We maintain a trust account for all funds which we receive from clients (except monies received for payment of our invoices). If we are holding significant funds on your behalf we will normally lodge those funds on interest bearing deposit with a bank. In that case we may charge a banking administration fee of $25.00 including any GST. We do not receive any interest from any bank on your money. All interest less any taxes is paid to you. Tax will be deducted at your personal PIR tax rate if you provide us with your IRD number.
10. Feedback and Complaints
10.1 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 services provided by us including how we can improve our service, please contact Ian Watson, Principal.
10.2 If you have any concerns or complaints about our services please raise them as soon as possible with Ian Watson, Principal. He will enquire into your complaint and endeavour in good faith to resolve the matter with you in a way that is fair to all concerned.
10.3 If you are not satisfied with the way we have dealt with your complaint the New Zealand Law Society has a complatins service to which you may refer the issue. You can call the 0800 number for guidance, lodge a concern or make a formal complaint. Matters may be directed to:
Lawyers Complain Service
P O Box 5041, Wellington 6140, New Zealand
PH 0800 261 801 Email: firstname.lastname@example.org
To lodge a concern:
To make a formal complaint:
11.1. These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
11.2. We are entitled to change these Terms from time to time, in which case we will send you amended Terms.
11.3. Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.
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