Standard Terms of Engagement
These standard terms of engagement (“Terms”) apply in respect of all work carried out by us for you, except to the extent that we otherwise agree with you in writing.
1 Services
1.1 The services we are to provide for you are outlined in our engagement letter together with any further instructions that you provide to us in writing (or that we record in writing).
2 Financial
2.1 Fees: The fees we will charge or the manner in which they will be arrived at, are set out in our engagement letter. Our fees are charged with reference to New Zealand Law Society guidelines where we are entitled to reasonable fees taking into account the time spent; skill, knowledge and responsibility required; value of the property involved; complexity, novelty, importance and urgency of the matter; reasonable costs of running a law practice; and the result.
a 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.
b Where our fees are calculated on an hourly basis, the hourly rates are set out in our engagement letter or as amended by us annually on the 1st of April. The differences in those rates reflect the experience and specialisation of our professional staff. Time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes.
c Any estimate provided to you is based on information you have provided to us and does not amount to a quote and our fees and expenses may exceed this estimate. Accordingly the more detailed information you can provide to us the more accurate our fees estimate will be. We note that due to the nature or extent of your instructions and the way in which other parties who are dealing with in this matter conduct business may cause additional costs to be incurred. Our estimate may also be varied by new facts or circumstances coming to our attention or delays outside of our control.
2.2 Disbursements and expenses: In providing services we may incur disbursements on your behalf such as land registration and search fees, valuation fees, court filing fees and other expenses payable to third parties for which there may be an additional charge. You authorise us to incur these disbursements which are reasonably necessary to provide the Services. In addition, we may charge an AML (Anti-Money Laundering) Due Diligence Fee to cover the cost of completing our client due diligence processes when onboarding new clients and opening new matters for existing clients.
2.3 GST (if any): Is payable by you on our fees and charges.
2.4 Invoices: We will 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 or undertake a significant amount of work over a shorter period of time.
2.5 Payment: Invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made with us. 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 current overdraft rate. You will also be liable for all legal costs and debt collection costs incurred, including costs on a Solicitor/Client basis in our enforcement, or attempted enforcement, of our rights under these terms. We reserve the right to stop performing any work for you in any matter should any fee invoiced to you remain outstanding after the due date for payment
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.
c You expressly authorise us to take our fees and disbursements at the time of settlement of any conveyancing transaction notwithstanding that at the time of settlement an invoice may not have been issued provided that we provide you with an invoice within 7 days of such settlement.
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.
2.8 Personal Guarantee: Where the instructing client is a limited liability company, trust, society or other institution, the directors, shareholders, trustees or other individual instructing us on that client’s behalf shall remain personally liable for the fees and disbursements incurred on the client’s behalf. If you instruct us on behalf of someone else you are liable to pay our fees and disbursements if the person on whose behalf you instruct does not do so.
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 Personal information and privacy: In our dealing 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.
3.4 Subject to clause 3.1, 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.
3.5 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 if it is reasonable to do so.
3.6 The information that we collect and hold about you will be kept at our offices and/or at secure storage sites (including electronic file storage sites) elsewhere. If you are an individual, you have the right to access and correct this information by contacting us.
3.7 Verification of Identity: We are required by law 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 licence) and your address. We may retain copies of these documents. We may perform such other verification checks as to your identity and as to the source of funds associated with any transaction to which the services relate as we consider to be required by law. If you do not provide the identity documents and the source of funds verification (if required) when requested prior to the commencement of the Services, we may not be able to act for you and may terminate our engagement.
3.8 We will of course, not disclose to you confidential information which we have in relation to any other client.
4 Termination
4.1 We may terminate or suspend our retainer at any time. These include discovery of a conflict of interest, failing to provide us with adequate instructions/responses, non-payment of our fees and disbursements, not following or ignoring our advice, or our considering that the relationship between us is such that you may be better served if we did not continue to act for you.
4.2 You may terminate our retainer in any of the circumstances set out in the Law Society's Rules of Conduct and Client Care for Lawyers. If our retainer is terminated you must pay us all fees due up to the date of termination and all expenses incurred up to that date.
5 Retention of files and documents
5.1 You authorise us (without further reference to you) to destroy all files and documents for this matter (other than any documents that we hold in safe custody for you or are otherwise obliged by law to retain for longer) 7 years after our engagement ends or earlier if we have converted those files and documents to an electronic format. The cost of retaining and converting the file to an electronic format will be recovered from you and dependent on the size of the file. The maximum cost for the file conversion and retention will be 35.00 plus GST.
5.2 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 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 Conflicts of Interest
6.1 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. This may mean that we cannot act for you further in a particular matter and we may terminate our engagement.
7 Duty of Care
7.1 Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to this.
8 Trust Account
8.1 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 will charge an administration fee of 5% of the interest derived.
8.2 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.
8.3 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 you behalf will be provided to you periodically and at any time upon your request.
9 Intellectual Property
9.1 All work produced by us, and any intellectual property connected with such work, belong to us. We may re-use or modify such work for other clients, while maintaining confidentiality. 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.
10 Communications
10.1 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.
10.2 You agree that we may provide you from time to time with other information that may be relevant to you, such as newsletters and information bulletins.
11 General
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. We are entitled to change these Terms from time to time, in which case we will send you amended Terms.
11.2 Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
11.3 We are members of the Auckland District Law Society and the New Zealand Law Society. You therefore have rights as our client and these may be viewed on their websites at www.adls.org.nz and www.lawyers.org.nz.
New Zealand Law Society Information for Clients
Set out below is the information required by the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society ("Law Society").
1 Fees: The basis on which fees will be charged is set out in our letter of engagement. When payment of fees is to be made is set out in our Standard Terms of Engagement. We may 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 Professional Indemnity Insurance: We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the Law Society. We will provide you with particulars of the minimum standards upon request.
3 Lawyers' Fidelity Fund: The Law Society maintains the Lawyers' Fidelity Fund for the purpose of providing clients of lawyers with protection against pecuniary loss arising from theft by lawyers. The maximum amount payable by the Fidelity Fund by way of compensation to an individual claimant is limited to $100,000. Except in certain circumstances specified in the Lawyers and Conveyancers Act 2006, the Fidelity Fund does not cover a client for any loss relating to money that a lawyer is instructed to invest on behalf of the client.
4 Complaints:
We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly. If you have a complaint about our services or charges, you may refer your complaint to the person in our firm who has overall responsibility for your work. If you do not wish to refer your complaint to that person, or you are not satisfied with that person’s response to your complaint, you may refer your complaint to Mason Lockhart, Principal and Director of Lockhart Muir, who may be contacted by letter, by email at mason@lockhartlegal.co.nz or by telephone on (09) 365 1056.
The Law Society operates the Lawyers Complaints Service and you are able to make a complaint to that service. To do so, phone 0800 261 801 for information and advice about making a complaint.
5 Persons Responsible for the Work: The names and status of the person or persons who will have the general carriage of or overall responsibility for the services we provide for you are set out in our letter of engagement.
6 Client Care and Service: The Law Society client care and service information is set out below. Whatever legal services your lawyer is providing, he or she must:
- Act competently, in a timely way, and in accordance with instructions received and arrangements made.
- Protect and promote your interests and act for you free from compromising influences or loyalties.
- Discuss with you your objectives and how they should best be achieved.
- Provide you with information about the work to be done, who will do it and the way the services will be provided.
- Charge you a fee that is fair and reasonable and let you know how and when you will be billed.
- Give you clear information and advice.
- Protect your privacy and ensure appropriate confidentiality.
- Treat you fairly, respectfully and without discrimination.
- Keep you informed about the work being done and advise you when it is completed.
- Let you know how to make a complaint and deal with any complaint promptly and fairly.
The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers. Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.
If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.
7 Limitations on extent of our Obligations or Liability: Any limitations on the extent of our obligations to you or any limitation or exclusion of liability are set out in our letter of engagement.