Terms of Engagement & Information for Clients
These terms and conditions of engagement set out the terms which apply when you instruct us to act for you. These terms may be changed by agreement between us or superseded by replacement terms in the future. These terms include the information required by the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society (‘Law Society”). These terms apply to all our work and also contain important information. They also change from time to time. We maintain up to date copies on our website. The terms should be read alongside any engagement letter that we may send to you.
Client care and service
The services which we are to provide for you are outlined in our engagement letter. We will work with you to find the solution that best meets your needs in accordance with the highest professional standards (subject to any legal or ethical duties we have) and in a manner which is cost effective and seeks to add value to you. When we are providing legal services for you, we will:
- 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 generally 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. Additional or particular limitations on the extent of our obligations to you and limitations or exclusions of liability may also be set out in our communications to you. If you have any questions or need any more information about the Rules please visit the New Zealand Law Society website www.lawsociety.org.nz or call their national office on 04 472 7837.
Duty of care
Our duty of care is to you and not to any other person or organisation, and our advice is provided to you only. Before any other person or organisation may rely on our advice, we must expressly agree to that. This also applies to any public use.
Related persons and parties
These terms and conditions apply to our dealings with you and also with any related persons, companies and trusts with which you are involved or connected or on whose behalf you provide instructions. They will apply to those other persons or entities whether or not separate standard terms of engagement have been expressly issued to them. Persons giving instructions will always be responsible for payment of fees and costs whether or not it is for themselves directly or their companies or trusts or other entities, which will also be liable. Where funds are received or held by us for you and/or anyone of your related parties, they may also be used to meet any payments due to us from you or any other related party.
We communicate, both with our clients and with third parties, by way of post, email, facsimile, telephone, by delivery, and also by our website. A copy of our terms of engagement and information for clients is on our website and changes will be shown there. Important communications to us should always be made in writing, by post, email, facsimile or delivery. For contact by telephone, please use our main telephone number or DDI number, if available, and leave a message, if necessary, with reception or another staff member. Voice or text messages to mobile phones may not be regularly received or monitored and should not be relied on. We have the option of recording our conversations.
We may from time to time, send communications to you concerning various matters including current topics, articles of interest or information on the services we offer. Generally, will send these via Mailchimp. If you do not wish to receive communications via this medium, please let us know and we will remove you from our mailing list.
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 Rules.
We hold information in confidence in accordance with professional requirements as well as in accordance with the requirements of the Privacy Act and subject to general legal requirements. By instructing us you authorise us to make disclosure to competent authorities where we deem this necessary or desirable at our discretion.
We may collect and hold personal information concerning you. Information concerning you will be used by us to provide legal services, to obtain credit or other references, to undertake credit management, and to inform you of issues and developments that may be of interest to you. You authorise us to obtain from any person or release to any person any information necessary under these terms of engagement, in carrying out services for you and otherwise as we are required to in law. You authorise any person to release information to us that we require for those purposes. If you fail to provide us with information this may preclude us from providing services to you or limit the quality of the services provided.
As solicitors, we are designated as reporting entities under the Anti-Money Laundering and Countering Financing of Terrorism Act. These laws require all lawyers to complete Customer Due Diligence (“CDD”) for both new and existing clients. There are other obligations which may also arise from time to time regarding proof of identity including, in some cases, verifying the source of funds for a transaction. Occasionally we will verify your identity using one or more electronic verification (EV) tools which may include biometric checks, Australian and New Zealand data sources, and global watchlists. You consent to these and you authorise us to perform EV checks as and when we require.
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 in the first instance to Alistair van Schalkwyk who may be contacted as follows:
- by letter ASCO Legal Ltd, PO Box 38173 Howick 2145
- by email at [email protected]
- by telephone on 09 308 8071
The Law Society also maintains a complaints service and you are able to make a complaint to that service. To do so you should contact the Law Society. To do so, phone 0800 261 801 and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.
Professional indemnity insurance
We hold professional indemnity insurance that meets or exceeds the minimum standards presently specified by the Law Society. We will provide you with particulars of the minimum standards upon request.
Lawyers Fidelity fund
The Law Society maintains the Lawyers’ Fidelity Fund for the purposes of providing clients of lawyers with protection against pecuniary loss arising from theft by lawyers. The maximum amount payable by the Fidelity Fund by the way of compensation to an individual claimant is limited to $100,000. Except in certain circumstances specified in the Lawyers & 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.
Persons responsible for the work
Work is carried out across all of our team members, according to their respective skills, expertise and other factors as detailed. The work is allocated according to the requirements of each of our clients in relation to their work, the work type and other factors including urgency, complexity, specific knowledge, skills, expertise and other relevant factors. Input at different levels from more than one person is generally involved and changes can occur from time to time particularly in relation to different fields of work. We reserve the right at all times, and from time to time, to change the allocation from one team member to another at our discretion.
Calculation of our fees
The basis on which fees will be charged and when payment is to be made is set out in these terms of engagement. It is important that you understand the basis on which we calculate our fees. Each staff member who works on your file has a different charge out rate depending on their level of expertise or experience. Currently, our charge out rates range from between $300 - $400 per hour (which rates may also change from time-to-time) plus GST. If you wish to know relevant charge out rates at any time, please ask.
We also take into account the following factors in determining the reasonableness of a fee in respect of any service provided by a lawyer to a client:
- the time and labour expended.
- the skill, specialised knowledge, and responsibility required to perform the services property.
- the importance of the matter to the client and the results achieved.
- the urgency and circumstances in which the matter is undertaken, and any time limitations imposed, including those imposed by the client.
- the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved.
- the complexity of the matter and the difficulty or novelty of the questions involved.
- the experience, reputation, and ability of the lawyer.
- the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients.
- whether the fee is fixed or conditional (whether in litigation or otherwise).
- any quote or estimate of fees given by the lawyer.
- any fee agreement (including a conditional fee agreement) entered into between the lawyer and client.
- the reasonable costs of running a practice.
- the fee customarily charged in the market and locality for similar legal services.
In addition to our fees you will be billed for any disbursements which we incur on your behalf, for instance, search fees, registration fees and delivery charges. If you have agreed that outside experts such as counsel (barristers) or other experts or specialists are instructed then you must pay to us the fees incurred in respect of them immediately when payment is required, where relevant.
Where it is likely that large disbursements will be incurred, we will ask you for payment in advance on account for those disbursements. We will obtain your prior authorisation before incurring any substantial disbursements on your behalf.
In addition to disbursements, we may levy additional charges to recover out of pocket costs which are not included in our fee as well as for our time in carrying out administrative tasks or to comply with professional and legislative obligations associated with the provision of our services to you, these include:
- Office services charge to cover items such as photocopying and printing, postage and phone calls and data costs. Generally, we charge $90 + GST (or 10% of our invoice whichever is the higher).
- AML charge as mentioned above and as necessary to cover our compliance with our obligations under the Anti-money laundering and Countering Financing of Terrorism Act. The base charge for this is $90.00 plus GST per person, but this may be depending on if there are overseas persons or complex structures such as a trust and/or companies involved.
- Tax statement and OIA declaration charge to cover our time in preparing attending on completing and providing Land Information New Zealand with information in relation to the party associated with the transfer of a property as well as completing and attending on a statutory declaration confirming that you are a New Zealand Citizen or resident. Generally, our charge is $200.
- GST (if any): is payable by you on our fees and charges except where zero rated or exempt.
Trust account We maintain a trust account for all client funds which we receive. If we are holding significant funds on your behalf, we will normally lodge those funds on interest-bearing deposit with a bank. We may charge a fee of 5% of the interest earned. This is to cover the administrative cost of investing those monies for and reporting to you.
Accounts and payment
Generally, we will provide you with an invoice after the end of periods for ongoing matters where there has been significant work done, and also do so on completion of that matter. Payment is required within 14 days if funds are not held, and where there is a legal settlement involved, is to be made at settlement (in addition to interim payments for longer running matters). We reserve the right in all cases to deduct fees, GST and disbursements from monies held or received. We may deduct from any funds held or received on your behalf in our trust account any fees, expenses or disbursement for which we have provided an invoice, and we may suspend or discontinue work altogether for you on any matter if payments are outstanding.
Action for non-payment
If an amount remains outstanding after 21 days, then we reserve the right to charge interest at a rate of 15% per annum calculated daily on all amounts due. In addition, we may withhold your files and documents until all accounts are fully paid, start proceedings to recover the amounts owed together with any collection costs involved, and cease to do current work or undertake any further work for you or for related parties. If you have any problems with payment, please contact us as soon as possible and we will attempt to find a solution that works for both of us.
Although you may expect to be reimbursed by a third party for fees and expenses incurred, and although our invoices may at your request or with your approval be directed to a third party, nevertheless you remain responsible at all times for timely payment to us, whether or not the third party pays.
Payment in advance
In some circumstances, we may ask for payment in advance on account of our fees and disbursements. This payment will be retained in our trust account and will be used to pay fees and disbursements as soon as these are due.
For property and financing transactions where payment of moneys is due by you, we require cleared funds for the correct amount to be deposited with us no later than the morning of the settlement and proof of deposit must be supplied.
We may ask you to provide security for fees and expenses, including payments we may need to make on your behalf to third parties.
It is often very difficult to estimate our fees for our legal services in relation to a particular matter. This is because there are always a number of variables which are unknown. Circumstances may also occur once an instruction is received resulting in more work than originally anticipated. Matters may also depend on the actions of third parties which are outside our control. Where possible we are happy to give an estimate, however, this is a guide only and is not a fixed quotation. Often during a matter, you may find that you require additional work to be done beyond what was included in the estimate. If additional work should be required, then there will be additional charges for that. We are happy to work with you to help you to minimise costs on particular matters.
You may terminate our engagement at any time. We may terminate our engagement if:
- A conflict of interest arises.
- Your instructions require us to breach any professional obligation.
- You are unable or otherwise fail to pay our fees when due.
- You mislead or deceive us in a material respect.
- You fail to provide instructions to us in a sufficiently timely way.
- Except for litigation matters, you adopt a course of action, against our advice, which we believe is highly imprudent and may be inconsistent with our fundamental professional obligations.
- Any other reason exists or arises which represents “good cause” to terminate our engagement pursuant to the Rules.
Subject to the Rules and the law, if our engagement is terminated, we may also choose to retain your files until all fees are paid.
Retention of files and documents
We normally retain files and documents for 7 years. You authorise us by these terms (and without further reference to you) to destroy all files and documents after 7 years (except the contents of any specific types of Deed, for example, current wills, and trust deeds which we may either continue to keep in safe custody for you or return to you). Hard copies of any items which are also stored electronically may also be destroyed earlier.
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Please let us know if you have any questions about these terms of engagement or any of our services. You can contact us here.