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TERMS OF ENGAGEMENT
These are our standard Terms and Conditions of Business (“Terms”) which apply in respect of all work carried out by us except to the extent that we otherwise agree with you in writing. The Terms include information which we are required to provide under the Rules of Conduct and Client Care for Lawyers issued by the New Zealand Law Society in 2008. These Terms will apply whenever you ask us to act for you on a matter. You do not need to sign any formal documentation to indicate your acceptance. It will be assumed from your continuing to engage us.
1.SERVICES
1.1 We will represent and advise you on all legal matters (excluding advice relating to taxation matters unless otherwise agreed in writing) within the scope of your instructions.
1.2 We will usually record those instructions on a ‘Confirmation of Instruction’ report at the outset of a matter.
2.FINANCIAL
2.1 Our fees are based on what is fair and reasonable for the services provided having regard to:
(a) the interests of both us and you;
(b) the time and labour expended;
(c) the skill, specialised knowledge, and responsibility required to perform the services properly;
(d) the importance of the matter to you and the results achieved;
(e) the urgency and circumstances of which the matter is undertaken and any time limitations imposed, including those imposed by you;
(f) the degree of risk assumed by the lawyer in undertaking the services, including the amount in value of any property involved;
(g) the complexity of the matter and the difficulty and novelty of the questions involved;
(h) the experience, reputation, and the ability of the lawyer;
(i) the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients;
(j) whether the fee is fixed or conditional (whether in litigation or otherwise);
(k) any quote or estimate of fees given by us;
(l) any fee agreement entered into between you and us;
(m) the reasonable costs of running a practice;
(n) the fee customarily charged in the market locally for similar legal services.
2.2 Our estimates of the likely fees are based on our experience with similar matters. Estimates are given as a guide only and not as a fixed fee. We will give you regular updates as matters progress and knowledge of the actual scope becomes clearer.
2.3 In providing services we may incur disbursements or have to make payments to third parties on your behalf. 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.
2.4 GST is payable by you on our fees and charges.
2.5 We normally issue invoices monthly. We also send you an invoice on completion of the matter or termination of our engagement. We may also send you an invoice when we incur a significant expense.
2.6 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 seven days overdue. Interest will be calculated at the rate of 2% per month.
2.7 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.
2.8 You authorise us (without further reference to you) to obtain information about you from you or any other person (including any credit or debt collectors or law enforcement agencies), and you consent to any person providing us with that information. You agree that we may use any information we have about you relating to your credit-worthiness and give that information to any other person, including any credit or debt collective agency, for credit arrangements and debt collection purposes.
If you are a natural person, you have rights under the Privacy Act 1993 to access and request correction of any personal information about you.
3. CONFIDENTIALITY
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.
4. TERMINATION
4.1 You may terminate our retainer 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.
(a) The lawyer may terminate the retainer for good cause and after giving reasonable notice to the client specifying the grounds for termination.
(b) Good cause includes –
(i) instructions that require the lawyer to breach any professional obligations;
(ii) the inability or failure of the client to pay a fee on the agreed basis or, in the absence of an agreed basis, a reasonable fee at the appropriate time;
(iii) the client misleading or deceiving the lawyer in a material respect;
(iv) the client failing to provide instructions to the lawyer in a sufficiently timely way;
(v) except in litigation matters, the adoption by the client against the advice of the lawyer of a course of action that the lawyer believes is highly imprudent and may be inconsistent with the lawyer’s fundamental obligations.
4.3 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) 7 years after our engagement ends, or earlier if we have converted those files and documents to an electronic format.
6. CONFLICTS OF INTEREST
6.1 If a legal conflict of interest arises we will immediately advise you and discuss how to proceed.
6.2 We may accept instructions from other persons operating in the same or competing sectors and whose commercial or other non-legal interests conflict with your own, provided that we will not use confidential information we have obtained from you in undertaking those instructions.
7. PERSONS RESPONSIBLE FOR THE WORK
7.1 The person who will have overall responsibility for the work will send you a “Confirmation of Instruction” report prior to undertaking significant work under a retainer.
7.2 We will arrange for each part of your work to be undertaken by the person with the most appropriate level of skill and experience.
7.3 Background information on our people can be found on our website:
http://www.tompkinswake.co.nz/tw-staff-partners.html
8.DUTY OF CARE
8.1 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.
9. TRUST ACCOUNT
9.1 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 may charge an administration fee of 5% of the interest derived.
10. FOREIGN LAW MATTERS
10.1 We are only qualified to advise on New Zealand law. If we assist you in respect of matters governed by foreign law, we do so on the basis that we do not accept any responsibility in relation to your legal position under that foreign law.
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.
11.2 We are entitled to change these Terms from time to time, in which case the amended Terms will apply from the date they are published on our website.
11.3 Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.
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. 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.
2. 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 Conveyances 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.
3. 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 our CEO.
He may be contacted as follows:
· by letter;
· by email at rrowley@tomwake.co.nz
· by telephoning him at 07 838 6027
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 and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.
4. 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.
5.Limitation of Liability
Our liability to you will be subject to any limitations or exclusions which we agree with you.