STANDARD TERMS & CLIENT CARE

(Effective as of 1 March 2017)

These Terms (“Terms”) set out the basis on which you engage us to accept and act on your instructions.

The Terms:

  • form the basis of our professional relationship with you and apply in respect of all work carried out by us for you, except to the extent that we otherwise agree with you in writing;
  • apply to any current instructions, and to any future instruction whether or not we send you another copy of them.

There is no need for you to sign these Terms in order to accept them; you will accept these Terms by continuing to instruct us to work for you.

We may change these Terms.  If we do so we will notify you of any major changes.  These Terms are not affected by any change to our partnership, including incorporation, merger or sale.

For each new project we do for you, we will give you a “letter of engagement”.  The letter/email will outline:

  • what we will do for you on that project; and
  • the partner with overall responsibility for that project. Other members of our staff may also be involved, under that partner’s supervision, where appropriate.  If we do not advise you in writing, then the person with overall responsibility will be the person you have instructed to do that project.

Before we accept a project from you, we will do our best to find out if any conflict of interest exists.

If we find a conflict at any time, we will immediately let you know and tell you how we plan to deal with the conflict.  That may mean we stop working for you, the other client or both.

All fees we charge are based on criteria approved by the New Zealand Law Society which require us to charge a fee that is fair and reasonable for the services provided having regard to your interests and our interests. The factors to be taken into account include time spent on the matter, skill and knowledge required, importance to you and the results achieved, urgency (including time limitations imposed by you) value of property and risk, complexity and difficulty and our experience and reputation.

If our engagement letter/email specifies an estimated fee, we will do our best to keep our costs within the estimate based on the agreed scope of our services.  We will advise you as soon as reasonably practicable if it becomes necessary for us to increase our costs estimate which will most likely be if we have to provide services outside the scope of work on which our estimate was based.  Any estimate will be a guide only based on our experience of similar matters and not a fixed quote.

For a variety of reasons, some matters cannot be completed.  If this occurs, we will charge you for the work undertaken and costs incurred up to the time of termination.

Unless we state otherwise, our fees, estimates and hourly rates do not include GST or disbursements, which are payable by you.

Disbursements are our out-of-pocket expenses and include registration and filing costs, court charges, legal agents costs, courier fees, etc. Disbursements will be charged at actual cost or our best estimate of actual cost.

Where we refer you to other professionals or barristers we may be liable for their charges. If that is the case we will invoice you for their charges.

We will either bill you at the completion of the work or we will interim bill you on a monthly basis.

We reserve the right to ask for payments in advance or on account of anticipated project costs.  We are not obligated to commence any work until such payment is made, and are not liable for the consequences of non-payment.

Payment is due on the 20th of the month following the date of our bill.  Disbursements are to be paid immediately we request them.  We may invoice these in advance.

If you have any questions about an account or anticipate difficulties in paying our account, please contact us straight away.

Interest and recovery costs – We may charge interest on unpaid accounts at the rate of 12% per annum calculated on a daily basis and charged monthly.  We may take action to recover unpaid accounts and charge you the cost of that recovery.

Authority to deduct – You authorise us to debit against amounts pre-paid by you or 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.

You are ultimately responsible for our costs – Although you may expect to be reimbursed by a third party (such as a tenant) 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.

If you are instructing us on behalf of another party under your effective control (eg as a Director or Shareholder of a Company or as a Settlor or a Trustee of a Trust or Executor or Administrator of an Estate) then you will be personally liable (together with the Company, Trust, Estate or other party) to pay our fees and disbursements unless we agree otherwise.

If you are a company or other incorporated or unincorporated entity, the entity will be liable for our fees and disbursements.  We may request a personal guarantee in some circumstances.  Please note that in acting for such an entity we will not be taken to be acting for the entity’s directors, shareholders or members unless we agree otherwise in writing.

Before commencing or doing work we may carry out credit checks on you.  By instructing us, you authorise us to collect credit information about you and authorise any other persons to provide us with such information.  We may provide information to credit agencies about any account you have failed to pay by the due date.

For property and financing transactions where payment of monies is due by you, we require cleared funds for the correct amount to be deposited with us no later than the morning of settlement.  In practice cleared funds will usually mean a bank cheque or confirmed clear funds banked to our trust account electronically.  A personal cheque will not be an acceptable method of payment.

You may end our engagement by giving us reasonable notice.  Our fees for services reasonably and properly provided to you prior to termination must be paid before we will release your files and records to you or another firm. We may keep a copy of any records you take and charge for making those copies.

Your instructions to us on any matter will be deemed to have ended at the conclusion of our work for you pursuant to that instruction, or where there has been no response from you within 60 days of our asking you (in writing) for instructions.

We may end our engagement in any circumstances as set out in the New Zealand Law Society’s Rules of Conduct and Client Care for lawyers.

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 to the extent necessary or desirable to enable us to carry out your instructions or to the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers. 

We are required to comply with all laws binding on us in all applicable jurisdictions, including:

  • The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act); and
  • The United States Foreign Account Tax Compliance Act, the intergovernmental agreement between the United States and New Zealand relating to it, and relevant provisions of the Tax Administration Act 1994 (together “FATCA”)

We will perform client due diligence and account monitoring, keep records, and report any unusual or suspicious transactions where required by the AML/CFT Act, FATCA, or any other law.

We may also be required to assist any bank or other entity with whom we transact as your agent, or with whom we deposit money on trust for you, to comply with that entity’s legal obligations in any jurisdiction.  We reserve the right to pass on any additional costs that are required to comply with these laws.

We will periodically advise you what information and documents are required for these purposes.  These may relate to you, any other relevant person (eg any beneficial owner), the source of funds, the transaction, the ownership structure, tax identification details, and any other relevant matter.  Please provide the information and documents promptly.  We may retain the information and documents, provide them to a bank or other entity (where applicable) to deal with in accordance with their terms, and disclose them to any law enforcement or regulatory agency or court as required by law.

We or the bank or other entity (as the case may be) may:

  • suspend, terminate, or refuse to enter into a business relationship;
  • delay, block, or refuse to process a transaction (including by refusing to handle and deposit money on trust for you); and
  • report a transaction,

without notice if:

  • the required information or documents are not provided; or
  • it is suspected that the business relationship or transaction is unusual, may breach any applicable law, or may otherwise relate to conduct that is illegal or unlawful in any country.

Personal information held by us is able to be corrected by you in terms of the Privacy Act 1993.

We may also use your personal information to keep you informed about legal developments, other legal services, or seminars we offer.  Please let us know if you do not want your personal information used for this purpose.

We may convert and store copies of any communication between you and us, or any document provided to us or drafted by us, in an electronic or photographic format.

We may convert hardcopy files, documents and records to an electronic or photographic format in which case the hardcopies will be confidentially destroyed.  We are not obligated to hold files, documents and records (other than any documents that we hold in safe custody for you) beyond seven years from when our engagement ends and we reserve the right to destroy and/or delete both physical and electronic/photographic files, documents and records after this time.

By instructing us you authorise us to deal with our files and documents relating to work we do for you in this manner.

We cannot accept for safe custody money, negotiable instruments, bearer bonds or coupons, stamps or currency notes, as insurance cover is not available for such items. If you do ask us to store such items for you it will be on the basis that we cannot accept any risk in respect of them.

We do not give and accept no liability for “investment advice”.

If we are holding significant funds on your behalf we will normally lodge those funds on interest bearing deposit on call so that you get the benefit of the interest earned.

Alternatively, after discussion with us, you may decide to instruct us to place the funds on term deposit through our trust account. In that case we are required to make certain disclosures under the terms of the Investment Advisers (Disclosure) Act 1996 and Solicitors Trust Account Rules.

In either case our administration fee is 5% of the interest earned.

If you have a complaint please discuss it with the person doing the work. If you are still not satisfied you can discuss it with our Client Satisfaction Manager. In the event that you are not happy with the outcome you have the right to take the matter up with the New Zealand Law Society which runs a complaints service.

Where applicable you may wish to apply for legal aid. If legal aid is granted our hourly rate will be disclosed to you at the time we make the application. In the event that legal aid is not granted you will be liable for our account at the hourly rate disclosed to you.

Health and Safety legislation obliges us to ensure the safety of our staff. We agree to be mutually responsible with you when our staff visit your premises to ensure their safety and see no harm is caused to them. We will expect you to ensure that our staff are made aware of any hazards and the steps required to mitigate those.

We will usually communicate with you by email while acting for you.  Please let us know if you prefer us not to send you emails.  We have virus protection software and security protocols in place, however we cannot guarantee that electronic communications will always be free from viruses or other defects, are secure or will be received.  We do not accept responsibility (and will not be liable) for any damage or loss caused by an email that is intercepted or that has a defect.

If you choose to use a Cloud storage facility or platform such as Dropbox or OneDrive for sending us documents, we do not accept any liability for the security of the information sent and may decline to open attachments until we have checked with you that the communication is legitimate.

If you become aware that your email system has been compromised in any way you must let us know immediately so that we can agree on appropriate safeguards.

When you send us account information by email please do not be offended if we check that information with you personally as part of our security and verification procedure.

Our relationship with you is governed by New Zealand law and the New Zealand courts have non-exclusive jurisdiction.

We value our relationship with our clients.  If you have any questions about these Terms, please ask.

(See Standard Terms of Engagement for full details)

 

Basis of charging (amounts are exclusive of  GST): The basis on which fees will be charged and when payment of fees is to be made are set out in our Standard Terms and Conditions and the Addendum attached to those Terms.

 

Deduction of fees  

If we hold funds on your behalf or in the names of any related entities, you authorise us to deduct our fees from those funds (unless they have been provided for a particular purpose) and send you an invoice as required by the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.  We may require you to get the other persons with legal authority in a related entity (eg the other directors of a company) to give us written authority to deduct fees from funds held.

 

 

Insurance

 

We hold professional indemnity insurance which meets or exceeds the minimum standards set by the Law Society.

 

Lawyers’ Fidelity Fund coverage  

The Law Society maintains the Lawyers’ Fidelity Fund for the purpose of providing clients of lawyers with protection against loss arising from theft by lawyers.  The maximum amount for 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.

 

Keeping your records  

We will retain or dispose of your records in accordance with our Standard Terms and Conditions.  We will provide copies to you in accordance with our obligations under the Privacy Act 1993 on request. We may charge for the cost of providing records to you.

 

Law Society’s client care and service information  

The Law Society’s 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 in which 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.

 

Lawyers Complaints Service  

If you have a complaint about the services you have received from our firm please contact Julie Andrews, Practice Manager, phone (07)578-5033 or email julie@mackenzie-elvin.com

 

If we have been unable to resolve a complaint or concern you may contact:

The Lawyers Complaints Service

Phone: 0800 261 801

Website: www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form

Email: complaints@lawsociety.org.nz

 

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.

To View PDF format of Document Click Here: Standard Terms & Conditions 2017