Terms of Engagement
FURTHER TERMS AND CONDITIONS AND INFORMATION FOR CLIENTS
We provide this information to assist you to understand how our Firm works and to avoid miscommunication in any areas of our relationship. We strive to provide in-depth and practical legal advice and endeavour to present this in plain English and simple terms. Our focus is to achieve the best possible outcome for our clients, regardless of what type of advice is sought. You can be rest assured we are committed to looking after you in the best way possible.
- Fees and Payment Terms
- The fees which we will charge, or the manner in which they will be arrived at, are set out in this document.
- If a set fee has been specified, 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 in order to obtain your further instructions and if requested, provide you an estimate of the likely amount of the further costs.
- Where our fees are calculated on an hourly basis, the hourly rates are set out in this document. The differences in those rates reflect the experience and specialisation of our professional staff. Time is recorded in six minute units, rounded up to the next unit of six minutes. We reserve the right to review our hourly rates at any time.
- Pursuant to the guidelines laid down by the New Zealand Law Society, we reserve the right to take additional factors into consideration when calculating fees including the requirement for specialised knowledge and expertise; the urgency of the matter and circumstances imposed; the degree of risk assumed and the complexity of the matter.
- Disbursements and Expenses: In providing services we may incur disbursements or 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. Expenses include such things as a file opening and storage fee, toll calls and faxes, photocopying, international payment administration fee and any payments we may have to make to third parties on your behalf. Disbursements include such things as property searches and registrations, filing fees, court charges, fees of agents, personal property securities register searches (PPSR), experts and other professionals, travel and accommodation costs), storage recovery fees.
For out of town travel costs these will be charged on a pro rata basis depending on the number of client attendances. These will be included in our invoice to you when the expense is incurred. Should the matter prove to be voluminous, we reserve the right to charge for each new physical file created.
- GST is payable by you on our fees and charges.
- We may send interim invoices monthly and on completion of the matter, or upon termination of our engagement. We may also send you an invoice when we incur a significant expense.
- In accordance with paragraph 14, archived files are stored off site by The Information Management Group (TIMG). There is a fee to retrieve files. If you request the uplift of your archived file then the fee will be payable by you. Payment will be requested in advance.
- We may hold funds in our trust account on your behalf or we may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. You authorise us:
- To debit against amounts pre-paid by you; and
- To deduct from any funds held on your behalf in our trust account, any fees, GST, expenses or disbursements for which we have provided an invoice.
- 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, you remain responsible for payment to us if the third party fails to pay us.
- All accounts are payable within fourteen days of the date of the invoice, with the exception of invoices relating to final settlement of conveyancing or relationship property transactions. We require all funds to settle a conveyancing or relationship property transaction (including our fees and any anticipated fees) in cleared funds by the settlement date. We reserve the right to delay settlement of such transactions should payment of the sums specified herein not be paid in cleared funds by the settlement date and you may then be liable for any late settlement penalties applicable under the terms of the sale and purchase or relationship property agreement.
- Taxation: In respect of conveyancing transactions we may be contacted by IRD and/or LINZ months after the settlement date querying the IRD numbers provided by you. We will need to answer those queries and will invoice you actual costs for the work involved. This may involve obtaining a new tax statement from you. You agree to pay any such account when and if rendered by us.
- All overdue accounts will incur interest at the rate of 2.5 percent per month and should it be necessary to take enforcement steps to recover outstanding accounts (either by way of legal proceedings or by referral to a debt collection agency) then such recovery and enforcement costs will be added to your account, including actual solicitor/client costs.
- We reserve the right to cease acting for you where accounts are not paid in accordance with these terms.
- If you are unable to comply with our terms of payment you must enter into a payment arrangement prior to the commencement of work.
- Legally Aided Clients
- If you are making an application for Legal Aid you must pay a $50 user charge immediately upon engaging our services (or at such other time as agreed in writing). If your application is granted the $50 will be applied towards the total cost of services provided in accordance with the provisions of the Legal Services Amendment Act 2013. If your application is declined, then the $50 will be applied toward any fee owed to us in terms of the provisions set out in this document.
- Section 18A(3)(a) of the Legal Services Amendment Act 2013 states that I may decline to provide any services under a grant of legal aid until the user charge is paid. I require payment of the $50 user charge in full before undertaking any further work on your behalf.
- An application has been or will be made to the Ministry of Justice for a grant of legal aid on your behalf.
- The Ministry will tell us and you in writing whether legal aid is granted and the amount of legal aid that is approved.
- If legal aid is granted, we will invoice the Ministry of justice for the work we do for you on this matter.
- You may have to repay some of your legal aid to the Ministry of Justice, depending on how much you earn, what property you own, how much your case costs, and on how much money you win from your case (if applicable). The Ministry will tell you the maximum amount of any legal aid you may have to repay when it tells you if you have been granted legal aid
- The Ministry uses the financial information you give on your legal aid application form to work out whether you have to pay anything.
- You must inform us or the Ministry of Justice immediately if your financial circumstances change.
- If legal aid is not granted, you will be responsible for our fees.
- Verifying your Identity/Credit Checks
We are required by law to verify your identity. We may carry out reasonable identity and credit checks on you. You authorise anyone we contact to provide us with information we request as part of our identity and/or credit enquiries. You acknowledge and agree that we may provide information to credit agencies about any invoice you have failed to pay by the due date.
- 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.
- 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 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.
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 one of the Firm’s Directors, Margot Harkness, Jane Duncan or Tracy Sawtell. They may be contacted by letter, telephone or email (firstname.lastname@example.org).
The New Zealand 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.
- Responsible for the Work
You will be advised of the person who will have general carriage of or overall responsibility for the services we provide for you. From time to time you may be contacted by an assistant. Any work carried out by a Legal Executive is carried out as an authorised representative of Stevens Orchard Lawyers Limited.
- 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; and
- 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 Lawyers and Conveyancers Act Rules. Those obligations are subject to other overriding duties, including duties to the courts and the justice system. If you have any questions, please visit www.lawyers.org.nz or contact your local branch of the New Zealand Law Society.
- 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 this document or our letter of engagement.
- Your Obligations
- You must provide us with full, complete and honest instructions.
- You accept liability to pay all accounts as they fall due that we render for work undertaken, together with all disbursements and expenses arising from your instructions.
FATCA/CRS TAX INFORMATION
- If you are a US citizen or resident or have an interest in a non-US entity, you authorise us to disclose FATCA information to our bank or Inland Revenue Department when money is placed on interest bearing deposit. You agree to complete a self-declaration form.
- If you are a citizen or resident of any other country other than NZ then you authorise us to disclose CRS (OECD common reporting standard) information to our bank or Inland Revenue Department when money is placed on interest bearing deposit in accordance with clause 11 below. You agree to complete a self-declaration form.
- Our bank will not allow us to place funds on interest bearing deposit unless these forms are completed.
- You agree to provide us with information we request to comply with the AML/CFT Act as soon as possible;
- You understand that we may not be able to start work for you unless you provide us with that information;
- You agree to pay the AML/CFT office fee (‘Onboarding fee’) and we reserve the right to charge costs based on a time recorded basis for AML/CFT due diligence in addition to the onboarding fee.
- Trust Account
- All monies received from you or on your behalf will be held in our trust account under your name. Any payment made from funds held on your behalf will be made to you or to a third party with your authority.
- Stevens Orchard Lawyers Limited trust account is maintained up to date at all times and a statement of trust account transactions will be provided at any time upon your request.
- Where appropriate, funds held on your behalf in our trust account will be placed in an interest-bearing deposit with a trading bank registered under section 69 of the Reserve Bank Act 1989. Funds may also be placed on term deposit and in this instance your written authority and instructions are required.
- It is acknowledged that funds invested on an on-call basis are likely to earn interest at a lesser rate than what could be obtained from a term deposit.
- Interest earned from on call deposits, less withholding tax will be credited to your account.
You authorise us to deduct commission at the rate of 5% of the interest earned.
- Monies held in our trust account and not placed on call or term deposit will not earn interest.
- 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.
- 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. We will of course, not disclose to you confidential information which we have in relation to any other client.
You may terminate our retainer at any time. We may terminate our retainer in any of the circumstances set out in the Law Society’s Rules. 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.
- Retention of Files and Documents
You authorise us (without further reference to you):
- To retain your files and documents in paper and an electronic format if required; and
- To destroy all files and documents for this matter (other than any documents we hold in safe custody for you) seven years (or ten years if an e-dealing transaction) or earlier if we have converted to electronic format.
- 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.
- Duty of Care
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.
Definition of politically exposed person (“ PEP”)
PEP’s are individuals who are or have been, at any time in the last 12 months, entrusted with prominent public functions in a foreign country, e.g. heads of state or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations, important political party officials. Immediate family members of PEP’s (spouse, partner, child, parent) or close associates (those sharing ownership of a legal entity or arrangement) are also considered to be PEP’s.
These terms and conditions of engagement apply to your current instructions for our services and also to any future instructions. If we do not hear otherwise and you continue to instruct us, you are deemed to have accepted all of the above terms and we will proceed accordingly.
Please contact us immediately if you do not wish us to proceed or continue acting on your behalf. Unless we receive notice in writing of your termination of our retainer we will continue to act on your behalf and you may incur further fees.
We reserve the right to amend or change our terms and conditions of engagement and if so we will send you an updated copy.
Why we need to ask you for information
New Zealand has passed a law called the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (“the AML/CFT law” for short). The purpose of the law reflects New Zealand’s commitment to the international initiative to counter the impact that criminal activity has on people and economies within the global community.
Recent changes to the AML/CFT Act mean that from 1 July 2018 lawyers must comply with its requirements. Lawyers must do a number of things to help combat money laundering and terrorist financing, and to help Police bring the criminals who do it to justice. The AML/CFT law does this because the services law firms and other professionals other may be attractive to those involved in criminal activity.
The law says that law firms and other professionals must assess the risk they may face from the actions of money launderers and people who finance terrorism and must identify potentially suspicious activity.
To make that assessment, lawyers must obtain and verify information from prospective and existing clients about a range of things. This is part of what the AML/CFT law calls “customer due diligence”.
CUSTOMER DUE DILIGENCE REQUIREMENTS
Customer due diligence requires a law firm to undertake certain background checks before providing services to clients or customers. Lawyers must take reasonable steps to make sure the information they receive from clients is correct, and so they need to ask for documents that show this.
We will need to obtain and verify certain information from you to meet these legal requirements. This information includes:
- your full name; and
- your date of birth; and
- your address.
To confirm these details, documents such as your driver’s licence or your birth certificate, and documents that show your address – such as a current bank statement – will be required.
If you are seeing us about company or trust business, we will need information about the company or trust including the people associated with it (such as directors and shareholders, trustees and beneficiaries).
We may also need to ask you for further information. We will need to ask you about the nature and purpose of the proposed work you are asking us to do for you. Information confirming the source of funds for a transaction may also be necessary to meet the legal requirements.
IF YOU CANNOT PROVIDE THE REQUIRED INFORMATION
If we are not able to obtain the required information from you, it is likely we will not be able to act for you. Because the law applies to everyone, we need to ask for the information even if you have been a client of ours for a long time.
Before we start working for you, we will let you know what information we need, and what documents you need to show us and let us photocopy.
Please contact the lawyer who will be undertaking you work if you have any queries or concerns.
WHAT WILL IT COST YOU?
Compliance with AML/CFT Act has been a huge change to our practise and comes with a requirement to report to a Government agency which we have never had before.
Because we have additional compliance in accordance with the AML/CFT Act which includes running a due diligence program, checking compliance, annual reports to the DIA and 2 yearly audits we have additional costs to cover to run our CDD program which we reluctantly have to pass on. The cost we charge is what we think is fair and is based on your risk assessment (which can change). We will advise you what that cost is likely to be.