Client Information

Information for Clients
Terms of Engagement

 

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").

Fees:

The basis on which fees will be charged is set out in our letter of engagement and Standard Terms of Engagement. The timing for payment of fees 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.

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 $100,000.00.  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 a client.

Complaints:

We maintain a procedure for handling any complaints by clients, designed to ensure that complaints are 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 Brent O'Callahan, Managing Partner: -

He may be contacted as follows:

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 at:

2-8 Chancery Street
PO Box 58
Auckland

Ph: (09) 303 5270
Fax: (09) 309 3726

or telephone 0800 261 801 and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.

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.

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 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.lawyers.org.nz or call (04) 472 7837.

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 or in our Standard Terms of Engagement.

 

 

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.

Services

The services which we are to provide for you are outlined in our engagement letter.

The extent of our services is limited to the specific matter on which our advice is sought and in particular we are not advising on commercial aspects or taxation matters unless you specifically request us to.

Financial

Fees:  subject to any specific arrangement agreed with you (and set out in our engagement letter) fees will be charged on a time incurred basis at the particular author's hourly rate.  Factors that will also be taken into account in determining the final fee for the work (and the reasonableness of that fee) include:

  • the time and labour expended;
  • the skill, specialised knowledge, and responsibility required to perform the services properly;
  • the importance of the matter to you and the results achieved;
  • the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you;
  • the degree of risk assumed in undertaking services, including the amount or value involved in the agreement;
  • 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 this work may preclude engagement by us for other clients;
  • whether the fee is fixed or conditional (if there is any fee agreement entered between us in that regard);
  • any estimate of fees given;
  • the reasonable costs of running our practice;
  • the fees customarily charged in the Auckland market for similar legal services.

If our engagement letter specifies a fixed fee, we will charge this for the agreed scope of our services.  Work which falls outside the 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.

Where our fees are calculated on an hourly basis, the hourly rates are on the basis of the particular author's charge out rate (which is available upon request).  Any differences in hourly rates will 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.

Disbursements and expenses: 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 any disbursements or expenses which we are likely to incur on your behalf.

GST (if any): is payable by you on our fees, disbursements and expenses.

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.

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 15% per annum (or such other higher rate, if stated on any invoices sent to you).

Security and Deduction: 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, expenses or disbursements for which we have provided an invoice; and
  • to retain funds held on your behalf until proper arrangements have been made for payment of our fees to complete our services.

If any invoice is not paid by due date, we may choose not to do any further work for you and to retain your files and other documents and deeds until such time as all outstanding monies are paid to us.

Other action to recover unpaid fees and interest accrued thereon, including without limitation, reference to debt collection agencies and the commencement of proceedings, may also be taken against you and you hereby agree that the actual cost of such recovery will be added to the amount due by you.

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.

Services of Other Consultants: where it is necessary for us to engage the services of other consultants on your behalf to provide specialist advice or services, including instructing a barrister and/or experts, we will discuss the terms of any consultant's engagement with you. In general we will require payment of any consultant's or expert's fees prior to our instructing them.

Confidentiality

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 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.

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.

Termination

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 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 plus all reasonable costs incurred as a result of such termination (e.g. copying and/or sending documents or files to any other solicitor/counsel or any costs associated with filing or applying to a Court or any competent body to notify change of your representation).

Retention of files and documents

You authorise us (without further reference to you) to destroy all files and documents (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.

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 of Conduct and Client Care for Lawyers.

Duty of Care

Subject to any overriding obligations we ouw to the Courts and to the justice system, 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.

Electronic Communications

Unless otherwise agreed with you, we may communicate with you and others by email.  We do not accept responsibility and will not be liable for any damage or loss caused to you or your system by any such transmission, or any interference, interception, virus, other defect, delay or non-delivery relating to such a transmission.

Copyright

We retain ownership of copyright and all other intellectual property rights in the papers and documents that we produce for you in the course of carrying out our engagement.  However, you will be entitled to use the documents for the purposes for which they were produced as our licensee subject to payment of our fees.

Trust Account

We maintain a trust account for all funds which we receive from clients (except monies received for payments 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 6% of the gross interest derived.

Our trust account is held with ASB Bank Limited ("ASB") a subsidiary of the Commonwealth Bank of Australia, and your funds, when held in our trust account, are held by ASB on your behalf.  You agree that if, through no fault of ours, your funds cannot be repaid you will not have a claim against us, including any situation where a third party makes a claim on those funds which prevents us being able to pay them to you.

Guarantees

In the event of our Letter of Engagement requiring personal guarantees of a client company or other entity or individual, the named guarantors (jointly and severally if more than one) agree to be liable for our fees as principal debtor and we may seek recovery of all fees owing to us by the client together with all interest accrued thereon and costs of recovery.

Where services are provided to a company that is closely held (i.e. less than five shareholders which are not themselves a company (other than a closely held company)) then the directors/principal shareholders of the company (including trustees of any family trust that hold shares in the company) will be personally liable for our fees, disbursements and any costs of recovery.

Limitation of Liability

Except where the clause below applies, our liability to you is limited to the greater of $1 million or 3x the fees charged to you (excluding GST and disbursements).

Where our professional indemnity policy of insurance responds to any claim then our liability is limited to the limit of cover under that policy (inclusive of all costs associated with such claim (both to you and our own costs)).  Currently our policy limited is $20 million.

General

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 and/or notify you when updated terms are available to be viewed on our website at www.carterslaw.co.nz.

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