Terms of Engagement

1.

The purpose of this document

1.1

This document:

 

sets out the standard terms on which we do work for our clients;

 

explains what you can expect from us and what you agree to when we work for you;

 

includes information we are required to tell you under the New Zealand Law Society's Rules of Conduct and Client Care for Lawyers; and

 

applies to any current work and to any future work we do for you (unless we agree in writing to change these terms).

1.2

We may change these terms.

 

 

 

2.

Our letter of engagement for each job

2.1

For each new job we do for you, we will give you a ‘letter of engagement’. The letter will outline:

 

• 

what we will do for you on that job; and

 

the person with overall responsibility for that job.  Other members of our staff may also be involved, under that person'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 job.

 

 

 

3.

Our duties to you

3.1

When we do work for you, we will:

 

protect your privacy and confidentiality;

 

act competently, promptly and according to your instructions;

 

protect and promote your interests

 

give you clear information and advice;

 

keep you informed about progress;

 

treat you fairly and respectfully; an

 

charge you a fee that is fair and reasonable,

 

subject to any overriding duties we have (eg to the courts and the justice system).

3.2

Our duties are owed to you, the client named in our letter of engagement.  Nobody else (such as family members, shareholders, directors or related companies) can rely on our advice without our written consent.

 

 

 

4.

Your privacy and confidentiality

4.1

We will treat all information we hold about you in strict confidence.  We will not use it or share it unless:

 

you agree or ask us to;

 

we need to so we can carry out work for you; or

 

the law requires us to, or the Rules of Conduct and Client Care for Lawyers permit us to. 

 

Please note that by instructing us to act for you we may be obliged to comply with the directions of third parties and that may impact on certain of the obligations owed to you.

 

 

 

5.

How we avoid conflicts of interest

5.1

When we do work for you, we will always protect and promote your interests.

5.2

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

5.3

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.

 

 

 

6.

Scope of our work

6.1

We are not qualified to give:

 

• 

investment advice. You should get that advice from a qualified financial advisor;

 

• 

accounting, financial or tax advice. You should get that advice from your accountant or tax advisor; or

 

• 

advice about foreign laws.  We can help you to contact a lawyer in the other country.

6.2

Unless we agree to do so in writing, we will not:

 

remind you about dates (eg PPSR, lease or consent expiry dates); or

 

update advice after it is given.

 

 

 

7.

Intellectual property

7.1

Unless we agree otherwise:

 

we retain ownership of all opinions, documents and other intellectual property created by us;

 

you must not provide our advice to others (such as using our opinions in any public document or statement).

 

 

 

8.

Emails

8.1

We may communicate with you by email about the work we do for you.

8.2

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.

8.3

We may occasionally email you information we feel is relevant and useful to you. If you do not want to receive that information, let us know.

8.4

Where we correspond with you using electronic communication (as defined in the Electronic Transactions Act 2002 ("the ETA")), the rules set out in the ETA will apply except that electronic communications sent to us will be deemed to be received at the time they come to our attention.

8.5

Electronic communication will be used unless you advise us to the contrary.

 

 

 

9.

Storing records

9.1

You authorise us to destroy all files and documents about a job ten years after that job has been completed.  We may destroy paper files or documents earlier if we have an electronic copy of them.  We will not destroy any documents we have agreed to hold in safe custody for you (such as Wills).

 

 

 

10.

How you can help us

10.1

You can help us by:

 

• 

giving us clear instructions;

 

• 

asking if there is anything you are not sure of;

 

• 

telling us if you have any important time limits;

 

• 

dealing promptly with any questions we have;

 

• 

telling us if your contact details change; and

 

keeping in touch.  Please ask if you are concerned about anything or do not hear from us when expected.

 

 

 

11.

Who we can accept instructions from

11.1

Unless you let us know otherwise (and subject to subclause 14.7 of these terms of engagement):

 

• 

if you are a company, we can accept instructions from any of your directors or employees or any other person you have authorised to instruct us;

 

• 

if you are a trust, we can accept instructions from any of your trustees or officers;

 

• 

if you are a partnership, we can accept instructions from any of your partners or officers;

 

if you are a couple, we can accept instructions from either of you.

 

 

 

12.

Verifying your identity / Credit checks

12.1

In some circumstances we are required by law to verify your identity.

12.2

We may carry out reasonable credit checks on you.  You authorise anyone we contact to provide us with information we request as part of our credit enquiries.

12.3

We may provide information to credit agencies about any account you have failed to pay by the due date.

 

 

 

13.

Our fees and expenses

 

Fees

13.1

We will always charge you fair and reasonable fees.

13.2

Unless we agree with you otherwise, our fees will be calculated based on the time we spend on a job charged at our hourly rates, and adjusted where appropriate for other factors permitted by the Rules of Conduct and Client Care for Lawyers (such as the complexity, urgency, importance, specialised knowledge, responsibility and risk involved and the results achieved).  We will provide you with our hourly rates on request.  Time is recorded in units of six minutes with time rounded up to the nearest unit of six minutes.

13.3

We will give you an estimate of fees if you ask for one.  Special fee arrangements may be available for certain work (eg capped fees).  Any estimate or special fee arrangement for a job will be outlined in our letter of engagement.

13.4

If we receive a request for information from your auditor or accountant, you authorise us to supply the requested information and you agree to pay us our usual fee for doing so.

13.5

If you have any questions about our fees please ask.

 

GST

13.6

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

 

Office Expenses

13.7

We charge you a fee to cover office expenses (such as photocopying, printing, phone calls, faxing and file storage).  This fee will be included separately in our account to you.

 

Disbursements

13.8

When we do work for you, we may have to cover some expenses or make other payments on your behalf (such as search fees, registration fees, travel costs, court charges and agents' fees). These will be included separately in our account to you.

 

Changes

13.9

Fees, hourly rates, office expenses and disbursements may change from time to time without notice.

 

Legal Aid

13.10

In some cases, you may be eligible for legal aid.  If you want to apply for legal aid, we may refer you to another firm as we do not carry out legal aid work.

 

 

 

14.

Money handling procedures

14.1

We maintain a trust account for all funds we hold on behalf of clients (except funds we receive for payment of accounts).

14.2

If we hold funds on your behalf we will deposit them in an interest-bearing deposit with a bank, where reasonable and practicable.  We are not responsible for obtaining the best interest rate available or for any loss of interest you suffer as a result of delay in placing your funds in an interest-bearing deposit.

14.3

We generally charge an administration fee of up to 6% on the gross interest earned on funds held in an interest-bearing deposit.

14.4

Withholding tax will be deducted on the interest earned and paid to IRD. If we have your IRD number you can elect to have withholding tax deducted at your applicable rate.  If we do not have your IRD number we are required to deduct it at the default rate (which may be higher than your actual rate).

14.5

Where you transfer funds to our trust account in a foreign currency, we will convert those funds into New Zealand dollars at the prevailing exchange rate offered by our bank.  We are not responsible for seeking or obtaining a better exchange rate.  Where you instruct that we transfer funds to a foreign country we will charge you any cost incurred by us in complying with your instructions.

14.6

You can pay your funds to us by direct credit or by cheque (including bank cheque) made payable to "Harkness Henry Trust Account."

14.7

All payments of funds, other than to you, will only be made with your prior written authority.  “Written authority” means a letter or fax signed by you and does not include an email.  In this context, “you” includes, without limitation:

 

a.

If you are a company, two directors (or one director, if the company only has one director);

 

b.

If you are a trust, all trustees;

 

c.

If you are a partnership, all partners;

 

d.

If you are a couple, both of you.

14.8

If your payment to us is not made in cleared funds (for example, if you pay us by personal cheque) then we may wait until the funds have cleared before disbursing the funds in accordance with your instructions.

14.9

If we receive funds for you, we will (subject to any other obligations we have) pay them to you once we are satisfied that those funds have been cleared through the banking system.  This may mean that if funds are paid to us electronically you may not receive them immediately.

14.10

We will not issue you with a receipt unless you request one.

14.11

We will not use any of your funds for our own benefit.  However, we may lawfully claim a set off against, or lien over, all or part of your funds (including their proceeds) for any of your debts due to us.

 

 

 

15.

Paying your account

15.1

We issue accounts monthly and on completion of a job or the ending of our engagement.  We may also send you an account when we incur a significant expense.

15.2

Our accounts must be paid either on settlement of transactions or, for other engagements, by the 20th of the month following the date of our account.

15.3

If you have any questions about an account, please contact us straight away.

15.4

Sometimes we may require you to pay fees, office expenses and disbursements in advance.  If we do, we will hold your payment in our trust account and only deduct our fees, office expenses and disbursements when we issue you an account.

15.5

If we hold funds in our trust account on your behalf (including any judgment, sale proceeds, settlement amount or other money), any fees, office expenses or disbursements we have issued you an account for may be deducted.

15.6

We may charge interest on unpaid accounts at the rate of 1.5% per month calculated on a daily basis and charged monthly.  We may take action to recover unpaid accounts and charge you the cost of that recovery.

15.7

Any failure or delay by us to charge interest on an unpaid account or to exercise any of our other rights will not operate as a waiver of those rights.

15.8

At your request or with your approval, we may send our accounts to a third party to pay on your behalf. You are still responsible for payment by the due date if the third party does not pay us.

 

 

 

16.

Guarantee 

16.1

If you are a company or other incorporated entity we may require personal guarantees from your directors, shareholders or other officers.

 

 

 

17.

Limiting our liability to you

17.1

In this clause we limit our liability to you.  The maximum aggregate amount that we will have to pay you is the amount set by the New Zealand Law Society as the minimum standard for the indemnity limit on our professional indemnity insurance.  This limit applies to the extent permitted by law, whatever you are claiming for and however liability arises or might arise if not for this clause (whether in contract, tort (including negligence), equity or otherwise).  We will not have to pay you more than the maximum amount for anything caused by or resulting from anything we do or do not do, or delay in doing, whether or not it is contemplated or authorised by any agreement with you.

17.2

If you are more than one person (such as a couple or partnership), this maximum is the maximum combined amount that we will have to pay you together.

17.3

If you engage us to do work for the purposes of a business, you agree the Consumer Guarantees Act does not apply.  Otherwise nothing in this clause 17 limits any rights you may have under the Consumer Guarantees Act.

17.4

We shall not be liable for any loss or liability caused or contributed to by:

 

a.

inaccurate or incomplete information supplied by you or third parties (including public records and expert witnesses) or because you did not receive or read a communication we sent you, or

 

b.

a lack of instructions or lack of clear instructions or our ability or entitlement to refuse to act or to continue acting for you including as a result of you owing us money.

 

 

 

18.

Third Party Providers

18.1

Where we recommend or suggest you engage a third party to provide you with goods or services (“third party provider”), our recommendation or suggestion will be made in good faith.  Despite this, you agree that we will have no liability to you (whether in contract, tort (including negligence), or otherwise) for any act or omission of such third party provider.

 

 

 

19.

Ending our engagement

19.1

You may end our engagement at any time by giving us reasonable notice.

19.2

If we have good cause, we may decide to stop working for you, such as if you:

 

do not provide us with instructions promptly;

 

are unable to, or do not, pay our fees as agreed; or

 

against our advice, act in a way we believe is inconsistent with our fundamental obligations as lawyers or highly imprudent.  This does not apply to litigation.

19.3

If we decide to stop working for you, we will give you reasonable notice and help you find another lawyer.

19.4

Before you take your records, you need to pay our fees for the work we have done for you.  We may keep a copy of any records you take.

19.5

The enforceability of these terms is not affected by:

 

the ending of our engagement; or

 

any changes to our partners or the incorporation of our firm.

 

 

 

20.

New Zealand law applies

20.1

Our relationship is governed by New Zealand law and the New Zealand courts have exclusive jurisdiction.

 

 

 

21.

Professional Indemnity Insurance and Lawyers’ Fidelity Fund

21.1

We hold professional indemnity insurance that meets or exceeds the New Zealand Law Society’s minimum standards.

21.2

The New Zealand Law Society operates a Lawyers’ Fidelity Fund to compensate clients who suffer theft of money or property entrusted to lawyers.  The Fund covers losses of up to $100,000 per individual claimant.  It does not cover loss where you have instructed us to invest money on your behalf (subject to limited exceptions set out in the Lawyers and Conveyancers Act).

 

 

 

22.

How we handle complaints

22.1

We are committed to providing services of the highest professional standards.

22.2

We will deal with any complaints promptly and fairly.

22.3

Please contact us straight away if you have a question about an account or if you are unhappy with any other aspect of our work.  You may contact:

 

the partner responsible for your work; or

 

our Practice Manager, Glenis Liddall by phone, post or email to glenis.liddall@harkness.co.nz.

22.4

The New Zealand Law Society also has a complaints service. Please telephone 0800 261 801 for information and advice about making a complaint.

 

 

 

23.

Client care and service information

23.1

We are committed to complying with the New Zealand Law Society's Rules of Conduct and Client Care for Lawyers.  The following statement describes some of our professional responsibilities to you:

 

Whatever legal services your lawyer is providing, he or she must:

 

a.

act competently, in a timely way, and in accordance with instructions received and arrangements made;

 

b.

protect and promote your interests and act for you free from compromising influences or loyalties;

 

c.

discuss with you your objectives and how they should best be achieved;

 

d.

provide you with information about the work to be done, who will do it and the way the services will be provided;

 

e.

charge you a fee that is fair and reasonable and let you know how and when you will be billed;

 

f.

give you clear information and advice;

 

g.

protect your privacy and ensure appropriate confidentiality;

 

h.

treat you fairly, respectfully, and without discrimination;

 

i.

keep you informed about the work being done and advise you when it is completed;

 

j.

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 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.

 

 

 

If you have any questions about these terms, please ask.