New Zealand Law Society Client Care and Service Information
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 New Zealand Law Society’s 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.
We hold professional indemnity insurance cover that meets or exceeds Law Society guidelines.
If your instructions involve or result in us being entrusted by you with money or other valuable property, you are protected by the Lawyers’ Fidelity Fund if the money or property is taken by theft by us or by any of our employees or agents. Claims on that fund are limited to $100,000 for any one theft.
If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.
Terms OF ENGAGEMENT McMahon Butterworth Thompson Lawyers (MBT)
Our Relationship with You – Authority to Act and Retainer
We value our relationship with you. We believe it is important that you are aware of and understand our terms of engagement.
Telephone or email requests or receipt of documents from you or from another party on your behalf are sufficient authority to instruct MBT to act on your behalf unless we specify otherwise.
Once we have received and accepted your instructions to act either directly or indirectly we are entitled to charge you for our services.
There is no need for you to sign these terms of engagement in order to accept them. We will take your continued instructions as your acceptance of these terms. If you have any questions about them, please discuss them with the solicitor responsible for your file.
Our advice is personal to you, and cannot be relied upon by others. These terms of engagement are subject to your rights under the Lawyers and Conveyancers Act 2006, and may also be subject to change from time to time on the basis that no change will take effect before we have notified you of it.
Financial Aspects of Our Relationship with You
In appropriate cases, we reserve the right to require you to provide us with a reasonable float against which our costs can be debited and we reserve the right to stop work on your files if the float is not provided or if it is not topped up when required.
If your matter involves a court or tribunal hearing or a mediation, we will require you to pay to us an estimated amount to cover the costs to be incurred by us in preparation for and attendances at the hearing or mediation. We will advise you of this amount within a reasonable time prior to the hearing or mediation. If the estimated amount is not paid by you to our trust account when required, we reserve the right to stop acting for you.
Our charges are based upon a combination of time, urgency of the work, complexity of the work, importance of the result and other factors. Our fee includes incoming and outgoing attendances by email.
We recover all disbursements we have incurred on your behalf. All other expenses including telephone, mobile calls, photocopying, file storage and the like are recovered by way of an 'Office Expense' which appears as an item on our invoices. We charge a flat rate of 3% of your fee to cover Office Expenses. In some instances we charge additional sums where additional office expenses have been incurred such as when we are required to print large volumes of documents for court. We reserve the right to ask you to pay disbursements (for example, court filing fees and hearing fees) in advance and we are not obliged to meet those obligations on your behalf if you do not provide funds with which to pay them.
Any estimate of our fee will normally be a range between a minimum figure and a maximum figure and is a guide only. We will state any significant assumptions made in providing the estimate. The amount of the final fee may be more or less than the estimated range depending on all the circumstances. For more complex matters we will generally break the work down and give a stage-specific estimate before the start of each stage. We emphasise that an estimate is not a quotation, nor a cap on what may be charged.
Sometimes we may need to brief consultants (barristers, experts etc) on your behalf. Their charges will either be incorporated in our account or billed separately.
We will send you interim invoices for all work carried out in accordance with your instructions usually on a monthly basis. This will help you by spreading the payments over time and will enable you to keep track of how much the work is costing. Payment for our work is to be made within 7 days of the date of invoice. For conveyancing matters, payment of any outstanding fees and disbursements is required on settlement of the transaction.
We offer payment of our accounts by credit card. If you choose to pay in this way, a surcharge of 3% of the total fee will be charged.
We reserve the right to charge interest at 2% per month (apportioned when payment is made part way through a month) on overdue accounts and to charge you for our costs of collection of overdue accounts. We reserve the right to stop work on any files where you (or any of your associated entities) has overdue accounts. We also retain a lien (a right of retention) over your files if any accounts are unpaid.
If you have any difficulty in meeting any of our accounts please contact us without delay so that we can discuss payment arrangements with you.
We may use information you have provided to us to assist in the collection of your overdue account and we may obtain from and give to any third party (including credit agencies) information which may assist us to obtain payment of overdue accounts.
We operate a trust account. All money received by us from you or on your behalf will be held to your credit in the trust account. Payments out of the trust account will be made to our office account, or to you or to others, as appropriate, with your authority. Interest earned from call deposits or term deposits, less withholding tax and an interest collection commission of 4.4% on the gross interest earned payable to us will be credited to your account. Monies held in our trust account but which are not placed on call or term deposit will not earn interest.
You authorise us to deduct from funds held in our trust account for you or any of your associated or related entities, any fees or disbursements owing to MBT or any consultants, barristers or other agencies contracted by MBT on your behalf or any associated or related company, entity, partnership, trust or person.
If we are acting on instructions from more than one of you, you are jointly and severally liable for our fees and disbursements.
Dealing with Conflicts of Interest
We take reasonable steps to try to ensure that no conflict arises between our duties and your interests. On the rare occasions that a conflict or potential conflict does arise, we will follow the New Zealand Law Society’s rules and we will:
Advise you of the circumstances giving rise to the conflict or potential conflict;
Advise you that you should take independent advice and help you to make suitable arrangements, should you so wish;
In the case of a conflict between our duties to two or more clients, decline to continue to act for any of the affected clients if there is more than a negligible risk that we cannot discharge our duties to all affected clients.
Understanding the process of litigation
You should note the following specific matters in relation to the special nature of the relationship of legal practitioners and the client to the Court and the costs involved in conducting litigation.
Obligations of legal practitionersLegal practitioners are officers of the Court. Their obligation is first to the system of justice, not only in court proceedings but generally in the providing of legal services to clients. They must bring an independent legal perspective to a client's case. They have particular legal obligations of candour and honesty to the Court.They cannot carry out an instruction for a client which conflicts with their obligations to the Court.
The benefits and costs of litigation
Litigation is often the most effective way to access a legal right. Courts are impartial arbiters of disputes according to the law. A court decision, after appropriate appeals, is a final determination of the relevant facts and legal principles in any dispute with a third party.
However, litigation is costly in time, energy and financial terms. The time and expenses involved are necessarily out of both your and our control and, to a large extent, are in the control of the Court and governed by the law.
It is difficult to predict with complete accuracy the likely course of litigation: the law by its nature is subject to continuing development and even where the law is clear, further facts may come to light which will affect the outcome of the case. The legal outcome of your case will depend on the ability of the parties to prove relevant matters and the acceptance by the Court of your evidence. The determination of many legal issues, including the form of any remedy obtained, will depend on the judgment and, in some cases, the discretion of the Court.
Commercial considerations may also influence decisions as to how you wish to proceed at any particular point during the course of litigation. The following specific issues should be noted:
The court has, in the course of court proceedings, the power to make certain orders with respect to the payment of costs, including making orders against you.
The amount recovered or payable by you to another party under any costs order is additional to any costs estimate contained in this letter which relates only to your own costs. The court may not specify the amount payable under a costs order in every case. The parties may have a right to apply to the court for an assessment of the amount payable.
Save in very unusual circumstances or where an enforceable contract provides for costs to be awarded on an indemnity basis, the amount recovered by you under any costs order obtained against other parties in the litigation will not cover all of the costs payable by you under this letter and our terms of engagement.
Anti-Money Laundering (AML) Procedures & ConsenT
We collect personal information from you in order to:
Complete legal transactions relating to your instructions;
Satisfy Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the AML/CFT Act) as required by law; and
Satisfy 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 have retained Trust, Integrity & Compliance (TIC) to undertake all client AML due diligence for us. TIC offers an efficient, cost effective and independent process.
We, either directly, or via TIC, will let you know what information/documents are required for this purpose. In addition to your personal information, there may be other relevant persons that need to comply (e.g. any beneficial owner). We may also need you to provide the source of funds/wealth, details of the transaction, the ownership structure, tax identification details, and any other relevant matter before we can start work on a transaction.
Dealing with Information
We will undertake our services with reasonable care and skill, but if you fail to disclose relevant or important information we cannot be responsible for the consequences. We will treat information which you disclose to us as confidential, to the fullest extent allowed by law. All of our staff sign a confidentiality agreement as part of their employment agreement which means that information will not be disclosed to anyone outside the firm except so far as is necessary to enable us to carry out your instructions.
We cannot guarantee the security of any electronic communication, and therefore take no responsibility for any loss that may arise from non-receipt of any communication or any breach of security, computer viruses, malware or similar threats.
Upon completion of your instructions, your file will be kept in an electronic format for at least six years and may then be destroyed by us. Trust account records will be retained on our computer system in accordance with our statutory obligations.
If you uplift any documents or your files from us, we reserve the right to keep copies and to pass our reasonable copying costs on to you.
Feedback & Complaints
Client satisfaction is a main objective of MBT and feedback from clients is very helpful to us. If you would like to comment on any aspect of our service we would be happy to hear from you. If you are unhappy with our services or charges we strongly recommend communication with the partner responsible. Should a satisfactory resolution not be achieved you have the right to refer the matter to the New Zealand Law Society. If you require further information on this service, you should contact the Law Society on 0800 261 801 or refer to www.lawsociety.org.nz.