Terms of Engagement - The Mount Lawyers

General

1.1 These Terms of Engagement (Terms) will show you how we will communicate with you, the duties we owe you, how we will charge you and what happens if our relationship comes to an end.

1.2 These Terms apply to any piece of work (Work) that you ask us to do for you (current and future). They are available on our website, and a link to them will be provided to you at the commencement of our working relationship (in each letter of engagement). We may change these Terms from time to time by updating our website.

1.3 We are an incorporated law firm operating under the company C.A.P.A.C Limited (CAPAC). We operate from three main offices; iCLAW Hamilton, iCLAW Waihi, and The Mount Lawyers (a division of iCLAW) – located in Mount Maunganui, Tauranga.

1.4 “iCLAW”, “iCLAW | Hamilton”, “iCLAW | Waihi”, and “The Mount Lawyers (a division of iCLAW)” are each trading names (Trading Names) of CAPAC. CAPAC also owns and uses the Trading Names for “Karin Thomas Lawyers” which previously operated in Waihi, and “CG Law” and “Clive Gardner Law Office”, each of which previously operated in Mount Maunganui. CAPAC also owns and uses the Trading Name “iCLAW | The Mount Lawyers”.

1.5 The Directors of CAPAC also describe themselves as “Partners” as it is a term better understood in the legal market delineating a principal in a law firm.

Services

2.1 The Work that we will do for you is outlined in the letter/email of engagement that we send to you along with any further instructions that you provide to us in writing (or that we record in writing).

2.2 We will aim to complete Work for you at a price that reflects the complexity and urgency of the Work, the level of experience and technical ability of the individuals that will complete the Work and your expectations. To do so, we may delegate the Work within the firm and, in some instances, to external associates (such as Barristers or other specialists). We will always ensure that the Work is overseen by a senior member of our team and you will only ever need to communicate with people that you know and trust.

Our Fees

3.1 Our fees (Fees) are charged in accordance with the guidelines set in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Lawyers Rules). In setting a Fee, we will assess the time involved, the expertise required and the urgency of your instructions. We may also take account of (amongst other things):

(a) The importance of the matter and the results achieved;

(b) The degree of risk assumed by the Firm in undertaking the Work, including the amount or value of any property involved;

(d) The experience, reputation, and ability of the personnel carrying out the work;

(e) Any fee estimate we may have provided; and

(f) The reasonable costs of running a law practice.

3.2 We may provide you with an estimate of our likely Fees and costs (Fee Estimate) in our letter/email of engagement, which will be based on your instructions and the information we have available at the time. A Fee Estimate is an estimate only. If your instructions or the circumstances change, so may our Fees. Where possible, we will advise you if we need to revise our Fee Estimate, and Work which falls outside the initial work you have asked us to do (and therefore outside the Fee Estimate) will be charged on an hourly rate basis.

3.3 Our charges will be based on the time spent on the task calculated at our normal hourly rates, plus disbursements and GST (if applicable). Our ordinary hourly rates are as follows:

(a) Partners and Consultants: $550-$650 per hour;

(b) Associates: $375-$475 per hour;

(d) Solicitors: $250-$325 per hour;

(e) Legal Executives: $180 – $300; and

(f) Law Clerks: $150- $250 per hour;

3.4 Urgent Work (where the Work must be completed urgently) may attract a 30% increase in hourly rates, and international Work where the Work relates to cross-border transactions or you (our client) are based overseas may attract a 60% increase in hourly rates at our discretion, however, you will be advised of the application of these different rates.

3.5 Disbursements are costs that you can incur which may include items such as search fees, the costs of experts, court filing fees, registration fees, fees charged by third-party advisers (barristers, valuers, accountants, and tax advisers), travel and courier charges. We will let you know in advance about any significant or out-of-the-ordinary costs we may need to incur.

3.6 In addition to Disbursements, we may charge a nominal fee for ‘office expenses’ to cover out-of-pocket administrative costs which are not included in our Fees, and which are not recorded as Disbursements. These include photocopying, use of Land Online and other external portals that we must access to complete your work, postage and printing and phone calls. We may also charge a fee for our time spent and administrative costs relating to the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 Act, as outlined further below under the heading ‘Anti Money Laundering’.

3.7 We will send interim invoices to you, usually monthly, and on completion of the matter, or termination of our engagement. We may send you invoices more frequently when we incur a significant expense or undertake a significant amount of Work over a shorter period.

3.8 The Work we complete for you will usually attract Goods and Services Tax (GST). If this is the case, GST is payable by you on our Fees, Disbursements and office expenses.

3.9 Invoices are payable within 7 days of the date of the invoice unless alternative arrangements have been made with us. Also:

(a) If we are holding monies in trust for you or we are receiving monies for you – you authorise us to deduct our Fees from funds held or received.

(b) If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.

(c) If your account is overdue, the amount outstanding will incur interest, calculated at the rate of 2% per month, compounding monthly, for the period that the invoice is outstanding. If the account remains overdue, we may:

(i) Stop work on any matters in respect of which we are providing services to you;
(ii) Require an additional payment of Fees in advance or other security before recommencing work;
(iii) Recover from you in full, any costs we incur in seeking to recover the amounts from you, including our own fees and the fees of any collection agency.

(d) Payment may be made by direct credit to our account; the details for which will be set out in our invoices.

(e) Payment can also be made by credit card through our website (pay.iclaw.com).

(f) We may ask you to pre-pay amounts to us or to provide security for our Fees and disbursements. We may do this, on reasonable notice, at any time. Reasons for doing so may include having difficulty with getting payment in the past (which is only fair), you being a new client to the firm, the nature of the work, and the amount of money we will expend for you in Disbursements.

(g) Subject always to relevant law and these Terms, all money received from you, or on your behalf will be held to your credit in our trust account. Further:

(i) Payments out of the trust account will be made either to you or to others with your authority.
(ii) A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided to you.
(iii) Unless it is not reasonable or practicable to do so, when we hold significant funds for you for more than a short period of time we will place them in an on-call deposit account with a bank registered under section 69 of the Reserve Bank of New Zealand Act 1989. Interest earned from these on-call deposits, (less withholding tax and an administration fee payable to us of 7% of the interest or such other percentage we may set), will be credited to you.
(iv) To the extent legally permitted, our liability to you (in contract, tort, equity or otherwise is limited to the lesser of the sum of $2,000,000 and a sum equal to four times the fee that you have paid to us for the requisite work (excluding disbursements, other expenses and GST).

How we will communicate with you

4.1 When we start working with you, we will obtain your contact details, including email addresses, postal addresses and telephone numbers. We are a modern firm and so we prefer to communicate via, email, telephone and text (though we are always happy to meet in person). It is over to you to let us know if your details change. Though every now and again we may make contact just to check you are still using the addresses and numbers you provided at the beginning.

4.2 We will communicate with you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the Work being undertaken.

4.3 We have been known to come across or write some interesting articles and literature that may be relevant or of interest to you. If we think something we have seen or written might be worth a look (including our newsletter), we will send it to you. We will use the information that we collect from you to deliver these articles or items of interest. If you would prefer we don’t contact you in this way, just let us know.

Anti Money Laundering

5.1 We comply with the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML Act). This means we may require various levels of information about you and your transaction (called ‘client due diligence’ or ‘CDD’). The CDD we require may change depending on the nature of the matter or transaction and the nature of the client (e.g., a company, trust, or private individual). We commit to charging a fair and reasonable fee for our time invested in conducting CDD, estimated to be $40 (inclusive of GST) for each person or entity for whom CDD is required.

5.2 The Financial Transactions Reporting Act 1996 and AML Act require us to collect from you and to retain information required to verify your identity. We will ask you to show us documents verifying your identity (such as a passport or driver’s licence). We will retain copies of these documents. We will perform other customer verification checks as to your identity and checks as to the source of any funds associated with any transaction to which the Services relate as we consider to be required by law.

5.3 To enable us to comply with our legal obligations in respect of compliance under the AML/CFT Act the administration fee for this compliance will be $40 (inclusive of GST) for each person for whom CDD is required.

Confidentiality and Personal Information

6.1 We will hold in confidence (i.e. not disclose) all information concerning you or your affairs that we acquire while acting for you. We will not disclose any of this information to any other person except:

(a) To the extent necessary or desirable to enable us to carry out your instructions;

(b) As agreed by you;

(d) to the extent required or permitted by law.

6.2 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.

6.3 While we will always seek to comply with our obligations to you, you authorise us to disclose any personal information to third parties for the purpose of providing the Work and any other purposes set out in these Terms.

6.4 We may disclose your name and address to third parties such as credit agencies to perform a credit reference or to undertake credit management or collection processes if it is reasonable to do so.

6.5 The information we collect and hold about you will be kept at our offices and/or at secure file storage sites. If you are an individual, you have the right to access and correct this information. If you require access, please contact our Privacy Officer and Managing Partner, Aasha Foley.

Documents, Records and Information

7.1 We will keep a record of all important documents which we receive or create for you on the following basis:

(a) We may keep a record electronically and destroy originals (except where the existence of an original is legally important such as in the case of Wills);

(b) At any time, we may dispose of documents that are duplicates, or which are trivial (such as emails that do not contain substantive information), or documents that belong to us; and

(c) If you ask us to, we will send copies or originals (at our option) of all documents to which you are entitled under the Privacy Act 2020 or any other law. We may charge you our reasonable costs for doing this (but only if there was a lot of documents to copy or compile).

(d) Where we hold a document that belongs to a third party that you would like to see, you will need to provide us with that party’s written authority to uplift or obtain a copy of that document.

(e) Unless you instruct us in writing not to do so, you authorise us (without further reference to you) to destroy all files and documents in respect of the Work 7 years after our engagement ends (other than any documents that we hold in safe custody for you or are otherwise obliged by law to retain for longer).

(f) We may return documents (either in hard or electronic form) to you rather than retain them.

7.2 We own the copyright in all documents or work we create while performing the Work but grant you a non-exclusive license to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.

Conflicts of Interest

8.1 We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves as set out in the Lawyers Rules. This may result in a situation arising where there is a risk of a conflict of interest arising.

8.2 We have procedures in place to identify and respond to conflicts of interest or potential conflicts of interest. If a conflict of interest does arise, we will advise you of this and follow the requirements and procedures set out in the Rules. This may mean we cannot act for you further in a particular matter, and we may terminate our engagement.

Duty of Care

9.1 Aside from our overarching duty to the Court, our duty of care is to you and not to any other person. Accordingly, we owe no liability to any other person, including for example any directors, shareholders, associated companies, employees or family members unless we expressly agree in writing. We do not accept any responsibility or liability whatsoever to any third parties who may be affected by our performance of the Work or who may rely on any advice we give, except as expressly agreed by us in writing.

9.2 Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.

9.3 Our advice is opinion only, based on the facts known to us and on our professional judgement, and is subject to any changes in the law after the date on which the advice is given. We are not liable for errors in, or omissions from, any information provided by you or third parties.

9.4 Our advice relates only to each particular matter in respect of which you engage us. Once that matter is at an end, we will not owe you any duty or liability.

9.5 Unless otherwise agreed, we may communicate with you and with others by electronic means. We cannot guarantee that these communications will not be lost or affected for some reason beyond our reasonable control, and we will not be liable for any damage or loss caused.

Fidelity Fund

10.1 The New Zealand Law Society administers the Lawyer’s Fidelity Fund and provides you with some protection against theft of your money (up to NZ$100,000) if your money is held by us in our trust account or in an interest-bearing deposit account. However, this protection will not apply where you have instructed us to invest your money in an investment that is not included in the cover of the Lawyer’s Fidelity Fund (investments not covered include, but are not limited to, the purchase of shares on a stock exchange or the deposit of funds for investment purposes).

Guarantee

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

Limitations on our Obligations or Liability

12.1 Without limiting clause 3.9(h)(iv) under the heading “Our Fees”, to the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our Work is limited to the amount available to be payable under the Professional Indemnity Insurance held by the firm.

12.2 We do not provide specialist tax advice. Where you are involved in any matter involving tax we recommend you seek specialist tax advice, and you agree that we are not liable for any loss you may suffer if you elect not to obtain advice.

12.3 Where we act for you on matters that emerge from or include the laws of another country, you agree that we do not accept any responsibility for your compliance with or liability under the laws of that other country. In these instances, we will (if you ask us to do so) seek advice on your behalf about your rights and obligations under such foreign laws, and the terms of engagement with that adviser in that other country will apply to any such advice.

12.4 If you require insurance over a building or asset, we recommend you seek confirmation that insurance can be obtained as soon as possible. We are unable to give advice as to whether any insurance product will be available, and you agree that we are not liable for any loss that may be suffered because of any insurance product not being available.

Termination

13.1 You may terminate our engagement with you at any time.

13.2 We may terminate our retainer in any of the circumstances set out in the Rules, including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.

13.3 If our retainer is terminated, you must pay us all Fees, disbursements and office expenses incurred up to the date of termination. A final invoice may be issued at our discretion for time spent and costs incurred by us until the date of termination.

Feedback and Complaints

14.1 Your satisfaction with our Work is fundamental to us and our enjoyment of what we do for a living. If you are ever unhappy with something we have done, a Fee charged or the advice we have provided, we want to know about it, and we will not be offended when you raise it. We would love an opportunity to remedy an issue, and if we cannot, and you leave us, we want to know how to avoid the same thing happening again. By the same token, our team love hearing positive feedback, and we cherish an opportunity to hear about what we are doing well.

14.2 We maintain a procedure for handling any complaints by clients. Any complaint will be dealt with promptly and fairly. You may refer any complaint either to the person who has overall responsibility for your work or to any of our Partners by:

(a) Letter: Level 2, 286 Victoria Street, Hamilton Central, Hamilton 3204;

(b) Email: info@iclaw.com; or

14.3 The New Zealand Law Society has a complaints service, and complaints may be directed to:

Lawyers Complaints Service
PO Box 5041
Wellington 6140
New Zealand
Phone: 0800 261 801

To lodge a concern: www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form

To make a formal complaint: www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/how-to-make-a-complaint

Email: complaints@lawsociety.org.nz