Terms of Engagement
Terms of Engagement – The Mount Lawyers Limited (“the Firm”) 2021
1. What are your Obligations to the Firm?
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 law 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 offer 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. To complete this process, we obtain verification of the documents you provide from a reputable identity verification service unless we have your advise that you do not wish us to obtain verification and you will obtain verification from a reputable agency at your own cost, we will proceed to verify the information you give us.
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 your work, if you have any queries or concerns
2. Client’s Instructions
The Firm will act in the Client’s best interests to carry out the Client’s instructions. The Firm reserves the right to cease to act where the Client cannot or will not provide instructions, or where the Firm is of the opinion that the Client has misled or deceived the Firm in any material way. The Firm will take reasonable steps to keep the Client informed of the steps taken to carry out the Client’s instructions. By instructing the Firm the Client accepts liability to pay the accounts that the Firm will render for work done together with all outlays incurred in respect of the Client’s instructions.
3. What are the Firms Obligations to the Client?
The Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society requires that in all events, subject to the duties of the Firm and its members to the courts and to the justice system, the firm and each of its lawyers must:
- Act competently, in a timely way, and in accordance with any arrangements made between the Client and the Firm;
- Protect and promote the Client’s interests and act for the Client free from compromising influences or loyalties;
- Discuss the Client’s objectives and how they should best be achieved;
- Provide the Client with information about the work to be done, who will do it and the way in which the Firm’s services will be provided;
- Charge the Client a fee that is fair and reasonable, and let the Client know when the Client will be billed;
- Give the Client clear information and advice;
- Protect the Client’s privacy and ensure appropriate confidentiality;
- Treat the Client fairly, respectfully, and without discrimination;
- Keep the Client informed about the work being one and advise when it’s completed;
- Let the Client know if the instructions are of the sort where the Client may be eligible for legal aid, and if so whether the Firm is prepared to undertake the work in the instructions if paid by legal aid;
- Let the Client know how to make a complaint, and deal with any complaint promptly and fairly.
4. How does the Firm charge?
The Firm’s fees are charged in accordance with the guidelines laid down by the Rules of Conduct and Client Care of New Zealand Law Society. In fixing the fee the Firm is entitled to take account of considerations such as;
- The importance of the matter to the Client and the results achieved;
- The urgency and circumstances in which the work is undertaken and any time limits, including time limits imposed by the Client;
- The degree of risk assumed by the Firm in undertaking the services including the amount or value of any property involved;
- The complexity of the matter and the difficulty or novelty of the questions involved;
- The experience, reputation, and ability of the personnel carrying out the work;
- The possibility that the acceptance of the instructions will preclude employment of the Firm by other clients;
- The reasonable costs of running a law practice.
5. What about out-of-pocket payments the Client has to make?
Payments may have to be made to other people for work to be done, for example filing fees, search fees, and similar payments (called outlays or disbursements). The Firm is not required to pay these amounts for the Client unless the Firm receives payment from the Client first. The Firm has the right to ask for these specific amounts or for an approximate amount to cover these expenses to be paid in advance to ensure that the Firm is not out of pocket.
If the Firm instructs any other person (including Counsel or another lawyer) the Firm has the right to require payment of that person‘s estimated fees into the Firm’s trust account beforehand. By instructing that person, the Firm undertakes an obligation to pay that person’s fees and accordingly requires to be protected for them. The Firm may require the Client to enter a payment arrangement directly with that person.
6. Disbursements, Outlays and Office Expenses
- The Firm makes a charge of $92.00 including GST as a recovery of office expenses for each file it opens to cover the cost of the file, toll calls, mobile phone calls, communication charges, minor photocopying costs, postages, emails, accounting charges and sundries.
- The firm makes a charge of $15.00 including GST for each LINZ title search and a further $50.00 including GST for each LINZ document registered.
- The firm charges a photocopy fee of $25.00 including GST for photocopying bank loan documents required for signing and for disclosure under the Credit Contracts Act to cover the expense of copying the documents sent by the bank in electronic form.
- The firm charges an international payment fee of $34.50 including GST to cover the expense of filing a Prescribed Transactions Report required for all international payments over NZD$1,000.00 from our trust account to comply with the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.
- From time to time your funds held in our trust account will be lodged in an interest bearing deposit account. The interest derived from this account is payable to you less Resident Withholding Tax and our administration fee of 7.5% of the gross interest earned.
7. Estimate of Costs
Any costs estimate will be the Firm’s “best guess” as to what the fees and other costs are likely to be. If the work does not proceed as the Firm had expected due to unexpected complications, or if the work proves more complicated than originally anticipated, the Firm will charge for all additional work. If it appears that the estimate will be exceeded, the Firm will advise the Client of the reasons and obtain further instructions from the Client.
8. Credit Policy
The Client may be allocated a credit limit which will be:
- Confidential between the Client and the Firm (any persons such as barristers and expert witnesses instructed by the Firm with the consent of the Client);
- The total amount that the Firm will allow to be owed or due to it by the Client at any time;
- Able to be increased or decreased or withdrawn by the Firm at any time.
The Firm has the right to make reasonable and confidential credit enquiries from an appropriate information provider. The Firm may stop doing work (and instruct others to stop doing work) for the Client if the Client’s credit limit is exceeded or if payment is not received by the Firm within 7 days of issue of the Firm’s invoice.
The Firm will have no liability for any loss suffered by the Client when work is stopped for this reason.
9. When will the Client be billed?
Generally, property matters may be billed at the time of settlement or on completion of the work. The Firm may require the Client to make a payment or payments to it for the provision of legal services under this agreement prior to final billing of any matter. For other matters, the Firm may bill the Client on a regular basis.
10. When does the Client have to pay?
The Firm’s accounts are all due within 7 days of issue of the Firm’s invoice. If the Firm is holding any money for the Client, the Firm may deduct the account from that money after having provided the Client with a statement.
11. Joint and Several Liability
If there is more than one person comprising the Client then each person is jointly and severally liable for payment in due time of all the Firm’s accounts and other charges.
12. What if the Client cannot pay on time?
If the Client anticipates difficulty in the payment of any account, the Client must contact the Firm immediately and discuss arrangements for payment. Interest is payable on any account more than 7 days overdue. Interest shall be calculated at the rate of 2.5% per month calculated from the date upon which payment of the account was due until the account is paid. If payment is not made, you will be responsible for all reasonable debt collections costs and/or legal costs that we incur in recovering outstanding amounts. We note that our firm’s policy is to refer all debts over 90 days to Equifax New Zealand Limited and/or other similar Collections Agencies. By referring your debt for collection, it will affect your credit record for five years.
Where work has been done by the Firm, but the Firm has not been paid by the Client, then the Firm has the right to retain the original documents and the correspondence on the Client’s files until such time as all outstanding fees, disbursements and other expenses have been paid. This is known as a lien. This will be particularly important in circumstances where the Client decides for whatever reason to instruct another law firm. The Client must pay all outstanding fees, disbursements and other expenses before the Firm releases the Client’s files to the Client’s new Solicitors. Alternatively, that other law firm may be obliged to give an undertaking to the Firm to pay all outstanding fees and disbursements before the Client’s file is released.
14. Retention of Records
Files and documents (excluding deeds) will only be retained electronically by the Firm for a period of 10 years after which time they may be deleted or destroyed. Subject to the lien in paragraph 13 if the client wishes to inspect these or requires copies to be made to a USB memory stick, a charge may be made for this.
The Firm will hold all information concerning the business and affairs of the client in strict confidence and will not divulge such information except where required or permitted to do so by law or the client expressly or impliedly authorizes the Firm to make such disclosure.
16. Professional Indemnity Insurance
The Firm has Professional Indemnity Insurance which exceeds the minimum requirements which are specified to the profession by the Law Society If you are entrusting the Firm with money you are protected by the Lawyers’ Fidelity Fund. If the money or property is taken by theft by the firm or any of its employees or agents, claims on the funds are limited to $100,000.00 for any one theft.
In the event that you might be dissatisfied with the work undertaken then the complaints should initially be made to the person with whom you dealt. If you do not wish to refer the complaint to that person or are not satisfied with the response to the complaint, then refer the complaint to Grant Aislabie – [email protected]
If the outcome is unsatisfactory or you do not wish to do use the Firms complaint procedure, then a complaint may be made to:
New Zealand Law Society
26 Waring Taylor Street
PO Box 5041
Ph: 04 472-7837
Fax: 04 473-7909
General Enquries: [email protected]