These Terms of Engagement (Terms) are a necessary component of our engagement with you as a valued client of iCLAW, Culliney | Partners. They are somewhat sterile, but nevertheless, contain key terms that apply to the way we will communicate with you, what we and you can and cannot do, the duties we owe you, how we will charge you and what happens if our relationship comes to an end. We strongly recommend that you read them and ask us any questions you may have.
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. We may change these Terms from time to time. Where we do so, we will send you a copy of the amended Terms before we start any new Work for you and put the new Terms on our Website.
Our relationship with you is governed by New Zealand law and the Courts of New Zealand will hear any disputes that arise between us. However, we will work hard to resolve any disputes with you well before they get to that stage.
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.
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).
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). However, 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.
As with any business that pays staff, insurance, interest and tax we will look to make a return on the time that we spend working for you. The fees that we charge you will largely be based on our assessment of the time involved, expertise required, the urgency of your instructions and the risk/reward for the Work that we will do (risk to you as well as the risk that we will accept in undertaking the Work).
We will make a concerted effort to be very clear with you as to what each item of Work will cost you at the outset of the engagement and to do so we will set out what you have asked us to do (we call this the Brief) and the expected costs (Fees) in the initial letter of engagement or in any subsequent estimate of costs. However, as happens in some cases, the Brief changes as we work with you and our understanding (and yours) of what is required also changes. It is also possible that the underlying matter/transaction changes or becomes more, or less complicated. Where the Brief changes, so too must the Fee (up or down). Where the Fee changes, we will (again) try to be clear with you about these changes and always keep in mind your expectations and budget. In general, we want to be fair in how we charge you while keeping a close eye on our commitments to our staff and stakeholders so that we can keep doing great work for you and all of our clients for a long, long time.
Here are some other things that we will consider when setting and communicating with you about your Fee:
Work which falls outside an initial Brief (and Fee estimate) will be charged on an hourly rate basis;
Where our Fees are calculated on an hourly basis (which is not always the case), the hourly rates of the people we expect to undertake the Work are set out in our engagement letter. Any differences in those rates reflect the different levels of experience and specialisation of our professional staff;
Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules) also sets out some of our rights and obligations pertaining to Fees;
Our charges will be based on the time spent on the task calculated at our normal hourly rates, plus disbursements (disbursements are discussed below in more detail) and GST (if applicable). Our ordinary hourly rates are as follows:
Partners and Consultants: $300-$400 per hour;
Associates: $250 -$300 per hour;
Solicitors: $200 per hour; and
Law Clerks: $100 per hour.
Different rates apply to urgent Work (where the Work must be completed urgently for whatever reason) and international Work where the Work relates to cross border transactions or you (our client) are based overseas. However, you will be advised of the application of these different rates (as set out below):
Urgent - Partners and Consultants: $400 - $450 per hour;
Urgent - Associates: $320 - $400 per hour;
Urgent - Solicitors: $250 - $300 per hour;
Urgent – Law Clerks: $200-$250 per hour;
International – Partners and consultants: $550 -$600 per hour;
International – Associates: $450 - $500 per hour;
International – Solicitors: $350 - $400 per hour; and
International – Law Clerks $230-$300 per hour.
The names and status of the person(s) who will be responsible for the work you have instructed us to do will be set out in our Letter of Engagement.
Lawyers use the term Disbursements to describe the costs (which are reasonably required to be paid to complete your Work) that we as your advisers incur for you when dealing with third parties. These are simply your costs that you would incur if you did the Work yourself. These costs may include such 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. Naturally, we do not want to be left out of pocket in meeting these costs for you, so we may ask that you pay us the sum of such Disbursements before we start the Work; but in any case, we will simply pass these costs on to you as part of your invoice. You authorise us to incur these costs for you (we will act reasonably of course) in doing your Work; we will, however, let you know in advance about any significant or out of the ordinary costs we may need to incur. You also authorise us to make payments of these costs on your behalf.
In addition to Disbursements, we may charge a nominal fee to cover out of pocket costs which are not included in our Fee 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. You see, in completing Work for you, we will often use services that we pay a fee to a third party in order to access. In many ways, these costs are equivalent to consumables that many of our clients in their own business will pass on to their clients.
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.
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. If you would prefer to be invoiced in a different manner, we are open to discussing a change to our normal policies.
Invoices are payable within 7 days of the date of the invoice, unless alternative arrangements have been made with us. Also:
If we are holding monies in trust for you or (as part of a transaction that we are completing for you) we are receiving monies for you, you authorise us to deduct our Fees and other expenses from funds held or received on provision of an invoice to you, unless those funds are held for a particular purposes.
If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements. At the end of the day, we want you to succeed so we can be flexible (subject to our commitments to our own stakeholders).
If your account is overdue we will be incurring our own costs in allowing you to remain in credit to us. As such, we may:
Require interest to be paid on any amount which is more than 7 days overdue, calculated at the rate of 4% above the overdraft rate that our firm's main trading bank charges us for the period that the invoice is outstanding;
Stop work on any matters in respect of which we are providing services to you;
Require an additional payment of Fees in advance or other security before recommencing work; and
Recover from you in full any costs we incur (including on a solicitor/client basis) in seeking to recover the amounts from you, including our own fees and the fees of any collection agency.
Payment may be made by direct credit to our account; the details for which will be set out in our invoices.
Please use your invoice number or client name or number when referencing all payments.
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.
Depending on the nature of the work, you may expect to be reimbursed by a third party for our Fees and costs, and although our invoices may at your request or with your approval be directed to a third party, you remain responsible for payment to us in accordance with these Terms if the third party fails to pay us.
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:
Payments out of the trust account will be made either to you or to others with your authority. Written authorisation from you (and if we are acting for more than one of you, from all of you) will be required when payment is to be made to a third party. Before making a payment to another account we may require verification of the account details by provision of (for example) a copy of a deposit slip, cheque or bank statement showing the account number, a signed authority from you including the bank account details, or a signed letter from the relevant financial institution providing bank account details.
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 periodically and at any time upon your request.
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 5% of the interest or such other percentage we may set), will be credited to you.
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
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). As such, you will not get many posted letters from us and even fewer faxes. If this does not suit you, you will need to let us know. 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.
We will make a concerted effort to report to 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. However, we welcome contact with our clients and you should call, email or visit to check on progress if you want to know how we are getting on with your Work.
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, 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 that we leave you alone, just let us know.
Confidentiality and Personal Information
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:
To the extent necessary or desirable to enable us to carry out your instructions;
As expressly or impliedly agreed by you;
As necessary to protect our interests in respect of any complaint or dispute; or
to the extent required or permitted by law.
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.
In our dealings with you we will collect and hold personal information about you. We will use that information to carry out the Work and to contact you about issues we believe may be of interest to you. Provision of personal information is voluntary, but if you do not provide full information this may impact on our ability to provide the Work.
While we will always seek to comply with our obligations to you set out above, you authorise us to disclose, in the normal course of performing the Work, such personal information to third parties for the purpose of providing the Work and any other purposes set out in these Terms.
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.
The information we collect and hold about you will be kept at our offices and/or at secure file storage sites (including electronic file storage sites) elsewhere. 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, Owen Culliney.
The Financial Transactions Reporting Act 1996 and relevant Anti-Money Laundering and Countering Financing of Terrorism legislation requires us to collect from you and to retain information required to verify your identity. We may therefore ask you to show us documents verifying your identity (such as a passport or driver’s licence). We may retain copies of these documents. We may perform such 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.
Documents, Records and Information
We will keep a record of all important documents which we receive or create for you on the following basis:
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;
At any time, we may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us; and
We are not obliged to retain documents or copies where you have requested that we provide them to you or to another person (and we have done so), although we may (if we choose) retain copies for our own records if we wish to do so. We would do this for compliance and liability reasons or if we believed there might be a need to refer to the documents later.
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 1993 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).
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.
Unless you instruct us in writing not to do so, you authorise us and consent to us (without further reference to you) to destroy (or delete in the case of electronic records) 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). However, we may retain documents for longer at our option.
We may, at our option, return documents (either in hard or electronic form) to you rather than retain them. If we choose to do this, we will do so at our expense.
We own 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. This would also be dangerous, as we will have provided the documents to you based on your specific requirements and they may not be appropriate for use by that third party. We are, however, always happy to help a friend of yours to do the things that we helped you to do; so, feel free just to let third parties know where to find us.
Conflicts of Interest
This part of the Terms is relatively critical as it involves our ethical obligations to you, others and the Court. 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 and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules). This may result in a situation arising where we have a conflict of interest.
We have procedures in place to identify and respond to conflicts of interest or potential 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 Rules. This may mean we cannot act for you further in a particular matter and we may terminate our engagement. This rule is in place to protect you and while a process like the one described above is frustrating, ultimately your interests are more important than convenience. We will welcome you back once the conflict is over and in the long relationship that we hope to have with you, such an instance will be rare, well managed and quickly forgotten.
Duty of Care
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.
Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.
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.
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 in respect of any related or other matters unless you specifically engage us in respect of those related or other matters.
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 thereby.
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) in the event that 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).
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
Without limiting clause (d) of the 14th paragraph 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.
You may terminate our engagement with you at any time, but we may want to understand why (as it would be rare for a client to leave us) so will probably follow up on you.
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. If we all conduct ourselves properly and in good faith, these instances will be rare.
If our retainer is terminated you must pay us all Fees, disbursements and office expenses incurred up to the date of termination.
Feedback and Complaints
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 really 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.
If you would like to comment on any aspect of our Work, our team or our firm we suggest that you do so by contacting the Partner that was responsible for your Work. However, put the feedback wherever you like (to the lawyer directly, Facebook, LinkedIn, Twitter etc).
If we have really annoyed you, the New Zealand Law Society has a complaints service. Complaints may be directed to:
Lawyers Complaints Service
PO Box 5041