Client Care and Terms of Professional Service
- Peter McCutcheon, Barrister and Solicitor (and any agents, contractors, subcontractors, employees, representatives and associates including associated companies, together also referred to as “the practice”, “us” and/or “we” in this agreement) agrees to provide to you the client (referred to as “you” in this agreement) legal services, materials and products (“services”) requested by you, in accordance with the terms of this agreement and applicable professional and legal obligations to the extent they are not modified by this agreement.
Scope of work to be undertaken by the practice
- By instructing or asking the practice to do any thing or act for you in any manner or for someone else, you are deemed to have accepted these terms and conditions if they have been reasonably brought to your attention, including by email. You do not have to agree in writing to be bound by these terms. You may be bound by orally instructing us to do any thing after these terms and conditions have been reasonably brought to your attention, including by email.
- We may change these terms and conditions from time to time with immediate effect, by notifying of such changes in writing. “Notifying of such changes in writing” includes at any time posting changes to the webpage http://www.petermccutcheon.co.nz/client+care+terms.html.
- No indulgence given to you shall act as an estoppel or waiver of any right this agreement affords the practice.
Name and status of the person within the practice who has overall responsibility for your work
- Work will be completed by the practice that properly falls within the scope of your instructions. If you have any comment on that scope any work undertaken or advice given, you need to let the practice know as soon as possible.
- Any services provided by the practice are for your exclusive use only, and may not be used by or referred to by third parties. The duties of the practice to you shall not extend to any other person including, for example, any associated persons, related companies, shareholders, directors, employees, other family members, trustees and/or trusts.
Client care terms
- Peter McCutcheon, Barrister and Solicitor, will have overall responsibility for your work.
- The practice is a small one. The reality is that from time to time urgent attendances may be required on other files that may take priority over your own for a number of reasons. If you are unhappy with progress on your matter, you are entitled to terminate your instructions and instruct another legal practitioner at any time.
- When providing the services, the practice shall use its best endeavours to:
- 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 comprising influences or loyalties;
- Discuss with you your objectives and how they should best be achieved;
- Provide 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.
Professional fees and expenses, deposits and retainers
- The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers (“the Client Care Rules”). Those obligations are subject to other 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.
- The practice’s fees are generally charged in accordance with the reasonable fee factors set out in chapter 9 of the Client Care Rules, unless otherwise agreed.
- When determining the reasonableness of any fee in respect of any services provided, the practice is entitled by the Client Care Rules to take the following matters into account:
- The time and labour expended;
- The skill, specialised knowledge and responsibility required to perform the services properly;
- The importance of the matter to the client and the results achieved;
- The urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client;
- The degree of risk assumed by the lawyer 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 lawyer;
- The possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients;
- The reasonable costs of running a practice;
- The fee customarily charged in the market and locality for similar legal services.
- Professional fees over the course of a matter are generally assessed in accordance with the amount of professional time spent on the matter (charged at the practice’s current hourly rates for professional attendances) and adjusted where appropriate to reflect the above factors.
- Professional attendances in all matters at the time of writing are charged at $450.00 per hour (plus GST and third party expenses).
- There is a minimum $200.00 plus GST file opening fee if a matter does not proceed, to cover the preparatory and internal work required in opening and then closing such files. A fee of $200 can be charged in changed settlement dates for residential conveyancing files, to reflect the additional work involved.
- The practice may incur third party expenses in completing your instructions, on your behalf. These are to your account, and may include Court filing fees, courier expenses, search fees, registration fees, other barrister’s fees and travel expenses. These will be invoiced to you at times considered appropriate by the practice, on the terms of this agreement.
- You are responsible for paying the practice’s professional fees including GST and third party expenses incurred, by reason of your engagement of the practice to do certain work, in accordance with the terms and conditions of this agreement. If you have arranged for someone else to make payment, you remain directly liable to the practice for full payment unit payment in full has been received. You would need to make a claim against the other person with obligations to you if they do not pay according to the terms of your agreement.
Keeping your costs down
- The practice may at its discretion ask you to pay any amount or provide any security by way of a deposit, retainer and/or any other security against any real or personal property against the payment of the practice's professional fees, GST and third party expenses that may be incurred in the course of your work.
- The practice may decline to start or continue any work if any retainer and/or security request of the practice is exhausted or not complied with.
Estimates of fees and expenses
- You are encouraged to keep your legal fees to a minimum by doing as much of the work as possible; organising your background information, documents and timelines; and generally writing things down and cooperating promptly with the practice in working on the completion of your file.
- We may, at your request, provide a good faith fee and third party expense estimate for work that may be provided in the future, within a certain scope. Any estimate is a good faith estimate based on previous experience, and is not a quote. Legal work is by its very nature affected by a large number of variables, very few of which are under the practice’s control. Some estimates are provided at the webpage: http://www.petermccutcheon.co.nz/Prices+estimates.html. The terms of that webpage form part of these professional terms of service.
- All fees including GST and third party expenses must be paid on the settlement date of your file as earliest advised to the practice, the actual settlement date, or on any terms of any issuance of any invoice, whichever is sooner. Interim invoices for ongoing files may be sent when considered appropriate by the practice.
- Penalty interest shall accrue on any overdue and unpaid amount in respect of any invoice at the rate of 2.5% per month, calculated daily. Monthly management fees or statement fees of $50 per month may also be charged on overdue invoices.
- The practice may charge a monthly management fee of 5% of the gross monthly interest paid on any client funds held on interest-bearing account for you.
- The practice may engage a third party debt collector to collect any overdue invoices and it may provide your personal information to any debt collector to assist with the collection of any overdue invoice.
- All collection costs incurred in collecting any overdue invoice from you will be to your account and will be charged to you, including any third party debt collection costs and any solicitor and client costs (including any time expended by any member of the practice, at the practice’s hourly rate (plus GST and expenses) for litigation work, in collecting any overdue invoice).
- The practice may deduct the amount of any invoice from any funds it holds on trust for you, as long as it accounts to you for those funds in accordance with the Client Care Rules.
Limitation of liability
- The penalty interest provisions of clause 23 and the debt collection provisions of clauses 25, 26 and 27 shall apply to any amount demanded repaid by the practice by reason of any over-payment made in error, from the date such repayment is said to be due (so the wording of those clauses shall effectively be amended to apply to the overdue amount demanded in the statement, rather than invoices or overdue invoices).
No liability for incidental tax or estate planning effects not expressly asked to be considered in writing within scope of instructions
- The liability of the practice to you in any file or any matter incidental or connected to any file shall at all times be limited to five times the amount of the fees paid by you in respect of the file in aggregate. At no time shall the practice be liable to you for any losses, damages, costs and/or claims of whatever kind and howsoever caused, whether direct, indirect or consequential (including any economic loss and/or loss of profit).
- The practice holds professional indemnity insurance to the value of the minimum amount required by the New Zealand Law Society.
- The New Zealand Law Society maintains a Lawyers’ Fidelity Fund for the purpose of providing clients of lawyers protection against pecuniary loss arising from theft by lawyers. Please note this only extends to theft. The maximum amount payable by the Fidelity Fund by way of compensation to an individual claimant is limited to $100,000.00. The Fidelity Fund does not cover a client for any loss relating to money a lawyer is instructed to invest on behalf of a client, except in certain circumstances specified in the Lawyers and Conveyancers Act 2006.
- The practice expressly excludes, in files concerning the conveyancing of property, any liability of all and whatever kind for any advice given in relation to the quality of any investment. This term is a requirement of the practice’s professional indemnity insurers. The practice expressly limits the scope of its responsibility in conveying property to the conveying of legal title only, in accordance with its instructions. No liability or responsibility of whatever kind is accepted for the quality of the building, property or title itself unless otherwise agreed in writing.
- No liability or responsibility of whatever kind is accepted for the inadvertent prejudice of any legal rights (e.g., the right to sue any particular party in a “leaky building claim”) when we are refinancing or transferring any property in accordance with instructions, unless we are alerted to those legal rights expressly and we expressly agree in writing to consider and advise on them.
- In the purchase of land and conveyancing files, where relevant, we always recommend you obtain a builder’s report and a LIM report, and any agreement to purchase land you sign should be conditional on those things being acceptable to you. We are unable to either determine whether such reports are acceptable or otherwise, or assume any responsibility or liability of whatever kind for any advice given in respect of such reports, as such advice is strictly outside of the scope of any work done by the practice and no statement or advice given in respect of such things shall be taken to be an assumption of responsibility in these regards.
- The practice shall not be liable for any omission unless it has been expressly instructed in writing to do the omitted act.
- The practice shall not be liable for any unintended tax or estate planning effects (including asset and debt implications) of your instructions, unless we are expressly asked to contemplate those effects in writing and we expressly accept the responsibility for that work or advice in writing. Without detracting from the foregoing, the practice is often given narrow instructions focused on a certain issue, without being given the full factual context that may be relevant to wider implications of instructions. Therefore, the practice’s responsibility can only be in terms of competently completing what is within the immediate scope of what the practice has been asked in writing to do, and not in respect of wider unintended effects unless you have expressly sought advice from us on those effects and we have agreed in writing to provide that advice. You will need to take independent tax and financial advice on what implications of work you have asked us to do, unless we agree in writing before we start work on any file such advice is properly within the scope of our instructions and we will address such issues.
- You indemnify the practice for all and any liabilities, damages, claims, costs and expenses, of whatever kind and howsoever caused, associated with any failure to observe this agreement or the enforcement of this agreement, including legal costs on a solicitor and client basis.
- The practice as a matter of policy does not assume trustee obligations in respect of family or trading trusts. There are a few pre-existing exceptions, however, that predate these terms and conditions. The following provisions apply to those few residual trustee obligations the practice has in respect of a few family trusts.
- The practice will not sign any documents as a trustee on less than 48 hours notice.
- On the condition that the practice has observed the terms of the Client Care Rules, you shall fully indemnify the practice for all and any liabilities, damages, claims, costs and expenses, of whatever kind and howsoever caused, arising from the practice undertaking the trustee office at your express request, to the extent the trust fund is unable to indemnify the practice as trustee in the normal way.
- A complaint about any invoice must be made within 5 days of receiving the invoice, detailing in writing what the issue is and how you believe it should be fairly addressed from your perspective.
- If you have a complaint about any aspect of the practice’s service, you may refer your complaint to Peter McCutcheon, Barrister and Solicitor, in the first instance, so the practice may attempt to resolve or deal with the issues as best and/or fairly as it can.
- If you are not satisfied with the practice’s response to your complaint, you can refer your complaint to the following local practitioner in writing:
Sandran Balan & Associates
P O Box 41 304, St Lukes, Auckland
- The New Zealand Law Society operates the Lawyers Complaints Service, and you are able to make a complaint to that service. To do so, phone 0800 261 801 and you will be connected to the nearest Complaints Service Office, who can provide information and advice about making a complaint.
Retention of files, documents, and the Electronic Transactions Act 2002
- You may terminate our engagement at any time.
- We may terminate our engagement on the basis of Chapter 4 of the Client Care Rules (e.g., if your instructions require the practice to breach any professional obligation; you have mislead or deceived the practice in certain respects; you are unable to pay a fee in a timely fashion; or you have failed to provide instructions in a timely manner when requested).
- If you terminate our instructions, you must pay the practice all fees and expenses to the date of termination and also incurred in winding up and/or closing your file and forwarding that to any other person, if you request us to do so.
- An engagement on a particular matter is deemed to be at an end, if there has been no correspondence between you and the practice in that matter for a period exceeding one month.
Personal information and confidentiality
- The Electronic Transactions Act 2002 allows electronic copies of documents retrieved from a secure electronic storage system to be used to satisfy legal (including evidentiary) requirements.
- We may satisfy our obligations to retain any documents (apart from wills, leases, powers of attorney, and letters of wishes, the originals of which will be kept) by keeping a scanned copy of them for 10 years. You agree that (apart from wills, leases, powers of attorney and letters of wishes) original documents may be destroyed once scanned.
- If you require your file to be uplifted, we may at the practice’s cost retain copies of your documents for the purpose of defending any future complaint, claim or proceedings against the practice.
- The practice may charge file management, storage and retrieval fees.
- All information you give us and all information concerning you and your affairs will be treated as strictly confidential by us. We will not disclose any confidential information about you to any other person, except as authorised by you, this agreement, or required by law or the Client Care Rules.
- If your instructions are joint instructions, the practice will be able to communicate and take instructions from either of you that shall at all times be binding on and deemed to have the consent of the other, including communicating and taking instructions from either of you by email.
- The practice may communicate with you and others at any time by electronic means. Such communications can be subject to interference, interception, or contain viruses or other defects. The practice accepts no liability or responsibility of whatever kind and however caused for any damage, cost or loss caused by the interference, interception or corruption of any electronic communications.
Conflicts of interest
- These terms and conditions and any amendments shall apply to any communications and instructions received from you and also to any future communications and engagement with you, whether or not you are sent or have received another copy of these terms and conditions.
- If a conflict of interest arises in dealing with your instructions, we shall advise you of this, and follow the requirements and procedures set out in the Client Care Rules.
- Any dispute or interpretation concerning these terms and conditions and your instructions shall be governed by New Zealand Law.