TDSL Terms of Engagement
- You instruct Thomas Dewar Sziranyi Letts (“the firm”) to act for you on the terms set out in these terms of engagement.
- For each new job that we do for you, we will give you a “letter of engagement” outlining the work that we are going to do, and which people in the firm will do the work for you and will have overall responsibility for that work. We may choose to send the letter of engagement to you by email.
Who can we accept instructions from?
- Unless you instruct us otherwise, you agree that we can accept instructions from the any of the following people:
- Any staff member or other person that you have specifically authorised to give instructions to us.
- If you are a couple, from either one of you.
- If you are a trust, from any of the trustees of that trust (although we will send correspondence to all trustees).
- If you are a partnership, from any of your partners or officers of that partnership.
- If you are a company, from any one of your directors or an employee of the company whom you have authorised to instruct us.
- If you are a Body Corporate or Incorporated Society, the Chairperson or any person holding themselves out as being authorised by the officers to instruct us.
Fees and Payments
- The firm is entitled to charge a client fees which are fair and reasonable for the work done. A fair and reasonable fee may include charging a premium over and above hourly charge out rates for factors which include specialised knowledge, importance, and urgency in the particular circumstances. Where practicable, we will discuss these with you in advance.
- Unless we agree with you otherwise, we calculate our fee based on the time we spend on a job for you. The hourly charge out rate specified in our Client Engagement Contract is for the partner responsible and the lawyer or legal executive who will be dealing with your matter. Other lawyers or legal executives in the firm may have different charge out rates which may be charged for work undertaken on this matter from time to time. Any other lawyers or legal executives working on the matter will be charged out at a rate appropriate to their experience and skill level, but their rates will at no time exceed the supervising partner’s rate on the file without your explicit approval.
- The firm reserves the right to adjust individual’s charge out rates from time to time including rates charged out on current matters. We will advise you if that applies to the work we are carrying out for you.
- If you ask, we will give you a fee estimate. Any fee estimate will be a guide only, and we are unable to give quotes for legal work due to variability of circumstances.
- You acknowledge that the firm may issue interim invoices from time to time.
- Any special arrangements for payment or capped fees will be set out in our Client Engagement Contract or separate correspondence with you.
- You will pay any invoice issued not later than 14 days after the date of the invoice (“the due date”).
- You authorise us to deduct our fees and other expenses incurred by us from funds that we hold in our trust account on your behalf, and which are not held for any other purpose. We will only deduct invoices that are due on this matter once invoices have been rendered and sent to you.
- Where we are carrying out a property or finance transaction for you, our account is payable upon settlement of the transaction. Where we hold surplus funds from a property or finance transaction, you authorise us to deduct our legal fees and any expenses or disbursements from the surplus funds held. For property transactions with a longer timeframe, we may issue interim invoices, in which case our account is payable within 14 days.
- You irrevocably authorise a lien in favour of us on all funds obtained on your behalf, and you agree to grant the firm a mortgage over any property in your name for the recovery of outstanding fees owing on all matters with us.
- The balance of all invoices outstanding after the due date will accrue interest at the rate of 12% per annum calculated on a daily basis from the due date until the date when payment is actually made. You will be liable to pay all costs and expenses including, but not limited to, any costs incurred or charged by a collection agency and solicitor/client costs in relation to failure to pay.
- The firm may ask you for an upfront payment (called a retainer) for an amount considered appropriate to cover any initial time and attendances and as a deposit against fees to be rendered. Until invoiced, these funds are held in our trust account on your behalf. Once an invoice for the work we have done is rendered, you authorise us to apply any retainer paid to meet that invoice.
- If your account is overdue and we have not reached a special arrangement with you, we may stop working on your matter until your account is paid in full and may require payment of an additional retainer for further anticipated work before we continue work for you again.
- At your request, or with your approval, we may address our invoice to a third party to pay on your behalf. In that case, you are still responsible for payment by the due date if the third party does not pay us.
Guarantee
- If you are a company, or other incorporated entity we may need personal guarantees from your directors, shareholders or other officers.
Legal Aid
- Where appropriate, we will assist you to apply for legal aid. Until such time as legal aid is granted, we have not agreed to act for you at legal aid rates. We may seek a retainer from you in advance for work done in applying for legal aid and for any urgent work required in the meantime, and such time and attendance will be charged out at private rates, or as otherwise agreed with you.
- If legal aid is declined and you want us to continue to act for you, we will do so on our standard terms and conditions at our private rates, as discussed and agreed with you. This will be documented separately with you.
Expenses and Disbursements
- We will charge you an office service charge as a part of your first invoice. General office expenses include photocopying, document production and delivery costs, telephone expenses, routine on-line searching, AML and trust account compliance. The office service charge will be invoiced at a flat rate of $50.00 for most matters and $80.00 for trust matters, relationship property, conveyancing and finance transactions (to reflect the additional administrative and compliance costs associated with such transactions).
- Our legal fees do not include disbursements. Unless indicated, any estimate of our fees does not include disbursements or out of pocket expenses.
- We will charge you for out-of-pocket expenses and disbursements that we pay on your behalf. These include court charges and filing fees, courier charges, travel and accommodation, search and form fees from third party providers, and the fees of agents and experts. These will be passed on to you at the amount charged to us. We may ask you to pay us in advance for disbursements that we incur on your behalf. You authorise us to incur these expenses and disbursements for you as appropriate, and you authorise us to pay these disbursements and expenses on your behalf from funds that we hold in our trust account on your behalf, and which are not held for a particular purpose.
Credit
- If we agree to provide credit to you now or in the future, this will be on the terms and conditions specifically agreed with you. On instructing us to act for you, you authorise the firm:
- to carry out a credit check through any reputable credit reference agency before we make a decision on whether or not to carry out work for you or grant you credit.
- to disclose some of the information that you have given to us to such credit reference agency as part of our credit checking process, including the amount of credit you seek (if applicable).
- to disclose such details to credit reference, repossession or debt collection agencies in the event that you do not meet your obligations to us.
AML Requirements
- Lawyers are subject to certain legal obligations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (“AML”). To comply with our AML obligations, we may require you to provide certain identification and proof of address (to our satisfaction) either to us directly or to our appointed AML agent First AML before we are able to complete certain work for you, or before we receive, hold or pay out funds in our trust account on your behalf. You agree to pay our AML agent’s fee for completing customer due diligence as required by law.
- Trusts may be required to provide additional information and records.
- Where AML due diligence enquiries are substantial, you will be charged on a time and attendance basis for us complying with our obligations under the Act.
- We must hold funds received into our trust account until such time as you meet our AML requirements.
Holding Funds in Our Trust Account
- If we hold funds for you and you wish them to be placed on interest-bearing deposit, then we will require you to complete FATCA/CRS or other paperwork as required by our bank. We cannot place the funds on deposit without such forms being completed.
- We will not place funds on interest bearing deposit if the time we are to hold them is less than two months unless otherwise agreed.
- We are not obliged to place sums held less than $50,000.00 on interest-bearing deposit unless you specifically request us to do so, and we agree.
- If we hold funds on interest-bearing deposit or on term deposit in our trust account on your behalf, we may charge an administration fee. That fee will be 5% of the gross interest earned while these funds are in our trust account.
- Withholding tax will be deducted on the interest earned and paid to the IRD. If we have been provided with your IRD number, the withholding tax will be deducted at your applicable rate. If we do not have your IRD number, we are required to deduct tax at the non-declaration rate of 45%.
- We will send out annual withholding tax certificates where interest is earned.
- Where we receive funds to our trust account in a foreign currency on your behalf, we will convert those funds into New Zealand dollars at the exchange rate offered by our bank at the relevant time. We have no obligation to seek or obtain a better exchange rate for you.
- Where we are instructed by you to make payments to a foreign bank account, we will make that payment at the exchange rate offered by our bank on the relevant date and are not responsible for holding funds or delaying payment until such time as exchange rates improve unless we receive your explicit instructions to the contrary and we agree to do so.
- Any international payment charges or foreign currency conversion fees incurred will be met by you.
Legal Conflicts
- If a conflict of interest is apparent on receiving your instructions, we will contact you as soon as possible. Such a conflict may mean that we cannot continue to act for you and we may decline your instructions accordingly. If we do that, we may still act for other clients whose interests are against yours provided we do not hold confidential information of yours or we take proper steps to ensure that any confidential information of yours that we do have remains confidential.
- If a conflict of interest develops at any time, we will immediately let you know and will tell you how we plan to deal with that conflict. That may mean that we have to stop working for you, the other client, or both of you.
Scope of Our Work
- We are not qualified to give investment advice, tax advice, insurance advice or advice about foreign law unless we specifically advise you otherwise.
- Unless we specifically agree with you in writing, we will not remind you about any expiry dates for securities, leases or consents.
- Once we have provided you with advice on a particular matter, we are not obliged to update you on any subsequent developments in the law or to update our advice without you specifically requesting us to do so.
Personal Information
- All your personal information will be treated as confidential. We reserve the right to disclose this information, where necessary to:
- Entities we contract with as part of the services we provide to you and who need that information in order to perform that service; and
- The Court, law enforcement, government agencies or other parties to a proceeding where we are required to do so by law or in order to carry out your instructions or our professional obligations.
Privacy Act 2020
- The Privacy Act 2020 will govern the manner in which we collect, use, and disclose personal information.
- You may obtain a copy of any information held about you and if necessary, ask to have it corrected by writing to the firm at PO Box 31240, Lower Hutt 5040 or by emailing the Managing Partner – law@tdsl.co.nz
- We may also use your personal information to keep you informed about legal developments, other legal services, or seminars we offer including by email or text message. Please let us know if you do not want your personal information used for this purpose.
- We often obtain and rely on external information (e.g. from your accountant) or public records (e.g. from a government agency or registry) in order to carry out your instructions. This information may not always be accurate, complete, or up to date. We do not accept responsibility to investigate or verify external information or public records and will not be liable for any damage or loss caused by errors or omissions in them.
Retention of Your File
- We will keep information relating to your matter for the minimum period required by law (presently 7 years). We may destroy any physical copy of your file in a manner which ensures your private information remains confidential upon completion of your matter, provided that we will retain a digital copy of your file and personal information in a secure way indefinitely.
- We may store some important documents for you in a paper form and in our deeds safe, or we may return these to you at our option. We will not destroy any documents we have agreed to hold in safe custody for you such as wills.
Termination
- You can terminate your agreement with us at any time. If you do so, you must pay all outstanding fees and costs up to the date of termination. Any un-invoiced fees and other costs will be invoiced upon termination.
- We may end our engagement with you on reasonable notice to you in accordance with the Lawyers: Conduct and Client Care Rules 2008. This may include if you:
- do not provide us with instructions promptly.
- are unable to or do not pay our fees as agreed.
- give us instructions that would require us to breach any professional obligations that we hold, or if you mislead or deceive us in any material way.
- behave in a way which, in the firm’s view (acting reasonably) constitutes unacceptable behaviour including threats, violence, bullying or intimidation towards the firm’s partners or staff.
- If we decide to stop working for you, we will use best endeavours to help you find another lawyer.
- Before you take your documents on the termination of our agreement with you, you must pay our fees for the work that we have done for you. We may keep a copy of any documents that you take including storing them electronically.
Limitations on Extent of Our Obligations or Liability
- Except where otherwise provided by law, the total amount that we have to pay you if we are found liable for any loss or damage is the greater of $1,200,000.00 or $900,000.00 per partner in the firm. The limit applies whatever you are claiming for, and however the liability arises.
- We hold professional indemnity insurance for the sums set out in clause 54. This meets the New Zealand Law Society’s minimum standards.
- If you have instructed us as a couple, a partnership or a trust, the maximum liability set out above applies to all of you combined and is not per individual.
- We are not liable for any loss you suffer because we relied on information provided by you or by a third party (including the public records, other professionals engaged by you and expert witnesses), or if you did not provide us with all information required to carry out your work, or if you did not read a communication that we sent to you.
Lawyers' Fidelity Fund
- The Law Society maintains the Lawyers' Fidelity Fund for the purpose of providing clients of lawyers with protection against pecuniary loss arising from theft by lawyers. The maximum amount payable by the Fidelity Fund by way of compensation to an individual claimant is limited to $100,000.00. Except in certain circumstances specified in the Lawyers and Conveyancers Act 2006, the Fidelity Fund does not cover a client for any loss relating to money that a lawyer is instructed to invest on behalf of the client.
Applicable law
- Our agreement with you is governed by New Zealand Law and New Zealand Courts have exclusive jurisdiction over any dispute between you and the firm.
- These terms and conditions will continue to be enforceable after the end of our engagement with you and continue to apply despite any changes to the partnership make-up of the firm, or if the firm incorporates.
Complaints
- We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly. If you have a complaint about our services or charges, you may refer your complaint to the person in our firm who has overall responsibility for your work. If you do not wish to refer your complaint to that person, or you are not satisfied with that person’s response to your complaint, you may refer your complaint to our Managing Partner, Louise Sziranyi. She may be contacted as follows:
- by letter – PO Box 31240, Lower Hutt 5040
- by email at louise@tdsl.co.nz
- by telephoning her at 04 570 0442
- by letter to the New Zealand Law Society,
Box 494, Wellington, 6140.
Our Duties to You – Client Care and Service
- In acting for you, the firm and our lawyers must:
- 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 invoiced;
- 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 Lawyers: Conduct and Client Care Rules 2008. Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.
- Our duties are owed to you, the client named in our letter of engagement. Nobody else (such as family members, shareholders, directors or related entities) can rely on our advice without our written permission.
