TERMS ON WHICH INSTRUCTIONS ARE ACCEPTED
Effective for instructions in progress on, and new
instructions accepted on or after, 1 August 2023
1.1 I will deal with work on which I am instructed in accordance with my obligations under the Lawyers and Conveyancers Act 2008 (“Act”), the Rules of Conduct and Client Care (“Rules”) under that Act and these terms. These terms shall not contradict my obligations under the Act and the Rules.
1.2 Instructions must be received through a solicitor (“instructing solicitor”) unless one of the recognised exceptions to this requirement applies and I elect not to seek a solicitor referral.
1.4 Unless specific arrangements are made for any member of my staff, or another lawyer who is not a member of my staff but who is engaged by me to assist (“delegated lawyer”), to take responsibility for the matter, I will have principal responsibility for the conduct of work in relation to all instructions. This is subject to clause 3.1.
1.5 If I am instructed to provide further services beyond my initial instructions, these terms apply to such further work.
1.6 On a solicitor instruction I am authorised to deal directly with the solicitor’s client (“the client”), on the basis that the solicitor is kept informed of all material developments in the client’s case as they occur.
1.7 I am authorised to communicate by electronic mail (“email”) using commercially reasonable procedures to maintain security and protection of email. The risks of viruses, interception, delay and unauthorised access to email are accepted by the client and instructing solicitor.
1.8 In tax matters, unless otherwise decided, I am authorised to enter into correspondence with the Inland Revenue Department and its advisers or counsel on behalf of the client. Copies of all major correspondence on behalf of or with the client will be sent to the instructing solicitor and client as the correspondence occurs, or as soon thereafter as practicable, or upon request, depending on the client’s preference.
1.9 In all tax matters affecting a company, instructions will be treated as coming from that company and its shareholders and directors and I or the solicitor, as the case may be, may recover my fee from all and any of them.
1.10 The instructing solicitor will be responsible for taking all steps usually reserved to a solicitor in relation to the filing of proceedings, including the receipt of service of documents, unless arrangements have been made for me to attend to such matters.
2. CLIENT DUE DILIGENCE AND RETAINER REQUIRED
2.1 Instructions will not be confirmed until I have been able to undertake suitable inquiries about the client in order to meet obligations under laws against money laundering, the financing of terrorism and suspicious financial transactions. If permitted by law I may, as a precondition to accepting instructions, seek and rely upon information from the instructing solicitor to fulfill my obligations.
2.2 Solicitor instructions will not be accepted unless a suitable retainer has been paid to the solicitor’s trust account to assure payment, or to be held on account, of my fees. The retainer will not usually be less than $9,500 and may be more depending on the circumstances.
2.3 In tax debt cases involving the potential for the bankruptcy of an individual or the liquidation of a company, the retainer will not normally be less than $15,000 and could be more depending on the circumstances. In such a case the retainer and other fees should be paid by a person or through an entity not subject to the threat of bankruptcy or liquidation.
2.4 Once paid, the retainer must be held by the solicitor and may not be returned if the brief has not been completed or an account has been issued for my fees and it remains unpaid. The retainer may be held as a surety for the payment of my fees or may be applied in or towards payment of those fees upon an invoice being issued, at my option. If the retainer is applied in payment of fees and the matter is ongoing, the retainer must be topped up promptly. By instructing me through its solicitor, the client authorises the solicitor, without need for further instructions from the client, to apply the retainer at my request in or towards payment of any fees that have been invoiced by me but have not been paid.
2.5 In the case of direct instructions, a fee payable in advance will be charged, based on a reasonable estimate of the attendances likely to be involved in the instruction. If the matter is ongoing, further charges for such instructions will be billed as normal. If an advance fee exceeds the charges that would apply based on actual attendances, the excess part of the advance fee will promptly be refunded to the client. Unless the advance fee is an agreed fixed fee, if the charges for actual attendances exceed the advance fee, or ongoing fees are charged, the excess or ongoing fees are recoverable under clauses 1.3 and 4.1.
3. PERFORMANCE OF WORK
3.1 I will exercise reasonable skill and care in fulfilling instructions. I acknowledge a duty of care to the client (but not otherwise), subject to my professional obligations to the Court and under the Act and Rules. If I delegate work to a member of my staff or to a delegated lawyer, I will supervise or oversee such work to ensure that it is undertaken with the expected skill and care.
3.2 I will undertake instructions in a reasonably timely manner having regard to the nature of the instructions and my professional obligations to other clients.
3.3 I may delegate any part of the instructions to a member of my staff or to a delegated lawyer but will remain responsible for that work and will advise the client and/or instructing solicitor of any delegation, either specifically or generally.
“Headline” hourly rates
4.3 If legal staff who are employed by me, or delegated lawyers engaged by or through me, undertake work on the instructions, a fee for their time and attendances will be charged, generally reflecting an hourly rate commensurate with their experience. Work delegated to any junior or assistant working on my staff, will be charged at a rate between $250 and $500 per hour plus GST, depending on their experience. Work done by a delegated lawyer will be charged at a rate commensurate with that which would be charged for legal staff employed by me. That charge may exceed the cost charged to me by the delegated lawyer, reflecting my responsibilities for that person’s work, guidance, and supervision.
4.4 These hourly rates are subject to a prompt payment discount (see clause 4.12).
4.5 Hourly rates may be changed at any time, including while an instruction is ongoing. If a change in rates is published on my website as part of an update of the terms on which I accept instructions, then the change in rate applies to existing instructions from the date the change is effective, unless other arrangements are made. Any change in hourly rates will be disclosed clearly on the material that accompanies my fee invoice.
4.6 In some cases, I may enter into a fee arrangement that departs from the usual terms on which my fees are calculated, charged and paid. Without limitation, a fee arrangement may include:
4.7 If I enter into a fee arrangement, the terms of that arrangement must be in writing and be acknowledged by the client. These terms of practice will apply with all necessary modifications that are required to give effect to a fee arrangement. Any uncertainty as to the application of the fee arrangement shall be resolved in favour of these terms of practice applying.
International Air Travel
4.11 On a solicitor instruction my account will be addressed and rendered to the instructing solicitor and to the client, even when the client has agreed to pay directly, unless I am requested by the instructing solicitor not to do this. If the client requires an account to be addressed to a specific entity or person, that should be arranged through the instructing solicitor. Unless alternative arrangements are agreed, my accounts will be rendered only in electronic form to the email addresses of the instructing solicitor and client and will not be mailed in paper form. On a direct instruction my account will be addressed to the client and otherwise in conformity with this clause.
4.12 Fees charged for attendances by me and my staff on the basis of the hourly rates cited at 4.2 and 4.3 above (or more), which are paid within 30 days of the invoice being rendered, qualify for a discount of 10% rounded up to the nearest $5. For example a charge based on my headline hourly rate of $825 will be invoiced at $745. The discounted fee will be invoiced to you and, if it is not paid within 30 days, you agree to a supplementary invoice being issued to reverse the discount. A prompt payment discount does not apply to other payment arrangements to which clauses 4.6 and 4.7 apply, unless specifically agreed as part of that arrangement. Neither does the discount apply if your overall fee account is in arrears. The prompt payment discount will only apply to the component of an account that reflects a delegated lawyer’s charges rendered to me if that lawyer offers the same discount.
Legal aid warning
Termination of brief generally
Foreign withholding taxes
4.18 If a client must deduct any sum from payment of my fee because of an obligation owed to any tax authority other than New Zealand Inland Revenue, my fee shall be increased without further invoice by a sum sufficient to ensure that the full amount of the fee as invoiced is paid to me after any such deduction and subject to any applicable discount for prompt payment.
5. DOCUMENT MANAGEMENT
“Cloud” based information storage
5.1 From August 2019 my electronic records, including records of email, correspondence, documents and proceedings (together “information”) are stored with Microsoft Corporation, using its Azure “cloud” storage system. Electronic records from before August 2019 are retained securely on a physical back-up drive. The cloud-based information is physically located on storage devices in Australia as part of Azure’s Australia Central Region. Microsoft advises this is IRAP (Security) assessed and approved for “official: sensitive” and “protected-level” data. Information can be migrated to another provider if required and current Cloud services can then be decommissioned and all migrated data will be deleted. I acknowledge professional obligations to maintain the confidentiality of client information while carrying out instructions and after their conclusion. I have taken all practical steps to ensure that these obligations are reflected in the contractual arrangements I have with my Cloud storage provider. By entering into these terms of practice, each instructing solicitor and ultimate client consents to information relating to or arising from their instructions being stored electronically in the manner described, accepts all risks associated with that, and indemnifies me against any liability, claim or loss that occurs because of that.
6. PROFESSIONAL INDEMNITY INSURANCE
6.1 I hold professional indemnity insurance that exceeds the minimum standards specified by the New Zealand Law Society. That cover is with the New Zealand Bar Association Professional Liability Plan and is for up to $5 million in a claim year.
7.1 If a matter on which I have been instructed gives rise to a claim of any sort whatsoever against me, I accept no liability of any kind for that claim which exceeds my actual professional indemnity insurance cover for the matter on which I have been instructed. By instructing me the instructing solicitor and/or the client acknowledges this limitation of liability in relation to the brief and both agree to it.
7.2 Without limiting 7.1, I am not liable for:
8.1 The Lawyers’ Fidelity Fund does not provide cover for barristers sole as they do not hold client’s funds.
9.1 Any complaint about my service or that of any person working in my practice should be referred to me in the first instance and will be responded to urgently. If you would prefer the complaint to be referred to an independent lawyer, I will arrange for that to occur. If you wish to make a complaint to the Law Society you may do so by contacting 0800 261 801 or by emailing to email@example.com or by using its website www.lawsociety.org.nz.