Terms upon which instructions are accepted

Effective for instructions in progress on, and new
instructions accepted on or after, 1 January 2021

 

1. GENERAL

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.

1.3 Instructions that are accepted by me directly, ie without an instructing solicitor, or in relation to which an instructing solicitor has not accepted responsibility for payment of my fee, are by way of contractual retainer by the client and, in the event of non-payment of my fee, the client acknowledges and agrees that I may recover my fee as a debt due directly to me from the client.

1.4 Unless specific arrangements are made for any member of my staff to act, I will have principal responsibility for the conduct of work in relation to all instructions.

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 $8,500 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 $10,000 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.

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 another lawyer but will remain responsible for that work and will advise the client and/or instructing solicitor of any delegation, either specifically or generally.

4. CALCULATION AND PAYMENT OF FEES

Responsibility for fees

4.1 Where there is no instructing solicitor, the client is responsible directly for the payment of my fees by way of contractual retainer in accordance with clause 1.3. Otherwise, the instructing solicitor is responsible for my fees and other costs unless alternative arrangements are made for the client to pay those fees and costs directly, and on account of the solicitor. In that event clause 1.3 also applies. Even if such alternative arrangements are made on a solicitor instruction, the instructing solicitor accepts a responsibility to pursue by all reasonable means payment of my fees and costs by the client, if they are not paid directly and in accordance with these terms.

“Headline” hourly rates

4.2 My fee will be a fair and reasonable charge for the work involved in the instructions. That fee will generally reflect an hourly rate for time and attendances involved in dealing with the instructions, but the fee need not be limited to that rate alone and may be adjusted for the value of the matter involved, urgency and the like. At the time these terms apply and until changed, my hourly rate is $785 per hour, plus GST.

4.3 If legal staff who are employed by or engaged 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, or with me will be charged at a rate between $250 and $475 per hour plus GST, depending on their experience.

4.4 These hourly rates are subject to a prompt payment discount (see clause 4.13).

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.

Fee arrangements

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: (a) Accepting an instruction on the basis of a fixed fee. In such cases the agreed fee must be deposited in full with the instructing solicitor before work begins. It must be applied to meet interim invoices and must not otherwise be withdrawn from the solicitor while my attendances are continuing. (b) Accepting an instruction based on a negotiated blended hourly rate reflecting my own and that of any legal staff employed on the matter. (c) Accepting an arrangement to defer or delay payment of all or part of my fee. In such cases interest will usually be charged in accordance with clause 4.10.

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.

Office costs, disbursements and bank fees

4.8 In addition to my fee, all office costs, disbursements and out of pocket expenses will be charged, plus GST and must be paid. Office costs include copying, faxes, telephone charges and similar costs and will be charged at reasonable rates set from time to time. Disbursements and out of pocket expenses will be charged by way of actual reimbursement only. These include all costs of accommodation and meals while travelling away from Auckland. Office costs include the reasonable costs to copy my file for the purposes of retaining a full record of my work, should the client or their instructing solicitor wish to uplift my file, and such costs must be paid before the file will be released. Payment of fees from outside New Zealand will usually incur a charge by the receiving bank. The client or instructing solicitor making such payment will be responsible for such charge.

Travel and accommodation costs and travel time

4.9 If I am and/or any member of my staff is required to travel on instructions, travel time will be charged unless otherwise agreed prior to the travel commencing. If a member of my staff uses a personal vehicle on instructions, vehicle travel costs will be charged at IRD approved rates of reimbursement.

Domestic Air Travel

Domestic air travel will be arranged on the basis that:
(a) Travel will be at economy rates;
(b) The client books and pays for this directly; or
(c) If the costs are incurred by my office, every reasonable effort will be made to keep them to a minimum; and
(d) When (c) applies and significant costs are incurred, the client will immediately reimburse such costs.

International Air Travel

Unless agreed otherwise, international air travel will be undertaken:
(e) At economy or premium economy class rates for flights to the Eastern seaboard of Australia and the Pacific Islands
(f) Otherwise at business class rates.
(g) (c) and (d) apply to international travel.

Accommodation
Accommodation while travelling on instructions will be settled with the client before it is booked, but must be of a comfortable standard, provide internet connection sufficient to enable connection to my chambers’ email, document and information systems in New Zealand, space to permit work to be conducted and separate accommodation where a member or members of my staff are also travelling on the same instructions.

Periodic billing, payment and discounts

4.10 My fee and costs will normally be billed monthly in an account which records the period over which my attendances have been undertaken and a general description of the matter to which they relate. The account will be accompanied by a summary of the actual attendances recorded as having been undertaken on the matter. Each account is immediately payable upon being issued. Unless prior arrangements for payment over time have been made, I may adjust any fee that has not been paid within one month of the date of issue for an interest charge. That charge will not exceed the unauthorized overdraft interest rate applicable to my practice account plus a margin of 2%.

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 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 account being rendered, qualify for a discount of 10% rounded to the nearest $5. As examples an hourly rate of $785 is reduced to $705 plus GST and a rate of $350 is reduced to $315 plus GST). All other charges are payable at face value. This discount for prompt payment does not apply to other payment arrangements to which clause 4.6 and 4.7 apply, unless specifically agreed as part of that arrangement.

Legal aid warning

4.13 I am not in a position to accept briefs on legal aid. Legal costs incurred in accordance with my terms of practice may be substantial and legal aid may be an alternative which should be considered before I am instructed. The instructing solicitor shall advise the client accordingly.

Estimates of fees

4.14 When requested I will give a reasonable and considered estimate of fees and other costs likely to be incurred on any instruction. Unless specifically stated, any such estimate is not a firm quote as to those costs and the charges for legal services in relation to the instruction may be more or less than the estimate. Giving an estimate of fees carries ethical obligations and so requires care. If you seek only an informal indication of what fees might be, I will provide that, but such an indication is not an estimate on which you may rely.

Termination of brief for non-payment

4.15 If an account remains unpaid beyond 30 days from the date of issue, I may terminate the brief and seek leave to withdraw from any proceedings then being undertaken, without affecting the obligation of the client and solicitor to meet my fee. Any decision to continue acting while an account remains unpaid does not preclude a later decision to terminate the brief.

Termination of brief generally

4.16 If my instructions are terminated by the client or instructing solicitor or for professional reasons it is not possible for me to continue to act, the obligations of the client and solicitor to meet my fee to the date of termination are unaffected.

Security for payment of fees

4.17 I may at any time request that security be given by a client to my instructing solicitors (or to me on a direct instruction) for the payment of fees already incurred, or to be incurred. By entering into these terms, the client agrees that my instructing solicitors (or I in relation to a direct instruction) may take a mortgage over any real property or a charge over any personal property in which the client has any interest and may in the case of real property lodge a caveat to secure payment of such fees based on this agreement to mortgage. I may terminate the brief if satisfactory security is not available within a reasonable time after my request, without affecting the obligation to meet my fee.

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.

Intellectual property

4.19 All intellectual property in my work product, including in all documents, reports, written advice or other material provided by me to the client and/or instructing solicitor remains with me. The client and/or instructing solicitor have the right and license to use such work product for the case and purpose for which it was created, but may not otherwise use the work product without my express permission.

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.

Return or destruction of documents

5.2 At the conclusion of an instruction I will usually return to the instructing solicitor all documents related to the instruction other than my file. Unless instructed otherwise, I will retain all documents not returned to the instructing solicitor for 7 years from the date of my final account for the matter and, after that, the documents will be destroyed. Destruction will be carried out by contractors equipped to deal with sensitive material. If I am requested to provide information from the materials I have retained, I will use my best endeavours to locate it, but a fee will be charged to cover the costs of my staff locating, copying and supplying the requested material or attempting to do so if it cannot be found. Should I terminate my practice I will use my best endeavours to return all documents held by me at that point but will otherwise have all retained documents either destroyed or transferred to any successor to my practice.

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. LIMITATION OF LIABILITY

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:

(a) Loss or damage however suffered by any person other than the client;
(b) Loss or damage however suffered caused by inadequate or late instructions;
(c) Any indirect or consequential loss, however suffered.

8. LAWYERS FIDELITY FUND

8.1 The Lawyers’ Fidelity Fund does not provide cover for barristers sole as they do not hold client’s funds.

9. COMPLAINTS

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 complaints@lawsociety.org.nz or by using its website www.lawsociety.org.nz.

ACKNOWLEDGEMENT AND AGREEMENT TO TERMS

I acknowledge and agree that the above terms apply to instructions I have given to G D Clews, Barrister and that the terms continue to apply while those instructions or any extension of them are being dealt with by him.

 

_______________________________                            ________________________________

Instructing Solicitor                                          Client

Date    /    /2021                                               Date    /    /2021