These are our Letter and Standard Terms of Engagement as your solicitors. They apply to all services that we provide unless varied by written agreement. We will take your continued instructions as your acceptance of these terms so please ask us if you have any questions about them.
The following is the summary of the legal services we expect to be providing you:
Acting for you in respect of:
Your relationship with your lawyer needs to be one of trust, transparency and confidence. You are entitled to expect a high level of professional service from McMillan&Co. In turn, we need you to be clear and prompt with your instructions to and communication with us, and to honour the terms of our retainer. We have a “no surprises” approach in regard to our work for you, our communication, and our fees. We ask that you adopt the same approach and be open and transparent with us in all respects – if you have a problem, tell us; if you have a question, ask us.
Unless otherwise agreed by us in writing, our fees will be based on the amount of time spent by partners, solicitors and legal assistants on your file, based on the hourly rate applicable at the time, the seniority of the person dealing with the matter, its complexity, the degree of urgency required, the time spent, and the other principles of charging laid down by the New Zealand Law Society. Usually, the time spent on a file is recorded electronically.
Each partner, solicitor, legal executive or para-legal has an hourly billing rate based generally on his or her experience and any special expertise. At any time you may request the hourly rate of any partner, solicitor or legal assistant working on your file. We reserve the right to change those hourly rates from time to time.
Before commencing work on a matter, we shall be able to require an advance against fees, disbursements and other charges. This retainer will be deposited into our trust account, and it may be used to pay any invoice rendered by us or any disbursement on your behalf.
We will be entitled to ask you to make further retainer payments from time to time as the matter advances and if the earlier retainer payment has been used. Any remaining balance of the retainer will be returned to you upon the completion of our services.
4.3 We reserve the right to decline to act if there is a failure or delay in payment of any retainer requested. A non-payment of a retainer may also result in a delay in our undertaking of work or providing services for you, and it may result in our withdrawing our services and representation.
Our team: We will nominate an experienced senior lawyer – usually a partner – who will be responsible for our relationship with you. A partner or another experienced senior lawyer will also be responsible for each instruction you give us. They will involve others to assist as appropriate.
Our services: We will represent and advise you on legal matters in accordance with your instructions. We will work with you to ensure there is a clear understanding of the scope and timetable of each instruction.
We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the New Zealand Law Society.
The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 applies to lawyers, and may require us to undertake a “client due diligence” process before undertaking work for you. The Act requires us to verify your identity (regardless of how long we have acted for you or known you). If a Client Information Form is attached to this letter; please complete it and return it promptly together with any documents requested. See further information under “Statutory Compliance” in our Standard Terms and Conditions.
If you have a complaint about our services or charges, you may refer your complaint to either Sally McMillan or Simon Milne, who as the Firm’s Principals have overall responsibility for your work.
If we have been unable to resolve a complaint or concern you may contact:
The Lawyers Complaints Service; Phone: 0800 261 801; Website: www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form; Email: complaints@lawsociety.org.nz
The Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 specify:
Whatever legal services your lawyer is providing, he or she 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 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.
The rules also require us to provide information about the Lawyers Fidelity Fund:
The Law Society maintains the Lawyers Fidelity Fund for the purposes 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. Except in certain circumstances specified in the Lawyers and Conveyances 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.
To the maximum extent permitted by law:
Our total liability to you (or to any other person claiming through you, including any executor, assignee or nominee) whether in contract or any other legal ground, including negligence, howsoever arising out of your engagement of us on any matter, or series of related matters, will be limited to the greater of:
(a) three times the amount of our applicable fee charged (excluding office services charges, disbursements and GST); or
(b) the amount paid out under any relevant insurance policy held by us, up to a maximum of NZ$2million.
In no circumstances will we be liable to you for indirect consequential or special losses of any kind.
You may not commence any action against us more than one year after that cause of action has arisen.
If the information in this letter and the accompanying material is acceptable, please sign the attached copy of this letter where indicated and return it to us. You will be bound by these terms if after receipt of this letter you sign and return it to us, you orally advise us of your acceptance, or if you instruct us to proceed/continue to act for you. We look forward to working with you on this matter.
The services which we are to provide for you are outlined in our Letter of Engagement.
(a) The fees which we will charge or the manner in which they will be arrived at, are set out in our Letter of Engagement.
(b) If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of our service. Work which falls outside that scope will be charged on an hourly rate basis. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside the agreed scope and if requested, give you an estimate of the likely amount of the further costs.
(c) In accordance with the NZ Law Society Client Care Rules, we reserve the right to charge a premium over and above the fee calculated on an hourly rate, in cases of particular complexity, where matters are required to be dealt with urgently, or where there is a degree of risk assumed by us in undertaking the work for you.
(a) In providing services we may incur disbursements or have to make payments to third parties on your behalf. These will be included in our invoice to you when the expense is incurred. We may require an advance payment for the disbursements or expenses which we will be incurring on your behalf.
(b) We charge you fees to cover office expenses / file administration (such as photocopying, printing, phone calls, electronic and physical file storage). These will be included separately on our invoice to you.
GST (if any) is payable by you on our fees and charges.
We will send interim invoices to you, usually monthly and on completion of the matter, or termination of our engagement. We may also send you an invoice when we incur a significant expense.
Invoices are payable by 20th of the month following date of the invoice, unless alternative arrangements have been made with us. If you do not pay an invoice by the due date, we reserve the right to stop doing any further work for you and you agree that we may charge you daily interest at 15% pa on the amount owing until it is paid and our actual costs, on a solicitor-client basis, of any debt recovery proceedings.
You authorise us:
(a) to debit against amounts pre-paid by you; and
(b) to deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have provided an invoice or statement.
In the event that we have to refer an unpaid account to a debt collector for recovery, we may do so without further notice to you, and add any recovery costs to the amount of your unpaid account.
We may ask you to pre pay amounts to us, or to provide security for our fees and expenses.
Although you may expect to be reimbursed by a third party for our fees and expense, and although our invoices may at your request or with your approval be directed to a third party, nevertheless you remain responsible for payment to us if the third party fails to pay us.
We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person except:
(a) To the extent necessary or desirable to enable us to carry out your instructions; or
(b) To the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers.
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.
We will of course, not disclose to you confidential information which we have in relation to any other client.
You may terminate our retainer at any time.
We may terminate our retainer in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers.
If our retainer is terminated you must pay us all fees due up to the date of termination and all expenses incurred up to that date.
You authorise us (without further reference to you) to destroy all files and documents for this matter (other than any documents we hold in safe custody for you) 7 years after our engagement ends, or earlier if we have converted those files and documents to an electronic format.
We retain all ownership rights in all intellectual property of any kind created by us for you. You may not reproduce our intellectual property or provide it to a third party without our express consent.
If our engagement is terminated, we may retain copies of documents or records that are delivered to you or another lawyer.
We may communicate with you and others by electronic means, unless you instruct us not to. Electronic communications may be intercepted or corrupted. We do not accept responsibility for the corruption of an electronic communication and will not be liable for any connected damage or loss.
In providing our services to you, we may rely on information provided to us by third parties (e.g. government agencies, public registries, witnesses or experts). If the information provided by such sources is inaccurate or incomplete, we do not accept responsibility for any such errors or omissions and will not be liable for any connected damage or loss.
We have procedures in place to identify and respond to 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 Law Society’s Rules of Conduct and Client Care for Lawyers.
Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to this.
We are required by law to meet various statutory obligations which impact on our professional relationship with you, including (but not limited to), under the Privacy Act, Income Tax legislation, and under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (“AML/CFT Act”). Under the AML/CFT Act we are required to obtain information about your identity (and where an entity is instructing us the identity of individuals associated with that entity) including your full name and date of birth (passport, driver’s license, birth certificate), and your address (copy of a utility or rates bill addressed to you).
If we are not able to collect and verify the required information we will not be able to act for you.
We maintain a trust account for all funds which we receive from clients (except monies received for payment of our invoices). If we are holding significant funds on your behalf we will normally lodge those funds on interest bearing deposit with a bank. In that case we will charge an administration fee of 10% of the interest derived.
These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
We are entitled to change these Terms from time to time.
Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.
“McMillan&Co. incorporates the practices of David Polson, Roger Barrowclough, Gerald Wilson, Joss Miller and McKinnon Aitken Martin.”
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