1. Introduction
1.1 This document sets out the standard terms of engagement (“Terms”) and client care information for Martelli Yaqub Lawyers Limited (“MY Lawyers”) in relation to the provision of legal and related services to you (the “client”). Unless otherwise advised by us, the following terms shall apply to any current engagement and also to any future engagement, whether or not we send you another copy of them. These Terms include information which we are required to provide to you pursuant to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“Rules”) issued by the New Zealand Law Society. We may from time to time change the Terms (at our discretion), in which case we will provide you with a copy of the amended Terms.
1.2 Should you have any queries or comments with regards to these Terms please contact us: info@mylawyers.co.nz
2. Client Care and Service Information
2.1 Unless otherwise agreed by you, the client care information in connection with any matter is contained in the letter of engagement that we will send to you.
3. Conflict of interest
3.1 We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves as set out in the Rules. This may result in a situation arising where a conflict of interest may exist between us acting for you and another party.
3.2 In the event a conflict exists (whether perceived or actual), we have procedures in place that enable us to advise you of the conflict and the steps, requirements and procedures that are set out in the Rules. This may mean that we cannot act for you further in relation to a particular matter and we may (at our discretion) terminate the engagement.
3.3 If, we cease to act for you or have yet to be instructed by you on a matter, we may act for other parties (as clients) who may have interests that are adverse to your own, provided that:
- we do not hold confidential information belonging to you that is relevant to the matter; or
- we have taken steps to maintain the confidentiality of information which is relevant to you.
This will involve the establishment of an information barrier.
4. Client instructions and scope of our services
4.1 We will represent you and act in accordance with your instructions and any applicable professional or legal obligations.
4.2 The scope of our services will be set out in our letter of engagement that will also contain our understanding of your instructions to us and in the event that there is no formal letter of engagement for the matter the scope of our services in respect of the matter will be set out in correspondence between us (the “Letter of Engagement”).
4.3 We value identifying the clients needs and therefore should our understanding of your instructions require further clarity or do not align with the understanding that you may have, please contact us as soon as possible so that we may ensure that we are acting in accordance with your instructions and expectations.
4.4 In advising you we may rely on, or provide you with, information obtained from third parties (e.g., experts or witnesses or government agencies or registers). This information may not always be accurate and complete. We do not accept responsibility and will not be liable for any damage or loss caused by errors or omissions in information obtained from third parties
4.5 When your instructions on a matter are completed, our representation will end. We will advise you that the matter is completed and summarise what we have done since any previous report to you. We will only advise you further on issues arising from the matter (e.g., implementation and other dates, changes in relevant law or regulation or any post-transaction notifications) if you specifically engage us to do so.
4.6 We will only provide advice to you in accordance with the laws of New Zealand. In the event you instruct, and we agree to assist you in relation to matters governed by an overseas jurisdiction, we do so subject to your acknowledgement under these Terms that we do not accept any responsibility in relation to the advice provided regarding your legal position and or options in the overseas jurisdiction.
4.7 Following clause 4.5 above, other exclusions that we will not advise you on are in relation to the commercial and or financial viability of any matter or other non-legal matters. We will not be responsible for advising you as to taxation issues.
5. Duty of Care
5.1 Unless otherwise agreed in writing or required by law, our duties are owed to you (solely). If there are associated parties that wish to retain our services, they should do so by way of a separate engagement. Please note, we are obliged to conduct a conflict check in light of any new engagement of our services.
Examples of associated parties: any directors, shareholders, associated companies, employees, family members.
5.2 The provision of advice to you is solely for your benefit and in your interests. We will not be liable if any other party or parties wish to place reliance on such advice or may directly or indirectly be affected by our performance of the services that we provide for you.
5.3 Unless it is required by law, the advice that we provide to you may not be made available for use by any third party and you may not provide our advice to any local, territorial authority or government agency without our prior consent.
5.4 Our advice is strictly limited to the matters stated in it and does not apply by implication to any other matters.
6. Who will work with you?
6.1 A director of the firm will be charged with the responsibility of your matter and the delivery of services to you. In order to ensure that we provide our advice in the most efficient and timely manner, other personnel may also be involved in acting in your matter.
7. Confidentiality, Privacy and Personal Information
7.1 We will hold in confidence all information concerning you or your affairs that we acquire while acting for you. We will not disclose any confidential information obtained from you to any other person, and will not disclose to you any confidential information received from another client or prospective client, unless required by law or by the Rules (Chapter 8) and observe the terms under our Privacy Policy which is available upon request or alternatively can be viewed on our website www.mylawyers.co.nz.
7.2 We will not disclose any of this information to any other person except:
- to the extent necessary or desirable to enable us to carry out your instructions, including but not limited to the disclosure of your information to our contractors, agents, and other organisations (including parties in the matter, a court, law enforcement and government agencies); or
- as expressly or impliedly agreed by you; or
- as necessary to protect our interests in respect of any complaint or dispute; or
- to the extent required or permitted by law.
7.3 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.
7.4 On occasion, we may be required to collect, store, use and to disclose personal information in relation to other individuals associated with you, such as your employees, directors or other person(s) or entities associated and in connection with your matter and the scope of our engagement.
7.5 You authorise us to also use or disclose your personal information for the purposes associated with our business, including the provision of legal services, to obtain credit or other references, for the purposes of credit management and the collection of unpaid accounts, and to provide you with information which we reasonably believe may be of interest to you.
7.6 Pursuant to the provisions of the Privacy Act 2020, you have the right to request access to, and the correction of, the personal information that we hold in relation to you and any matters that we have acted in on your behalf. Please place such requests with either a director of the firm or to: info@mylawyers.co.nz.
8. Fees, invoices, payments and other charges
8.1 The basis upon which we will charge our fees is set out in our engagement letter. If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of the services.
8.2 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 of the agreed scope and, if requested, give you an estimate of the likely amount of the further costs.
8.3 Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake the work are set out in our engagement letter. Any differences in those rates reflect the different levels of experience and specialisation of our professional staff.
8.4 Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable to take into account matters such as specialised knowledge and experience in the matter, skills or responsibility required, the complexity, urgency, value, priority and importance of the services and overall results achieved. Full details of the relevant fee factors are set out in Rule 9 of the Rules.
8.5 You may request an estimate of our fee for undertaking the scope of services in relation to your matter at any time. If possible, we will provide you with an estimate (which may be a range between a minimum and a maximum amount or for a particular task or step). An estimate is not a quote. Any significant assumptions included in the estimate will be stated and you must tell us if those assumptions are wrong or change. We will inform you if we are likely to exceed the estimate by any substantial amount. Unless specified, an estimate is not to be regarded as a quotation and shall exclude GST, disbursements and expenses.
8.6 Upon request, we will also inform you periodically of the level of fees incurred or inform you when fees reach a specified level.
8.7 In providing our services we may incur disbursements and payments to third parties on your behalf. You authorise us to incur these disbursements (which may include such items such as search fees, court filing fees, registration fees and travel and courier charges) which are reasonably necessary to provide the Services. You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the services (which may include items such as experts’ costs or counsel’s fees). These will be included in our invoice to you, shown as “disbursements” when the expenses are incurred (or in advance when we know we will be incurring them on your behalf).
8.8 In addition to disbursements, we may charge a fee of up to 2.5% of our invoice, to cover out of pocket costs which are not included in our fee and which are not recorded as disbursements. These include items such as photocopying and printing, postage and phone calls.
8.9 Unless we state otherwise, our stated rates and any estimates of cost do not include goods and services tax (GST) and disbursements. GST is also a separate charge with our invoicing. as and when required by law.
8.10 In the event your instructions are not completed (for any number of reasons) and the engagement is terminated or at an end, we will be entitled to charge you for the work undertaken and costs incurred up to the time of termination.
8.11 In some circumstances, we may be required to incur additional time or expense following the completion or termination of a matter. We will charge for this in the normal way.
8.12 We may at times send interim invoices to you. This will depend on the nature of the matter (i.e. if the matter is to be invoiced on a particular date or at various stages during the matter), or otherwise on a monthly basis, and on completion of the matter, or termination of our engagement.
8.13 We may send you invoices more frequently when we incur a significant expense or undertake a significant amount of work over a shorter period of time. Please note:
- Invoices are payable within 14 days of the date of the invoice unless alternative arrangements have been made with us.
- You authorise us to deduct our fees and other expenses from funds held in our trust account on your behalf on provision of an invoice to you, unless those funds are held for a particular purpose.
- If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.
- If your account is overdue, we may:
- require interest to be paid on any amount which is more than 14 days overdue, calculated at the rate of 7.5 % above the overdraft rate that our firm’s main trading bank charges us for the period that the invoice is outstanding;
- stop work on any matters in respect of which we are providing services to you;
- require an additional payment of fees in advance or other security before recommencing work;
- recover from you in full any costs we incur (including on a solicitor/client basis) in seeking to recover the amounts from you, including our own fees and the fees of any collection agency.
8.14 In view of cyber security, we ask that you contact us to confirm our bank account details and that we are able to accept the manner by which you intend to make payment (i.e. direct credit, credit card etc).
8.15 We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. We may do this, on reasonable notice, at any time.
8.16 Although you may expect to be reimbursed by a third party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third party, you remain responsible for payment to us in accordance with these Terms if the third party fails to pay us
8.17 Depending on the nature of the matter and where our time and attendances align with our letter of engagement, we may (at our discretion) provide a short-form narration in our invoice to you, referring to the letter of engagement. Where you receive a short-form narration, upon request, you are entitled to a full narration and detailed breakdown of the time and attendances in connection with any invoice rendered by us in respect of your matter.
8.18 Please feel free to contact us to discuss any aspect of our fees and charges with you at any time.
9. Trust Accounting
9.1 We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account.
9.2 Payments out of the trust account will be made either to you or to others with your authority. Written authorisation from you (and if we are acting for more than one of you, from all of you) will be required when payment is to be made to a third party. Before making a payment to another account we may require verification of the account details by provision of (for example) a copy of a deposit slip, cheque or bank statement showing the account number, a signed authority from you including the bank account details, or a signed letter from the relevant financial institution providing bank account details.
9.3 A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided to you periodically and at any time upon your request.
9.4 Unless it is not reasonable or practicable to do so, or in the absence of express instructions from you, when we hold significant funds for you for more than a short period of time we will place them on call deposit with a bank registered under section 69 of the Reserve Bank of New Zealand Act 1989, subject to your having completed to the bank’s satisfaction any request for information relating to the deposit or certification required by the bank. Interest earned from call deposits, less withholding tax and an interest administration fee payable to us of 4% of the interest earned, will be credited to you. By placing money with us you agree we will have no liability however arising for the loss of any amounts deposited by us on your behalf in accordance with these payment procedures and conditions where the loss results from the act, neglect or default of a financial institution.
10. Electronic communications
10.1 With the provision of your personal information including without limitation to your email address and/or mobile phone number, you authorise and consent to us communicating with you and others by electronic means such as email, facsimile, text message and if absolutely necessary certain social media platforms such as Facebook or Instagram.
10.2 You acknowledge that:
- the methods of electronic communications are susceptible to hacking, spam, interference, interception or contain viruses or other defects (“Altered Communications”); and
- we do not accept responsibility for and will not be liable for any damage or loss caused in connection with, or as consequence of, the Altered Communications of an electronic communication.
10.3 If you have any doubts about the authenticity of any communication or document purportedly sent by us, please contact us immediately.
11. Files and documents
11.1 We will keep a record of all important documents which we receive or create on your behalf on the following basis:
- We may keep a record electronically and destroy originals (except where the existence of an original is legally important such as in the case of wills and deeds).
- At any time, we may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us.
- We are not obliged to retain documents or copies where you have requested that we provide them to you or to another person and we have done so, although we are entitled to retain copies for our own records if we wish to do so.
11.2 We may store your files, documents and personal information in any format we choose at our offices or at premises outside our offices, including the use of third parties such as storage facilities for data, online storage located within or outside New Zealand, which may be operated by independent service contractors. We do not accept responsibility and will not be liable for any damage or loss caused by third parties.
11.3 We will provide to you on request copies or originals (at our option) of all documents to which you are entitled under the Privacy Act 1993 or any other law. We may charge you our reasonable costs for doing this.
11.4 Where we hold documents that belong to a third party you will need to provide us with that party’s written authority to uplift or obtain a copy of that document.
11.5 Unless you instruct us in writing otherwise, you authorise us and consent to us (without further reference to you) to destroy (or delete in the case of electronic records) all files and documents in respect of our services 7 years after our engagement ends (other than any documents that we hold in safe custody for you or are otherwise obliged by law to retain for longer). We may retain documents for longer at our option.
11.6 We may, at our option, return documents (either in hard or electronic form) to you rather than retain them. If we choose to do this, we will do so at our expense.
11.7 We own copyright in all documents or work we create in the course of performing our services but grant you a non-exclusive licence to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
12. Anti-money laundering, FATCA, CRS and other laws
12.1 We are obliged to comply with all laws applicable to us in all jurisdictions, including but not limited to:
- anti-money laundering (AML) and countering financing of terrorism (CFT) laws; and
- laws relating to tax reporting and withholdings; and
- Financial Transactions Reporting Act 1996.
12.2 In order to meet our compliance obligations, we may be required to conduct customer due diligence on you, persons acting on your behalf, and other relevant persons such as your beneficial owners or persons who have effective control of you and (in the case of a trust) the beneficiaries of the trust.
12.3 The Financial Transactions Reporting Act 1996 requires us to collect from you and to retain information required to verify your identity. We may therefore ask you to show us documents verifying your identity (such as a passport or driver’s licence). We may retain copies of these documents. We may perform such other customer verification checks as to your identity and checks as to the source of any funds associated with any transaction to which our services relate as we consider to be required by law.
12.4 We may not be able to act or continue acting for you, or to complete trust account transactions for you, until this is completed.
12.5 We may be required to provide information about you, persons acting on your behalf, and other relevant persons as described above to government agencies. We may not be permitted to tell you or such persons if we do provide such information. We may also be required to provide such information to banks with which we place your funds through our trust account, and information provided to banks may in turn be passed on by them to tax and other regulatory authorities in New Zealand and offshore.
12.6 Please ensure that any of the persons described above in respect of whom we collect information are aware of and consent to this undertaking.
12.7 Please also ensure that all information provided to us is accurate. We are not responsible to you, or anyone else, for anything done or not done by us (including any provision of information by us to any third party or any withholdings made) in order to comply with our legal obligations.
13. Insurance
13.1 We confirm that we hold insurance cover which meets the requirements of the New Zealand Law Society.
14. Fidelity Fund
14.1 The Lawyers’ Fidelity Fund administered by the New Zealand Law Society gives you some protection against theft of your money, up to NZ$100,000, if it is held by us in our trust account or (subject to the qualification below) in an interest-bearing deposit account (either on call or for a fixed term).
14.2 Please note: The protection under the Fidelity Fund offered to you will not be applicable in instances where you have instructed us to invest your money in an investment that is excluded from cover by the Lawyers’ Fidelity Fund (such as the purchase of shares on a stock exchange, the deposit of funds for investment purposes or the purchase of an annuity).
15. Limitation of liability
15.1 To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our Services is limited to the amount available to be payable under the Professional Indemnity Insurance held by the firm.
16. Termination
16.1 Either we (for good cause) or you may terminate our engagement at any time by giving a reasonable period of notice. You will pay our fees for work done and for other charges incurred up to the time of termination.
16.2 The enforceability of this agreement is not affected by termination.
17. Complaints
17.1 If you have a complaint about our services, we ask that you elect one of the following options:
Contact the director charged with the overall responsibility for our services to you and lodge your complaints at:
Attention: Brett Martelli
(OR)
You may also contact the New Zealand Law Society – Lawyers Complaints Service:
Telephone: 0800 261 801
To lodge a concern: www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form
To make a formal complaint:
www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/how-to-make-a-complaint
Email: complaints@lawsociety.org.nz
Jurisdiction
These Terms and any other agreement we have with you are governed by the laws of New Zealand.
Client care and service information
Whatever legal services we provide you, we 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 obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers. 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 phone the New Zealand Law Society on 0800 261 801 or email inquiries@lawsociety.org.nz
Acceptance
These terms outline the terms upon which instructions are accepted, and apply to any current engagement and any future engagement, whether or not we send you another copy of them. Your instructions represent acceptance of these terms. We may unilaterally change these terms of engagement over time. You will be notified of any such changes. Our relationship with you is governed by New Zealand law and the New Zealand courts have exclusive jurisdiction.