STANDARD TERMS AND CONDITIONS OF ENGAGEMENT
AND PAYMENT OF JDLO PROFESSIONAL FEES
Introduction
John Dean and his staff ("JDLO") are pleased to be of assistance, and will always act in your best interests and hold in confidence all information about you. We will sincerely endeavour to achieve the best possible results for you. We will report to you on a regular basis by letter or by telephone as to the progress of matters about which you have instructed us. We are caring about clients’ results and will endeavour to deliver cost effective legal services.
1. General
1.1. These Standard Terms of Engagement and Conditions of Engagement and Payment of our Professional Fees (Terms) apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
1.2. We are entitled to change these Terms from time to time, in which case we will send you, or notify you by posting them on our web page: www.jdlo.co.nz, of our amended Terms.
1.3. Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.
2.1. Our duty of care is to you and not to any other person. We owe no liability to any other person, including for example any directors, shareholders, associated companies, employees or family members unless we expressly agree in writing. We do not accept any responsibility or liability whatsoever to any third parties who may be affected by our performance of the Services or who may rely on any advice we give, except as expressly agreed by us in writing.
2.2. Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.
2.3. Our advice is opinion only, based on the facts known to us and on our professional judgment, and is subject to any changes in the law after the date on which the advice is given. We are not liable for errors in, or omissions from, any information provided by third parties.
2.4. Unless otherwise agreed, we may communicate with you and with others by electronic means. We cannot guarantee that these communications will not be lost or affected for some reason beyond our reasonable control, and we will not be liable for any damage or loss caused thereby.
3.1. The services we are to provide for you are outlined in our letter of engagement along with any further instructions which you provide to us in writing, or which we record in writing. Where you complete our Confidential Client Information Form on line that and related communications will be our letter of engagement - collectively called our retainer agreement.
4.1 We will obtain from you contact details, including email address, postal address and telephone numbers. We may provide documents and other communications to you by email, or other electronic means. You will advise us if any of your contact details change.
4.2. We will report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken. You may request a progress report at any time.
4.3. You agree that we may provide you from time to time with other information that may be relevant to you, such as newsletters and information bulletins. At any time you may request that this not be sent to you.
5.1. Confidence:
We will hold in confidence all information concerning you or your affairs which we acquire during the course of acting for you. We will not disclose any of this information to any other person except:
5.1.1. to the extent necessary or desirable to enable us to carry out your instructions; or
5.1.2. as expressly or impliedly agreed by you; or
5.1.3. as necessary to protect our interests in respect of any complaint or dispute; or
5.1.4. to the extent required or permitted by law.
5.2. 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.
5.3. Personal Information and Privacy:
In our dealings with you we will collect and hold personal information about you. We will use that information to carry out the Services and to make contact with you about issues we believe may be of interest to you. Provision of personal information is voluntary but if you do not provide full information this may impact on our ability to provide the Services.
5.4. Subject to clause 5.1, you authorise us to disclose, in the normal course of performing the Services, such personal information to third parties for the purpose of providing the Services and any other purposes set out in these Terms.
5.5. We may disclose your name and address to third parties such as credit agencies to perform a credit reference or to undertake credit management or collection processes if it is reasonable to do so. You authorise us to make any credit reference or and other enquiries JDLO may deem necessary in terms of this retainer.
5.6. The information we collect and hold about you will be kept at our offices and/or at secure file storage sites elsewhere, including electronic file storage sites. If you are an individual, you have the right to access and correct this information. If you require access, please contact us.
5.7. Verification of Identity:
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 client verification checks as to your identity and checks as to the source of any funds associated with any transaction to which the Services relate as we consider to be required by law.
6.1. 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.
7.1. You may terminate our retainer at any time.
7.2. 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, including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.
7.3. If our retainer is terminated you must pay us all fees, disbursements and expenses due up to the date of termination. You will be billed to the date of termination and for any costs of transferring files and documents to any other entity.
8.1. We will keep a record of all important documents which we receive or create on your behalf on the following basis:
8.1.1. 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.
8.1.2. 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.
8.1.3. 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.
8.2. 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.
8.3. Where we hold documents which 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.
8.4. 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 paper and electronic records, all files and documents in respect of the Services seven years after our engagement ends. This does not include any documents which 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.
8.5. 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.
8.5.1. If we contact you at your last advised address about returning documents to you and you do not respond within 15 working days you authorise us and consent to us, without further reference to you, to destroy or delete, in the case of paper and electronic records, all files and documents in respect of the Services.
8.5.2. If you tell us you do not want your documents you authorise us act as set out in clause 8.5.1.
8.6. We own copyright in all documents or work we create in the course of performing the 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.
9.1. We may be instructed or required to arrange insurance or investments on behalf of clients. Payment of commission or brokerage may be made to us by the entity with whom the insurance cover or investment is placed.
10. Trust Account
10.1. 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 5% of the interest derived.
11. Financial
11.1. Fees
11.1.1. We are happy to discuss the likely costs of undertaking work on behalf of our clients. Our fees are currently charged on a blended rate from $50.00 per hour to $400.00 per hour plus GST. The difference in the rates reflect the experience and specialisation of JDLO members. Time spent is recorded in six minute units, with time rounded up to the next unit of six minutes.
11.1.2. We may require you to pay fees and disbursements in advance.
11.1.3. There are a number of different factors which may determine the final fees which we charge for work undertaken, therefore only an estimate of fees can be given, except in special circumstances. The factors which determine the final fee include:
( i) The time and labour expended;
(ii) The skill, specialised knowledge, and responsibility required to perform the services properly;
(iii) The importance of the matter to the client and the results achieved;
(iv) The urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client;
(v) The degree of risk assumed by JDLO in undertaking the services, including the amount or value of any property involved;
(vi) The complexity of the matter and the difficulty or novelty of the questions involved;
(vii) JDLO’s experience, reputation, and ability;
(viii) The possibility that the acceptance of the particular retainer will prelude engagement of JDLO by other clients;
(ix) Whether the fee is fixed or conditional (whether in litigation or otherwise);
(x) Any quote or estimate of fees given by JDLO;
(x) Any fee agreement (including a conditional fee agreement) entered into between JDLO and the client;
(xii) The reasonable costs of running a practice;
(xiii) The fee customarily charged in the market and locality for similar legal services.
11.1.4. The successful completion of a transaction which has taken account of one or more of the above principles of charging may result in a fee uplift.
Member(s), shareholder(s), officer(s) of any entity incorporated or non-incorporated association(s) for which JDLO undertakes any work are jointly and severally liable to meet payment of JDLO fees and disbursements. The undersigned party/parties acknowledge their liability to pay JDLO and agree to the terms of this retainer.
11.3. Disbursements & Third Party Expenses
In providing the Services we may incur disbursements and payments to third parties on your behalf. You authorise us to incur these disbursements which are reasonably necessary to provide the Services. These may include items such as search fees, court filing fees, registration fees and travel and courier charges. You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the Services. These 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. We cannot undertake to pay any disbursements on your behalf where we are not holding funds, and we cannot accept any responsibility for the consequences of not making such payments.
11.4. Office Service Charge Fee (administrative expenses)
In addition to disbursements, we may charge administrative expenses, being an office services and bureau fee of $50.00, or such other reasonable sum, 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 tolls, cellphone calls and texts, faxes, photostats, digital communications and document scanning, web server or “cloud” storage; and other like disbursements.
We also may charge an electronic fee of $30.00 or such other reasonable sum in respect of conveyancing transactions.
Conveyancing: Payment in full on settlement, with costs usually being paid by deduction from moneys held on behalf of the client.
Business Transactions: For matters continuing over an extended period of time clients will be billed on a monthly or bimonthly basis.
Litigation and Tribunal Matters: These matters will be generally billed on a monthly or bimonthly basis. Where we brief counsel on a client’s behalf we will generally require payment of counsel’s fee to be paid immediately, or by further arrangement.
You authorise us to deduct all fees and disbursements from any funds held on your behalf in our Trust Account for any matter, even if unrelated to the bill rendered by JDLO, and in respect of which we have rendered invoices prior to this date and in the future.
Legal Aid:
If an application is made to Legal aid to fund a client's legal services then Legal Aid will pay us for the services we undertake. If such funding is not obtained or is withdrawn at any time the client will be liable to pay us our costs and disbursements.
Agreed monthly instalments can be paid based on an advance estimate of fees. That is, an invoice will be issued at the end of the assignment showing the balance to be paid or refund required to be made to the client.
A lump sum fee paid in advance in addition to disbursements. On completion of an assignment a bill will be issued for any balance due which is then payable within 30 days.
We will always make reasonable arrangements to suit clients’ particular circumstances and will discuss any specific requirements including conditional or contingency arrangements.
You will appreciate that JDLO expects to get paid for work undertaken on clients’ behalf from the date of your initial instructions, which may predate this retainer. Payment may be made by cash, direct or automatic payment. JDLO will charge interest on accounts which remain unpaid one month from the date of issue at the rate of 2% per month or part thereof.
If costs are not paid in full by the due date which, unless otherwise stated, is one month after the date of the invoice, you will be liable to pay all JDLO office and/or legal costs of recovery on a solicitor–client basis, including issuing legal proceedings; and John Dean Law Office may take security over any of your property on account of outstanding costs. Until payment of all amounts owing to JDLO is made in full, JDLO may retain all your files and documents. JDLO may assign the debt at any time after it is due for payment.
12.1. To the extent permitted by law:
12.1.1. Our aggregate liability, together with and including that of our partners, consultants and employees, in respect of all causes of action and claims, whether in contract, tort or otherwise, arising in connection with, or in relation to, our engagement is limited to NZ$1,000,000.00;
12.1.2. We shall not be liable, whether in contract, tort or otherwise, for any loss (whether direct or indirect) of profits, business, anticipated savings or other economic loss or for any indirect, special or consequential loss, even if we were or should have been aware of the likelihood of such loss; and
12.1.3. You may not bring any action against us, regardless of form, more than one year after the cause of action has arisen
13.1 New Zealand passed a law called the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (we will call it the “AML/CFT Act”). The purpose of the law reflects New Zealand’s commitment to the international initiative to counter the impact which criminal activity has on people and economies within the global community. From 1 July 2018, lawyers are required to comply with its requirements. The AML/CFT Act requires this because the services our firm offers are determined to be a risk for the purposes of the Act.
13.2 Lawyers must obtain and verify information from prospective and existing clients about a range of matters. This is part of what the AML/CFT Act calls “client due diligence” (“CDD”).
13.3 CDD requires us to collect certain information from you, and we must collect all required documents before we can provide services to clients. We must take reasonable steps to make sure to check the information received is correct, and this may require more documents. We have outlined below, documents which are required for each type of entity which wants to retain our services.
Source of funds and Source of wealth 13.4 In all instances, we must understand the nature and purpose of our retainer. This extends to what we may not understand, and in some cases it may not always be apparent. For Trusts, we are required to collect financial information relating to the trust assets (source of wealth) and funds for certain transactions (source of funds). This is called Enhanced Due Diligence. Each client type (individuals, companies, and partnerships) may also qualify for Enhanced Due Diligence depending on the circumstances.
13.5 We use a third party, Realyou Limited, known as “RealAML”, to undertake much of this due diligence for us. By signing this Terms of Engagement, you agree to us using RealAML to verify your identity and undertake Due Diligence where appropriate.
15. AML/CFT Privacy Statement
15.1 We are subject to the Privacy Act 2020 (“Privacy Act”) and we are committed to ensuring that your privacy is protected. The information which is collected in accordance with AML/CFT Act is managed and collected in accordance with the Privacy Act but governed by our obligations under the AML/CFT Act.
15.2 We will collect information directly from the entity concerned. In addition:
15.2.1 We will retain such information for a period of seven years, after the business relationship has ended. Once seven years has passed, we will arrange for the safe destruction of any electronic and paper based records.
15.2.2 We will store such information through the Realyou Limited (RealAML) dashboard, and also through our own internal systems.
15.2.3 We provide access to such personal information collected from you, and provide an allowance for the correction of any information held which is factually incorrect. We will not provide access to information which may prejudice obligations under the AML/CFT Act; and
15.2.4 We will disclose personal information which may be required to uphold, or enforce the law or otherwise in accordance with the AML/CFT Act or Privacy Act.
15.3 We will use the information pursuant to our obligations under the AML/CFT Act. We will also, in relation to identification information and documentation obtained in accordance with the AML/CFT Act:
15.3.1 Electronically verify any identity (and address) information provided, by a third party identification platform, RealAML.
15.3.2 Permit RealAML to store personally identifiable information (PII) encrypted on Amazon Web Services (AWS) in Sydney, Australia..
15.3.3 We will use personal information such as names, dates of birth, nationalities, and sex to determine if there are any matches on global sanctions registers, or connections to being a politically exposed person.
13.1. Attached as part of these Terms are JDLO’s Client Care Rules.
Acknowledged and agreed:
Signed:
Full Name(s):
Signed:
Full Name(s):
Dated:
jdlo updated as at 12-02-22
2. Duty of Care
3. Services (“the Services”)
4. Communications
5. Confidentiality and Personal Information
6. Conflict of Interest
7. Termination
8. Documents, Records and Information
9. Insurance and Investments
11.2. Corporate Clients
11.5. Terms of Payment of Fees, Disbursements and Office Services Charges
11.6. Other Payment Options
11.7. Flexibility
11.8. Conditions of Payment
12. Limitations On Extent Of Our Obligations Or Liability
13. The AML/CFT Act
Individual(s)
Identification - passport or driver licence
Bank statement showing your address - dated within the last three months
Information as the nature and reason for using our services
Company
Company extract - detailing Directors and shareholders
Identification - passport or driver licence for each Director and shareholder with 25%+ shares
Bank statement for each Director and Shareholder showing address - dated within the last three months
Trust
Trust Deed
Identification - passport or driver licence for the Settlor(s) and each trustee and each beneficiary
Bank statement for each Settlor(s) and each trustee and each beneficiary showing address - dated within the last three months
Partnership
Partnership Deed or Agreement
Identification - passport or driver licence for each Partner; each Investor
Bank statement for each Partner and each Investor showing address - dated within the last three months
16. Client Care Rules for JDLO Clients