Our Terms of Engagement

RMFS/Our Terms Of Engagement

Our Terms of Engagement

Introduction

These terms of engagement apply to all current and future work we do for you, unless we agree alternative terms with you in writing.  If you disagree with any of these terms, or have any questions, please let us know.  Otherwise, we will take your continued instructions as your acceptance of these terms.  We are entitled to change these terms from time to time, in which case we will send you amended terms.

Before an engagement, we will also provide in writing our understanding of the legal services you are requesting.  Please refer to our letter of engagement.

Client care and service information

We are committed to complying with the New Zealand Law Society’s Rules of Conduct and Client Care for Lawyers (Rules).  The following statement describes some of our professional responsibilities to you:

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; and
    • 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.  Those obligations are subject to overriding duties, including duties to the courts and to the justice system.  If you have any questions, please visit www.lawsociety.org.nz or call the New Zealand Law Society on 0800 261 801.

Professional indemnity insurance and Lawyers’ Fidelity Fund

We hold professional indemnity insurance that exceeds the New Zealand Law Society’s minimum standards.  If you would like further information about our insurance, please ask.

The New Zealand Law Society operates a Lawyers’ Fidelity Fund to compensate clients who suffer theft of money or property entrusted to lawyers.  The Fund covers losses of up to NZ $100,000.00 per individual claimant.  It does not cover loss where you have instructed us to invest money on your behalf (subject to limited exceptions set out in the Lawyers and Conveyancers Act).

How we handle complaints

We have procedures to ensure that any complaints are dealt with promptly and fairly.  If for any reason you are not satisfied with our services, please contact the Partner responsible for your work, or our Practice Manager on +64 (03) 308 3191 or nerida.jemmett@rmfsilva.co.nz

The New Zealand Law Society also has a complaints service.  Matters may be directed to the Canterbury Westland branch of the New Zealand Law Society at 307 Durham Street, Christchurch 8013, by phone +64 (03) 366 9184, or by email canterbury-westland@lawsociety.org.nz

Our duty of care

Our duty of care is to you, the client named in our letter of engagement.  We do not owe any duty of care to any other person (such as family members, shareholders, directors, or related entities) unless we expressly agree in writing.

Your privacy and confidentiality

We will hold in strict confidence all information about you or your affairs that we acquire while working for you.  We will only disclose confidential information if it is necessary to carry out your instructions, or it is required by law or the New Zealand Law Society’s Rules.  You can view our full Privacy Policy at www.rmfsilva.co.nz

We may provide information we hold to the Inland Revenue Department or to our institutional banks if they request information to meet their Foreign Account Tax Compliance Act (FATCA) or OECD Common Reporting Standard (CRS) obligations.  We may receive such requests if you have overseas investments, shares, bank accounts, credit cards or property.

How we avoid conflicts of interest

When we work for you, we will always protect and promote your interests.  If a conflict of interest arises, we will advise you of this and tell you how we plan to deal with the conflict.  This may mean we may stop working for you, the other client, or both.

Scope of our work

We are not qualified to give:

    • investment advice. You should get that advice from a qualified financial advisor;
    • tax advice. You should get that advice from your accountant or tax advisor;
    • insurance advice. You should get that advice from your insurance broker; or
    • advice about foreign laws. We can help you to contact a lawyer in the other country.

Unless we agree to do so in writing, we will not:

    • remind you about dates (e.g. PPSR, lease, or consent expiry dates); or
    • update advice after it is given.

Electronic communications

We may communicate with you and others by electronic means.  While we have all reasonable precautions in place, we cannot guarantee that electronic communications will always be free from viruses or other defects, are secure, or will be received.  As such, we do not take any responsibility for loss arising from the corruption or non-delivery of electronic communications.

Files and documents (in all forms)

You own (although we own the copyright) all files and documents we create for you in the course of an engagement (e.g., letters and agreements).  We own all files and documents created for our own benefit or use (e.g., file notes and research).

We will retain all files and documents electronically for at least seven years after the completion of the matter.  We may destroy physical files and documents after that or earlier if they are duplicative or we have converted those files and documents to an electronic form.

If you give us a paper document, or we receive one on your behalf, you authorise us to destroy it after making an electronic copy of that document.

We will store original documents such as Wills and Powers of Attorney for you permanently, or until you uplift them.  We will not destroy documents we have agreed in writing to hold in safe custody for you.

You may uplift your files and documents provided all fees and expenses have been paid.  If you uplift your files or documents, we may retain copies for our own records.

How you can help us

You can help us by:

    • giving us clear instructions;
    • asking if there is anything you are not sure of;
    • telling us if you have any important time limits;
    • dealing promptly with any questions we have;
    • telling us if your contact details change; and
    • keeping in touch. Please ask if you are concerned about anything or do not hear from us when expected.

Anti-Money Laundering (AML)

We are required by law to collect certain customer due diligence (CDD) information about you, and others associated with you, as applicable.  This may include personal information and, in some circumstances, the source of your wealth or the source of funds for a transaction.

We may not be able to act or continue to act for you until this information has been collected.

We use a third-party service provider to collect and store CDD information and you authorise us to do this.  We will ensure the management and provision of information by the service provider is consistent with the Privacy Act 2020.

Our Fees and Office Services Charge

We will charge you fair and reasonable fees.

Unless we agree with you otherwise, our fees will be set in accordance with the factors set out in Part 7 of the Lawyers and Conveyancers Act (Conveyancing Practitioners: Conduct and Client Care) Rules 2008.  The factors are:

    • the time and labour expended;
    • the skill, specialised knowledge, and responsibility required to perform the services properly;
    • the importance of the matter to the client and the results achieved;
    • the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client;
    • the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved;
    • the complexity of the matter and the difficulty or novelty of the questions involved;
    • the experience, reputation, and ability of the lawyer;
    • the possibility that the acceptance of the particular arrangement will preclude engagement of the lawyer by other clients;
    • any quote or estimate of fees given by the lawyer;
    • the reasonable costs of running a practice; and
    • the fee customarily charged in the market and locality for similar regulated services.

We will provide you with our hourly rates (being one of the factors) on request.

We will give you an estimate of fees where practicable.  Special fee arrangements may be available for certain work (e.g. capped fees).  Any estimate or special fee arrangement for a job will be outlined in our letter of engagement. Any estimate is based on our experience with similar matters and is given as a guide only, not a fixed price quotation.

We will let you know where practicable, if our estimate is likely to be exceeded.

If you have any questions about our fees, please ask.

We may have to cover some other payments on your behalf, such as search fees, registration fees, travel costs, court fees, AML verifications, and agents’ fees (Disbursements).  You authorise us to incur these Disbursements.

We charge you a fee to cover office expenses (such as photocopying, printing, phone calls, faxing and file storage).  This will be included separately on our account to you.  The office expense fee is calculated as follows:

Our fee Office Expense Fee

(GST included)

$0 – $500                $75

$501 – $1,500         $95

$1,501 – $2,500     $145

$2,501 – $5,000    $175

$5,001 – $10,000  $275

> $10,001               $375

Should your transaction involve paying funds to or receiving funds from an international bank account, there will be a per transaction fee to cover the cost of AML/CFT recording and reporting requirements.

Fees, hourly rates, Office Services, and Disbursements may change from time to time without notice.

Unless we state otherwise, our fees, estimates, and hourly rates exclude GST, Office Services and Disbursements.  These will be charged in addition and be payable by you.

You may wish to apply for a grant of legal aid.  In the event that legal aid is not granted, you will be liable for our accounts charged, in accordance with these terms.

Guarantee

If you are a company or other incorporated entity, we may require personal guarantees from your directors, shareholders, or other officers.

Paying your account

We may issue accounts monthly, on completion of a job or the ending of our engagement.  We may also send you an account when we incur a significant expense.

Our accounts must be paid within 14 days of the date of invoice.

If you have any questions about an account, please contact us straight away.

Sometimes we may require you to pay fees, office expenses, and disbursements in advance.  If we do, we will hold your payment in our trust account and only deduct our fees, office expenses, and disbursements when we issue you an account.

If we hold funds in our trust account on your behalf (including any judgment, sale proceeds, settlement amount, or other money), you authorise us to deduct any fees, office expenses, or disbursements we have issued you an account for.

We may charge interest on unpaid overdue accounts at the rate of 1.5% per month calculated on a daily basis and charged monthly.  We may take action to recover unpaid accounts and charge you the cost of that recovery.

Any failure or delay by us to charge interest on an unpaid account or to exercise any of our other rights will not operate as a waiver of those rights.

If your account is overdue, we may:

    • stop work we are doing for you until our account is paid in full; and
    • require an additional payment of fees in advance or other security before starting work again.

At your request or with your approval, we may send our accounts to a third party to pay on your behalf.  You are still responsible for payment by the due date if the third party does not pay us.

Money handling procedures

We maintain a trust account for all funds we hold on behalf of clients (except funds we receive for payment of accounts).

If we hold funds on your behalf, we will deposit them in an interest-bearing deposit with a bank where reasonable and practicable.  You acknowledge that we cannot place your funds in an interest-bearing deposit if you have not provided us with any information we request relating to your FATCA and CRS status.  We are not responsible for obtaining the best interest rate available or for any loss of interest you suffer as a result of our failure or delay in placing your funds in an interest-bearing deposit.

Where you transfer funds to our trust account in a foreign currency, we will convert those funds into New Zealand dollars at the prevailing exchange rate offered by our bank.  We are not responsible for seeking or obtaining a better exchange rate.

If we hold a small value of funds on your behalf (less than NZ $20.00) and we are unable to contact you, you authorise us to pay the funds to a charity of our choice.

Limiting our liability to you

We limit our liability to you.  The maximum aggregate amount that we will have to pay you is the amount set by the New Zealand Law Society as the minimum standard for the indemnity limit on our professional indemnity insurance.  We will not have to pay you more than the minimum aggregate amount for anything caused by or resulting from anything we do or do not do, or delay in doing, whether or not it is contemplated or authorised by any agreement with you.

The limit in clause 17.1 applies to the extent permitted by law, whatever you are claiming for, and however liability arises or might arise if not for this clause (whether in contract, tort (including negligence), equity, or otherwise).

If you are more than one person (such as a couple or partnership), this maximum is the maximum combined amount that we will have to pay you together.

If you engage us to do work for the purposes of a business, you agree the Consumer Guarantees Act does not apply.  Otherwise, nothing in this clause 17 limits any rights you may have under the Consumer Guarantees Act.

We shall not be liable for any loss or liability caused or contributed to by inaccurate or incomplete information supplied by you or third parties (including public records and expert witnesses) or because you did not receive or read a communication we sent you.

We will not be liable to you for any loss of revenue or income, loss of profit, loss of opportunity or any indirect or consequential loss.

We will not be liable to you for any loss arising from cybercrime, including but not limited to email interception to or from us and/or tampering with bank account details.  Please call us to verify any bank account numbers before making any electronic payments to us.

Our advice is given only for your benefit and in your interest.  It is not to be relied on by third parties unless we agree in writing.

Ending our engagement

You may end our engagement at any time by giving us reasonable notice.  We may terminate our engagement in any of the circumstances set out in the Rules.  If our engagement is terminated, you must pay all fees for work done and all expenses incurred up to the time of termination.

Enforceability of these terms

The enforceability of these terms is not affected by:

    • the ending of our engagement; or
    • any changes to our partners or the incorporation of our firm.

New Zealand law applies

Our relationship is governed by New Zealand law and the New Zealand courts have exclusive jurisdiction.

Litigation

If the matter involves a dispute, it may be desirable to engage the services of a barrister to provide expert counsel and/or to appear in the Court proceedings. If we do so, we may ask you to enter into a separate fee agreement directly with that barrister.  If you are successful in obtaining an order for costs payable by other parties in the litigation, it will most likely be for an amount substantially less than the costs payable under this agreement and/or any separate agreement with a barrister.  If so, that will not affect your obligation to pay us as set out above.  It is also possible that the Court may make an order that you pay (part of) another party’s costs.  If so, those costs would be in addition to those payable to us under this agreement.

Client Privacy Statement

RMF Silva Limited is committed to protecting your privacy.  This privacy statement outlines how we collect, store, use and share your personal information.  For more information, please refer to our website to view our full Privacy Policy.

By submitting your details, you consent to the use of your personal information in accordance with this privacy statement.

What information do we collect?

We may collect personal information about you, either directly from you or from other parties and we may generate information about you when we carry out our business.

The types of personal information we collect about you may include:

    • contact information: your name, email address, postal address, physical address, phone number;
    • personal details: date of birth, your occupation;
    • details relating to your enquiry or use of any service offered by us;
    • technical information: information about the device used to access the website or other social media sites, such as IP address, browser type, time zone settings and mobile network information;
    • billing or purchase information; or
    • other information which assists us to provide our services to you.

What do we do with it?

We collect and use your personal information to provide the information and services that you request from us, and to provide you with information about other services we consider appropriate.

When necessary, we may use your information to:

    • engage third parties on your behalf;
    • invoice and make payments;
    • comply with our legal and regulatory obligations (including audit and reporting requirements; and AML/CFT compliance).
    • defend or enforce our rights – For example, to collect money owed to us.

Who do we share it with?

Besides our staff we may share this information with third parties who enable us to provide you with our services. These include but are not limited to:

    • your other professional advisers; and
    • our service providers such as IT consultants, auditors and external compliance reviewers, external dispute resolution services, debt collecting agencies, credit check agencies, external consultants, Barristers etc.

We will only share your personal information with third parties where it is necessary to help us do what we collected your information for, where it is required by law or where you give us authority to.

We require these third parties to adhere to our strict confidentiality requirements for handling personal information and we seek to ensure that they comply with the Privacy Act 2020.

Where do we store it?

We use third party service providers to store and backup the information we collect. We ensure that our service providers are subject to appropriate security and information handling arrangements and that the information stored or processed by them remains subject to confidentiality obligations.

We will provide you with our hourly rates (being one of the factors) on request.

What are my rights?

You do not have to provide information to us. If you choose not to provide necessary personal information when requested, we may be unable to provide certain information or services to you.

You have the right to ask for a copy of any personal information we hold about you, and to ask for it to be corrected if you think it is wrong.  If you have any questions about this privacy statement or you would like a copy of the information we hold on you, or to have it corrected, please contact us on:

Email:                    law@rmfsilva.co.nz;

Telephone:         +64 (03) 308 3191; or

Address:              Level 3, Somerset House, 161 Burnett Street, Ashburton.