Set out below is the information required by the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society (“Law Society”); and our Standard Terms of Engagement.

These Standard Terms of Engagement (“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, we will notify you of any substantial changes. Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.

By instructing us to provide you with legal services, you are deemed to have accepted these terms.

Services

We will provide you with the legal services that you request or that we agree on, unless a conflict of interest or other factors prevent us from doing so. If this is the case, we will contact you immediately.

We will use due care and skill and will act in accordance with your instructions subject to any ethical and/or legal duties.

We provide our advice to you and only you. Other people or entities (including those closely associated with you) who want to rely or act on our advice can do so only if we both agree in writing.

Conflicts of Interest

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.

Persons Responsible for the Work

A particular director or staff member may be responsible for your matter, or you may have requested a particular director or staff member. Generally, that person will work with you, however, they may also work with other directors and staff on your matter.  You will be advised who will be responsible for your work in our letter of engagement.

In order to provide you with efficient advice and services and to provide the most cost-effective service, it may be that part, or all of your instructions will be delegated to other professionals in our firm.

Duty of Care

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.

Client Care and Service

The Law Society client care and service information is set out below.

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.
• Give you clear information and advice.
• Protect your privacy and ensure appropriate confidentiality.
• Treat you fairly, respectfully and without discrimination.
• Charge you a fee that is fair and reasonable and let you know how and when you will be billed.
• 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 (the rules). 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 lawsociety.org.nz or call 0800 261 801.

Privacy

BMC Lawyers has a Privacy Policy that sets out the Firms policy on the collection and use of personal information.  This applies to the Lawyer – Client relationship and our website.  It can be viewed here

How Do We Bill?

We will issue you regular accounts (usually monthly) unless otherwise agreed, and on completion of the matter, or termination of our engagement.

We may also send you an invoice when we incur a significant expense.

Our fees are charged for the provision of professional services; therefore, payment is not contingent on the matter being completed, or on the result obtained.

Fees

The basis on which fees will be charged and when payment of fees is to be made is set out in our terms of engagement. If we hold funds on your behalf, you authorise us to deduct our fees from those funds (unless they have been provided for a particular purpose) and send you an invoice as required by the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.

If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of our services. Work which falls outside that scope will be additional to the agreed fixed fee.  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.

In setting our fees, we take into account a number of factors including the following:

• • • the time and labour expended including time spent investigating the facts and researching the law;
    • the skill, experience, specialised knowledge, and responsibility required to perform the services properly;
    • the importance of the matter to you and the results achieved;
    • the urgency and circumstances in which the matter is undertaken, and any time limitations imposed, including those imposed by you;
    • the degree of risk assumed by us in undertaking the services, including the amount of value or any property involved;
    • the complexity of the matter and the difficulty or novelty of the questions involved;
    • the possibility that the acceptance of the particular retainer will preclude engagement by other clients;
    • whether the fee is fixed or conditional;
    • any quote or estimate of fees given by us;
    • any fee agreement (including a conditional fee agreement) entered into between us;
    • the reasonable costs of running a practice;
    • the fee customarily charged in the market and locality for similar legal services.

These factors are based on the Law Society’s Rules of Conduct and Client Care for Lawyers.

In addition to our fee an Administration Fee will be charged on every invoice to cover our office expenses such as photocopying, printing, stationary, facsimiles, telephone and other such expenses. When we are required to verify your identity pursuant to the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT) an AML fee will be charged.

Disbursements

We may incur expenses or disbursements during the course of our work for you.  These are costs that we pay directly on your behalf to third parties at costs and are expenses such as registration and filing costs, LandonLine fees, court charges, travel and accommodation costs and matters of a similar nature.

Disbursements also include payments made on your behalf such as fees of agents, experts and other professionals, and are charged at the amount charged to us. Where you have asked us to instruct outside counsel then you will, on demand, pay to us the fees billed to us by that outside counsel.

You authorise us to incur all expenses and to make payments to third parties for these expenses when they are reasonably necessary to provide our service to you.

We may require you to pay money to us in advance for anticipated disbursements or expenses.  If you do not after being requested to do so it may affect the services we can provide to you.

GST

You will also be charged GST at the current rate as required by law in addition to the fees agreed, estimated or rendered unless you are exempt for the purposes of GST.

Credit Enquiries

You authorise us to obtain and rely on credit reports from a credit reporting provider and to provide your personal information to that provider at any time for that purpose.  Where you are a limited liability company, this authority extends to the company and its directors.

Fees in Advance

We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. In such cases you authorise us to deduct from such funds any fees, expenses or disbursements for which we have provided an invoice.

Payment

Our invoices for fees, disbursements and expenses are to be paid without deduction strictly within 14 days of when they are sent to you.

For conveyancing matters, payment of our invoices is required on settlement of your transaction.

We accept payment of our accounts by direct credit, eftpos or credit card.  If you pay your account by credit card, we may charge you a payment fee.

Unpaid Accounts

If your account remains unpaid after thirty (30) days and there is no satisfactory explanation for non-payment we:

• will charge interest on the overdue amount at the rate of 14% per annum, calculated daily from the due date for payment.
• If you do not fully pay our accounts, we may refer your debt to a credit agency, debt recovery agent or commence recovery proceedings against you.   If this is necessary you shall reimburse us for all costs in recovering payment of the account(s), including our full in-house time and attendances on a solicitor/client basis, court costs and any other disbursements and any fees charged by a debt recovery agent/solicitor or more generally.
• may do no further work for you and will not release your papers and files until all accounts are paid.

Even if you expect another party to reimburse you for our fees and/or charges, we have no recourse to any person other than you, and so look to you for payment, even if reimbursement is delayed or you fail to get reimbursed.

Please contact us immediately if you have any concerns about your account.

Fees Paid by Deduction

Where we hold funds on your behalf in our Trust account you authorise us to deduct from such funds any fees, expenses or disbursements for which we have provided an invoice.

Trust Account

We maintain a trust account for all funds which we receive from clients (except monies received as 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, subject to your execution of the requisite FACTA forms.  In that case we will charge an administration fee of 5% of the interest derived.

Foreign Account Tax Compliance Act (FACTA)

Our Bank (ANZ) is required by law to obtain certain information about funds held in our Trust Account and advise the IRD, who in turn may exchange this information with overseas tax authorities.

You agree to supply any information requested to ensure full compliance with this legislation.

You agree and consent to us providing any information held by us in relation to your FACTA status or FACTA matters to the IRD and/or the ANZ Bank.

Verifying your Identity and Source of Funds

BMC Lawyers is a reporting entity under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT).  Under our compliance obligations we may be required to conduct customer due diligence on you, your beneficial owners (including persons with effective control) and any persons acting on your behalf.  This includes verifying your identity, address and in some cases, we may also be required to report on your Source of Wealth.

When due diligence is required, we use an external service provider, First AML to assist.  They will contact you via email or text message for this purpose.  An AML verification fee of $35.65 per individual is charged.  Additional charges apply for Trusts and Companies depending on the structure being used.  By agreeing to use our services you consent to the use of said external services.  You may withdraw this consent at any time.

Until this verification is completed, we may not be able to begin acting for you.  Further we must ensure this information and documentation remains current throughout the life of your retainer with us so we may ask you to update the information you have previously provided.

You authorise us to collect information about you to obtain, exchange, hold and use such information, and to make any enquiries we believe are appropriate to:

• • • Confirm information provided to us about you is true;
    • Undertake initial and on-going customer due diligence and monitoring in accordance with the Anti-Money Laundering and Countering Financing of Terrorism Act (AML/CFT Act).
    • Enforce debt and legal obligations (including recovery of money owed to us); and
    • Comply with other legal obligations we may have.

Termination of Engagement

At any time you can advise us to stop working for you.

At any time, and for any reason, you may withdraw your instructions to us or ask us to assign another professional staff member to your matter.  Please tell us immediately should you wish to do so.

If you do, you remain liable at that point for all fees and expenses we have incurred up to that date plus any and all costs in completing any matter that we, as your solicitors, are required to complete (for example, as required by the court or the Court Rules).

We may stop working for you

We reserve the right to suspend, terminate or cease acting for you if we find lawful cause, for instance, in the event that:

• You require us to act unlawfully, unethically or in breach of our professional obligations.
• You fail to give us adequate instructions.
• You unreasonably refuse to act in accordance with our advice.
• You indicate that you have lost confidence in us or this is clear to us.
• You fail to pay any of our accounts or monies requested in advance of legal work within the time required of you, or if or we believe that you will not meet the reasonable costs of the work being or to be undertaken.
• You lose legal capacity.
• A more than minimal risk of conflict of interest arises.

If your account(s) remain outstanding after 60 days, it is likely that no further work will be undertaken by our firm for you until arrangements acceptable to us are made with us to bring your account(s) back into good standing.

Confidentiality and Retention of Files and Documents

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:

• to the extent necessary or desirable to enable us to carry out your instructions; or
• 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 authorise us (without further reference to you) to destroy all files and documents for any matter (other than any documents that we hold in safe custody for you) 7 years after the matter is concluded, or earlier if we have converted those files and documents to an electronic format.

Documents and data will be stored electronically in a secure cloud storage facility. This includes copies of documents you have provided to us.  Original copies of documents may not therefore be retained.  You agree to this and you accept you must tell us if you require retention of a particular document.

Our cloud-based computer system uses Microsoft Azure to securely store our data. Microsoft Azure was chosen for its world-class data security protocols, including encryption, access control and continuous security monitoring. Data is stored primarily in Datacentres in New Zealand, Australia, and the United States.

Should you wish to uplift a file we have for you, you may do so providing all costs in relation to that file are paid in full.  You will need to give us reasonable notice before collecting your file should you wish to do so.  You agree our files and records may contain documents, records and information that belong to you, documents and records that belong to us, and documents or information in which third parties may have rights or interests.

Upon request and subject to applicable law and our professional obligations, we will provide you with copies of documents and records to which you are entitled.  Drafts of documents, file notes, internal firm correspondence, memoranda and financial records that we prepare while working on your file shall be property of, and for the benefit of, our firm and shall not be provided to you upon file request or otherwise unless we expressly agree to the contrary.

You acknowledge that, to the extent permitted by law, we may exercise a solicitor’s lien or any other right of retention over documents or property in our possession in respect of any unpaid fees, disbursements or other amounts owing to us.

Nothing in this clause permits us to retain or withhold funds held in trust for you except where authorised by law, by your instructions, or pursuant to our right to deduct fees and disbursements in accordance with our terms of engagement and applicable trust account requirements.

Upon termination of our retainer, we may retain copies of all documents, correspondence, records and file materials in accordance with our legal, regulatory and professional obligations.

Professional Indemnity Insurance

We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the Law Society. We will provide you with particulars of the minimum standards upon request.

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 $100,000.00.  Except in certain circumstances specified in the Lawyers & Conveyancers 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.

Scope of Duty – Legal Services ordinarily acquired for personal or domestic purposes

The service which we agree to provide to you relates only to the particular matter in respect of which you engage us (the engagement).

Where the engagement includes the giving of legal advice, this advice is an opinion only, based on the facts known to us and on our professional judgment. We will not be liable where we reasonably base our advice on information given by others, which turns out to be wrong, or the state of the law, which subsequently changes.

Once the matter in respect of which we were engaged is at an end, save for legal duties which may subsist beyond expiration of the contract of retainer as a matter of law, we will not owe you any duty or liability in respect of any other matter, even if related, unless you specifically engage us in respect of those related or other matters.

Our duty of care is to you, as the party by whom we have been engaged, and not to any other person, including (for example, but without limitation) any directors, shareholders, associated companies, employees or family members, unless we expressly agree in writing. Except as expressly agreed by us in writing, we do not accept any responsibility or liability whatsoever to any third parties who may be affected by the performance of the engagement or who may rely on any advice we give to you.

Any advice given by us is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.

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.

Limitation of Liability – Legal Services ordinarily acquired for personal or domestic purposes but you (the client) is ‘in trade’

For the purposes of the Consumer Guarantees Act 1993 (the Act), or any equivalent legislation subsequently enacted, you acknowledge and agree:

You are in trade; and

The legal services to be provided under the engagement are acquired by you in trade and/or for business purposes; and

You accept that the provisions of the engagement, including the liability cap set out below, are fair and reasonable in light of the subject matter of the engagement.

You agree to contract out of the provisions of the Act as set out below and to the extent permitted by law and subject to the court’s determination pursuant to s43(2A) of the Act; and

You are free to negotiate the terms of the engagement with us, were not required to accept or reject the terms of engagement without us being willing to negotiate, you understand the effect of the terms of the engagement, and were free to take legal advice, independent of us, on the effect of the engagement.

To the extent permitted by law, you agree that our total liability to you in connection with this matter, or on any related matters on which you engage us, shall not exceed the sum of $600,000.00 (the liability cap) (including interest, costs, and all losses whatsoever).

The liability cap will apply to any liability of whatever kind, howsoever arising, whether in contract, in tort (including negligence), statutory, in equity or otherwise.

If we provide any service to any persons or entities related to or associated with you or to anyone else at your request (whether or not we also advise you) on a matter or series of related matters then our aggregate liability to you and all those persons and entities in respect of that matter (or series of related matters) will be subject to the liability cap. You will ensure that those persons or entities agree to this.

The liability cap will accrue to the benefit of any partner, employee, or agent of ours who may have acted in connection with the matter, so that in no instance shall the liability of any person, and all persons claimed against in the aggregate, be for more than the liability cap.

Limitation of Liability – Legal Services are not ordinarily acquired for personal or domestic purposes

You acknowledge and agree that the engagement is for the commercial or business purposes, and the services to be provided are not ordinarily acquired for personal or domestic purposes.

To the extent permitted by law, you agree that our total liability to you in connection with this matter, or on any related matters on which you engage us, shall not exceed the sum of $600,000.00 (the liability cap) (including interest, costs, and all losses whatsoever).

The liability cap will apply to any liability of whatever kind, howsoever arising, whether in contract, in tort (including negligence), statutory, in equity or otherwise.

If we provide any service to any persons or entities related to or associated with you or to anyone else at your request (whether or not we also advise you) on a matter or series of related matters, then our aggregate liability to you and all those persons and entities in respect of that matter (or series of related matters) will be subject to the liability cap. You will ensure that those persons or entities agree to this.

The liability cap will accrue to the benefit of any partner, employee, or agent of ours who may have acted in connection with the matter, so that in no instance shall the liability of any person, and all persons claimed against in the aggregate, be liable for more than the liability cap.

Complaints

We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly. If you have a complaint about our services or charges, you may refer your complaint to the person in our firm who has overall responsibility for your work.

If you do not wish to refer your complaint to that person, or you are not satisfied with that person’s response to your complaint, you may refer your complaint to our Chief Executive Officer.

The New Zealand Law Society also maintains a complaints service. You can contact the Lawyers Complaints Service on 0800 261-801 or by mail to complaints@lawsociety.org.nz or by completing the complaints form that can be found at NZLS | How to make a complaint

General

We value feedback, positive or negative. Please do not hesitate to contact us if you have any comments or questions about these terms or any related matters.  Please send your feedback to the relevant Principal or to our Chief Executive Officer at P.O. Box 140, Paraparaumu.

Telephone calls may be recorded for training and quality assurance purposes.  Any recording or transcript of a telephone call are solicitors notes and remain the sole property of BMC Lawyers.

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 NZLS | The New Zealand Law Society Te Kāhui Ture o Aotearoa

We may update our Terms and Conditions from time to time to reflect changes in laws, technology, or how we operate. When we do, the updated version will be published on our website and will take effect from the date it is posted, and your engagement with us will then be subject to the new terms and conditions.