FULCRUM LAW LIMITED – STANDARD TERMS OF ENGAGEMENT

1	General
	1.1	In these Terms, “we”, “us” and “the firm” means Fulcrum Law Limited, and “you” means our client.
	1.2	Except where we otherwise agree with you in writing, 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. You do not need to sign these Terms; you accept these Terms each time you instruct us on a new matter.
	1.3	We reserve the right to update these Terms from time to time. Any change we make applies from the date the updated Terms are posted on our website.
	1.4	Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
	1.5	You may not transfer or assign your rights or obligations under these terms or in relation to any engagement of us on any matter.
2	Services
	2.1	The services we are to provide for you (Services) are outlined in our engagement letter along with any further instructions that you provide to us in writing (or that we record in writing).
	2.2	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.
3	Electronic Services and Communications
	3.1	We will obtain from you contact details, including email addresses, postal address and telephone numbers. You will advise us if any of your contact details change.
	3.2	We may provide documents and other communications to you by email (or other electronic means). We do not accept responsibility for, and will not be liable for any damage or loss caused by, or in connection with, or as a consequence of:
		a	corruption, interference or interception of, or viruses or other defects in, any electronic communication;
		b	a legitimate email not being read by its intended recipient as a result of that email being blocked by an email security system.
	3.3	If you have any doubts about the authenticity of any communication or document purportedly sent by us, please contact us immediately.
	3.4	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.
	3.5	You agree that we may provide you from time to time with other information that may be relevant to you, such as legal updates, industry news and invitations to events that we consider may be useful to you. At any time you may request that this information not be sent to you.
4	Financial
	4.1	Fees:
		a	The basis upon which we will charge our fees is set out in our engagement letter.
		b	If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of the Services. 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.
		c	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.
		d	Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable to take into account matters such as the skill, specialised knowledge, and responsibility required to perform the Services properly, the importance of the matter to you and the results achieved, complexity, urgency, value and the possibility that the acceptance of the particular retainer will preclude engagement of us by other clients. Full details of the relevant fee factors are set out in Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules).
	4.2	Disbursements and Third Party Expenses:
		a	In providing the Services we may incur disbursements and payments to third parties on your behalf (which may include such items such as courier charges, search fees, registration and filing costs, court charges, travel and accommodation costs and fees of agents, experts and other professionals) which are reasonably necessary to provide the Services. You authorise us to incur these disbursements. You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the Services . 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).
		b	Where it is necessary to incur material disbursements in relation to our instructions, we will not normally incur those disbursements until we have received a payment from you in cleared funds on account of them.
		c	If we are asked to provide an undertaking on your behalf for the payment of a third party's costs or charges, we will only agree to give that undertaking if we have received from you in advance sufficient monies in cleared funds to discharge the liability under the undertaking in full (including any GST). We will retain the monies received from you until they are paid to the beneficiary of the undertaking in discharge of it, or we are otherwise released by that beneficiary from our obligations to them.
	4.3	GST: Our Services will usually attract Goods and Services Tax (GST). If this is the case, GST is payable by you on our fees and expenses.
	4.4	Invoices: We will send interim invoices to you, usually monthly, and on completion of the matter, or termination of our engagement. We may send you invoices more frequently when we incur a material expense or undertake a significant amount of work over a shorter period of time.
	4.5	Payment:
		a	Invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made by agreement with us.
		b	You authorise us to deduct our fees and 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.
		c	If your account is overdue we may:
			i	require interest to be paid on any amount which is more than 14 days overdue, calculated at the rate of 5% above the overdraft rate that our bank charges us for the period that the invoice is outstanding;
			ii	stop work on any matters in respect of which we are providing Services to you;
			iii	require an additional payment of fees and expenses in advance or other security before recommencing work;
			iv	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.
		d	Payment is to be made by direct credit to the bank account noted on our invoice.
	4.6	Fees and disbursements in advance: 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.
	4.7	Estimates: You may request an estimate of our fee for undertaking the Services 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 excludes GST, disbursements and expenses.
	4.8	Third Parties: 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 liable for payment to us in accordance with these Terms if the third party fails to pay us.
	4.9	Trust Accounting:
		a	We operate a trust account.
		b	All money received from you or on your behalf (other than payment of our invoices pursuant to clause 4.5(d)) will be held to your credit in our trust account.
		c	Payments into the trust account should be made in cleared funds if you wish us to make a payment using those funds within 5 working days of your deposit.
		d	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 from any other bank or financial institution.
		e	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. Where we receive an electronic communication from (or purported to be from) you and that communication includes a direction or request to transfer funds which we hold on your behalf, we may elect not to make that transfer until we have independently verified, to our satisfaction, that direction or request by means other than electronic communication. We will not be liable for any damage or loss caused by or connected with our refusal to act on any electronic communication comprising a direction or request to transfer funds where we have not been able to independently verify that direction or request to our satisfaction.
		f	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.
		g	Unless it is not reasonable or practicable to do so, or you expressly instruct otherwise, when we hold significant funds for you for more than a short period of time we will place them on call deposit with our bank (being 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 and your having provided to us either your IRD number or a copy of your interest withholding tax exemption certificate. Interest earned from call deposits, less withholding tax, will be credited to you. Otherwise your funds will be held in our trust account with our bank, which is not interest bearing. We are not responsible for seeking or obtaining a better interest rate from any other bank or financial institution at the time your funds are placed on interest bearing deposit, or for any loss of interest that you may suffer as a result of any delay in placing your funds on interest bearing deposit.
		h	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 bank or financial institution.
5	Confidentiality and Personal Information
	5.1	Confidence: We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person except:
		a	to the extent necessary or desirable to enable us to provide the Services or carry out your instructions; or
		b	as expressly or impliedly agreed by you; or
		c	as necessary to protect our interests in respect of any complaint or dispute; or
		d	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 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 matters 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. We will observe the provisions of our Privacy Policy which can be viewed on our website. You consent to us processing personal information in accordance with our Privacy Policy.
	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	The information we collect and hold about you will be kept at our offices and/or at data storage facilities or online storage located within or outside New Zealand, which may be operated by independent service contractors. 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. If you are an individual, you have the right to correct this information.
	5.6	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 customer 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.
	5.7	Compliance: Please refer to section 7 (Compliance) regarding information that may be required to be provided to third parties.
6	Documents, Records and Information
	6.1	We will keep a record of all important documents which we receive or create on your behalf on the following basis:
		a	We may keep a record electronically and destroy originals (except where the existence of an original is legally important).
		b	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.
		c	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 may to retain copies for our own records if we wish to do so.
	6.2	We may store your files, documents and personal information in any format we choose at our offices or at premises outside our offices, including data storage facilities or 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.
	6.3	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.
	6.4	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 electronic records) all files and documents in respect of the Services 6 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.
	6.5	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.
	6.6	We retain all intellectual property rights in all documents, advice or other materials 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 commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
7	Compliance
	7.1	We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):
		a	Anti-money laundering and countering financing of terrorism laws; and
		b	Laws relating to tax and client reporting and withholdings.
	7.2	We may be required to undertake customer due diligence on you, persons acting on your behalf and other relevant persons (such as beneficial owners and controlling persons) from time to time. We may not be able to begin acting, or to continue acting, for you until that is completed.
	7.3	To ensure our compliance and yours, we may be required to provide information about you, persons acting on your behalf or other relevant persons to third parties (such as government agencies). There may be circumstances where we are not able to tell you or such persons if we do provide 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 be in turn be passed on by them to tax and other regulatory authorities in New Zealand and in other jurisdictions.
	7.4	Please ensure that you and/or any of the persons described above in respect of whom we collect information are aware of and consent to this and to the provisions of our Privacy Policy which can be viewed on our website. It is important that you and/or any of the persons described above ensure that all information provided to us is accurate. If the information required is not provided, or considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement.
	7.5	We are not liable 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.
	7.6	By instructing us you confirm that you, persons acting on your behalf and other relevant persons are not, and have not at any time been, subject to any political, economic or financial sanctions, or any threat of political, economic or financial sanctions. You must inform us immediately if this position changes.
8	Conflicts of Interest
	8.1	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 we have a conflict of interest.
	8.2	We have procedures in place to identify and respond to conflicts of interest or potential 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 Rules. This may mean we cannot act for you further in a particular matter and we may terminate our engagement.
9	Duty of Care and Scope of Services
	9.1	Our client on any particular matter will be the party identified as such in the engagement letter we send on the matter or as otherwise agreed. Our duty of care is to our client and not to any other person. We owe no duty of care or liability to any other person, including for example any directors, shareholders, associated companies, partners, employees or 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.
	9.2	Our name and advice is not to be used in connection with any offering document, financial statement, or other public document or statement without our written consent.
	9.3	Our advice is strictly limited to the matters stated in it and does not apply by implication to any other matters.
	9.4	Our advice is opinion only, based on the facts known to us and on our professional judgement, 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.
	9.5	Our advice relates only to each particular matter in respect of which you engage us. Once that matter is at an end, we will not owe you any duty or liability in respect of any related or other matters unless you specifically engage us in respect of those related or other matters.
	9.6	We are only qualified to advise on New Zealand law. If we assist you in respect of matters governed by foreign law, we have no liability in relation to your legal position under that foreign law.
	9.7	We will not provide any advice on any tax matters, including the tax implications of any matter in respect of which we are acting for you.
	9.8	We do not give investment advice.
10	Professional Indemnity Insurance and Limitations on our Obligations or Liability
	10.1	We hold Professional Indemnity Insurance that meets or exceeds the minimum standards set by the New Zealand Law Society (Law Society).
	10.2	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.
11	Termination
	11.1	Where we rely on any instruction from you (for example, by giving an undertaking to a third party), you may not revoke that instruction. Otherwise, you may terminate our engagement at any time on any matter or matters by notice to us (no notice period is required).
	11.2	We may terminate our engagement in any of the circumstances set out in the Rules including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.
	11.3	If our engagement is terminated you must pay us all fees, disbursements and expenses incurred up to the date of termination.
	11.4	Your instructions will be deemed to have been completed, and our engagement terminated, at the conclusion of our work for you under that instruction, or 3 months from the last date that any work was recorded against the file (whichever is the earlier).
	11.5	If our engagement is terminated, we will have no further obligation to update you, advise you of any matter (including any subsequent change of law) or provide any further services to you. These Terms will otherwise continue to apply to the engagement notwithstanding its termination.
12	Law Society’s Client Care and Service Information
	12.1	The Law Society’s client care and service information is set out below.
	12.2	Whatever legal services your lawyer is providing, he or she must:
		a	act competently, in a timely way, and in accordance with instructions received and arrangements made;
		b	protect and promote your interests and act for you free from compromising influences or loyalties;
		c	discuss with you your objectives and how they should best be achieved;
		d	provide you with information about the work to be done, who will do it, and the way in which the services will be provided;
		e	charge you a fee that is fair and reasonable, and let you know how and when you will be billed;
		f	give you clear information and advice;
		g	protect your privacy and ensure appropriate confidentiality;
		h	treat you fairly, respectfully, and without discrimination;
		i	keep you informed about the work being done and advise you when it is completed;
		j	let you know how to make a complaint, and deal with any complaint promptly and fairly.
	12.3	The obligations lawyers owe to clients are described in the Rules. Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.
	12.4	If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.
13	Lawyers’ Fidelity Fund Coverage
	The Law Society maintains the Lawyers' Fidelity Fund for the purpose of providing clients of lawyers with protection against loss arising from theft by lawyers. The maximum amount to an individual claimant is limited to $100,000. Except in certain circumstances specified in the Lawyers and 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.
14	Feedback and Complaints
	14.1	Client satisfaction is one of our primary objectives and feedback from clients is helpful to us. If you would like to comment on any aspect of the service provided by us, including how we can improve our service, please contact the Director responsible for your business.
	14.2	If you have any concerns or complaints about our services, please raise them as soon as possible with the person to whom they relate. They will respond to your concerns as soon as possible. If you are not satisfied with the way that that person has dealt with your complaint, please raise the matter with the Director responsible for your business. We will inquire into your complaint and endeavour in good faith to resolve the matter with you in a way that is fair to all concerned.
	14.3	If you are not satisfied with the way we have dealt with your complaint the New Zealand Law Society has a complaints service to which you may refer the issue. You can call the 0800 number for guidance, lodge a concern or make a formal complaint. Matters may be directed to:
				Lawyers Complaints Service PO Box 5041 Wellington 6140 New Zealand Phone: 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: [email protected]

Last updated October 2024