These Standard Terms of Engagement ("Terms") apply in respect of all work carried out by us (ie James Gavin Donovan Solicitors – Pukekohe t/a Blackhawk Law and our staff) for you, except to the extent that you and James Gavin Donovan Solicitors – Pukekohe t/a Blackhawk Law otherwise agree in writing.
The services to be provided for you are or will be outlined in our engagement letter.
We will be responsible for providing legal advice to you. We do not provide taxation or financial advice, though we may arrange third party experts to do so if requested.
At the outset of a matter we will inform you of the names and status of the people in our firm who will have the general carriage of or overall responsibility for the services we provide.
Any advice given by us may not be relied on by any other person unless we agree to that in writing.
Our name and advice may not be used in connection with any public document without our written consent.
When our instructions on a matter are completed our representation of you will end. We will not be obliged to:
• notify you of any subsequent change of law; or
• provide any further services related to that matter.
We will hold in confidence all information concerning you and your affairs. 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 Conduct and Client Care Rules 2008.
• In compliance with our FATCA obligations.
We will of course, not disclose to your confidential information which we have in relation to any other client.
We will comply with the NZLS Rules in respect of conflicts of interest.
Please inform us as soon as possible in the event you believe that we have a conflict of interest or that a conflict of interest may arise.
Unless a disqualifying conflict of interest exists, our acting for you will not restrict us from acting for another client in relation to any separate matter, even if that other client's interests may be adverse to yours.
The fees to be charged or the manner in which they will be arrived at are set out in our engagement letter. If the engagement letter specifies a fixed fee then that is what will be charged. Work which falls outside that scope will be charged on an hourly rate basis. We will let you know as soon as reasonably practicable, if it becomes necessary to provide services outside the agreed scope and if required give you an estimate of the likely amount of any further costs.
Generally, our fees are based on the time taken to complete the work and any other relevant factors specified by the New Zealand Law Society. Apart from time, other factors which may be taken into account in setting our fee include:
• The urgency with which the matter is required to be completed
• The degree of specialised knowledge required;
• The degree of risk assumed by us in undertaking the services including the value of any property involved; and
In providing services it is often necessary to incur disbursements or to make payments to third parties on your behalf. These will be included in our invoice to you when the expense is incurred. We may require an advance payment for any such disbursement.
We also charge administrative expenses to cover the cost of printing, photocopying, communication charges and the cost of making the payments to third parties on your behalf.
GST is payable by you on our fees and costs.
Blackhawk Law does not generally accept payments in cash and prefers all payments to be made electronically. Prior arrangements must be made for cash deposits.
1. To the maximum extent permitted by law our maximum aggregate liability for any loss or damage suffered by you, whether arising in contract, negligence, equity or otherwise, is limited to the lesser of (i) $1,000,000 or (ii) five times the maximum aggregate total of our fees (excluding barrister's fees and other disbursements) charged and paid over any 12 month period of our retainer on the relevant matter.
2. You may not bring any claim against us, including any claim for contribution or indemnity, regardless of its basis in law or its form, more than 12 months after the date of the act or the omission upon which the claim is based.
3. The "late knowledge" provisions in the Limitation Act 2010 do not apply.
4. This clause is for the benefit of any Director, staff member or barrister engaged, retained or instructed by us to assist you with your matter and will apply to them with such modifications as are required to confer on them the maximum benefit of this clause permitted by law. In applying clause 1 above to any claim against a barrister, the reference to fees in clause 1 above shall be read as being a reference to that barrister's fee.
Our usual practice is not to send an invoice until completion of the matter or earlier termination of our retainer. However, we reserve the right to send interim invoices for work done to date, particularly where the matter is ongoing and/or protracted.
In any matters of an ongoing nature we will send you monthly accounts.
Our accounts are due for payment 14 days after the date of the account unless prior arrangements are made with us in writing.
You authorise us to deduct our fees expenses or disbursements from any funds held in our trust account on your behalf where we have provided an invoice.
If your accounts remain outstanding after 30 days, we may choose to suspend work until appropriate arrangements are made to bring the account back into good standing.
We may at our option charge interest on overdue accounts at the rate of 15% per annum from the date the account fell due for payment until it is paid in full.
For property and financing transactions where payment of monies is due by you, we require clear funds for the correct amount to be deposited with us before banking closes on day before the settlement.
You may be asked to prepay expected fees and disbursements or to provide some other suitable security for such fees and disbursements. You authorise us:
• To debit against amounts pre-paid by you; and
• To deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have issued an invoice.
Although you may expect to be reimbursed by a third party for our fees and expenses and although our invoice may at your request or with your approval be directed to a third party, nevertheless you will remain responsible for all payments to us if the third party fails to pay that account.
You authorise Blackhawk Law (without further reference to you) to destroy all files and documents for this matter (other than any documents that we hold in safe custody for you) seven years after our engagement ends, or earlier if we have converted those files and documents to an electronic format.
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.
We maintain a trust account for all funds which we receive from clients. If we are holding significant funds on your behalf we may lodge those funds on interest bearing deposit with Bank of New Zealand. You will be credited with the net interest earned on those funds.
These terms apply to any current engagement and also to any future engagement, whether or not a further copy of them is sent to you. We reserve the right to change these Terms from time to time, in which case we will send you a copy of the amended Terms. Blackhawk Law relationship with you is governed by New Zealand Law and the New Zealand Courts have non-exclusive jurisdiction.
Under the United States Foreign Account Tax Compliance Act (FATCA) and the OECD Common Reporting Standard (CRS) Blackhawk Law is required to collect and supply certain information to banks which operate its trust accounts. When opening a file for you, Blackhawk Law will request that you provide certain certifications and consents to enable Blackhawk Law to comply with its FATCA and CRS obligations. In the event that you do not provide such certifications, Blackhawk Law may not be in a position to undertake trust account transactions for you and, in particular, will not be able to hold moneys on interest-bearing deposit.
Certifications and consents provided may be provided by us to our bank and any other party entitled to it under the treaties applicable to FATCA and CRS.
Under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 Blackhawk Law is or will be obliged to undertake due diligence in relation to you and your identity and, in some circumstances, the source of your funds and the reasons for any transaction you are undertaking. You must, if requested, provide full disclosure in relation to such matters.
When opening a file for you the following information is likely to be requested:
1. In the case of an individual, a passport or driver's license and proof of current address;
2. In the case of a company, certified copy of a certificate of incorporation and any other constitutional documents;
3. In the case of a Trust, certified copy of the trust deed;
4. In the case of any other entity certified copy of its relevant constitutional documents; and
5. In the case of any entity or person who controls a company, Trust or other entity, the same information referred to above.
Copies of the foregoing information will be retained with your files and may be disclosed to the Department of Internal Affairs and the other party charged with the administration of the AML/CFT legislation.
You may terminate this agreement at any time.
We may terminate this agreement in the circumstances permitted by the NZLS Rules.
You may pay us for the services we have provided, and all expenses we have incurred, up to the date of termination.
If this agreement is terminated, we may retain copies of documents or records which we deliver to you or to another lawyer. If we do this, we will pay the cost of producing copies.
We retain all ownership rights in all intellectual property of any kind created by us for you. You may not reproduce our intellectual property or provide it to a third party without our express consent.
We may communicate with you and others at times by electronic means. These communications can be subject to interference or interception or contain viruses or other defects. We do not accept responsibility for, and will not be liable for any damage or loss caused in connection with, or as a consequence of, the corruption of an electronic communication.
New Zealand law governs our relationship and New Zealand Courts have exclusive jurisdiction, to which we both submit.