TERMS OF ENGAGEMENT (CRIMINAL LAW)

The following terms apply to all criminal matter clients within South Australia.

Introduction

We confirm that you wish for us to act for you in a South Australian criminal law claim.

Before commencing work we are required to set out the following general terms on which we accept instructions.

2. Scope of the Legal Work

2.1 You have instructed us to advise, assist, and, if required, represent you in your criminal matter.

2.2 We will accept instructions from you only.

3. Doing the Work

As previously advised, you have a primary legal practitioner responsible for and in control of this matter. This legal practitioner is also the person whom you may contact with regard to legal costs.  However there may be changes of legal practitioner responsible over time (which will be notified to you) and other legal practitioners or legal staff may work on the matter from time to time as we consider necessary.

4. Fees

5. Disbursements

5.1 In addition to our fees we charge you for the out of pocket expenses incurred or paid on your behalf (called disbursements).

5.2 Out of pocket expenses incurred by us may include, but are not limited to, the cost of medical reports and, if required, barristers fees, agents, Government and local authorities fees, STD, international calls and couriers are charged at the cost to us. We do not charge for mobile or local telephone calls. In most cases we can get disbursements paid by the insurer who manages your claim. In rare instances where such costs are not paid by the insurer then these costs are your responsibility.

5.3 Should we see a need to incur expenses on your behalf which are unusual as to their nature or extent (including in litigious matters expenses which are unlikely to be recoverable from the other side if you win and obtain a costs order), we will provide you with advice and seek your specific instructions before incurring such expenses.

5.4 Disbursements are incurred by us as your agent. In the event that the disbursement is subject to GST you will be required to pay the GST.

6. Goods and Services Tax (‘GST’)

Our fees are subject to GST. Under these Terms the amounts or rates quoted for fees are inclusive of GST.

It is a term of this engagement that you, as client, pay not only our fee/s but any GST in respect of the fee/s.

To the extent that disbursements we incur for you or on your behalf are subject to GST, GST will also be payable by you in respect of those disbursements.

It is a term of this engagement that you, as client, pay not only the disbursements, but that you pay or reimburse us for any GST paid or payable in respect of the disbursements.

7. Legal Costs – Your Right to Know

You have the right to:

• negotiate a costs agreement with us;
• receive a bill of costs from us;
• request an itemised bill of costs after you receive a lump sum bill from us;
• request written reports about the progress of your matter and the costs incurred in your matter;
• apply for costs to be adjudicated within 6 months if you are unhappy with our costs;
• apply for the costs agreement to be set aside;
• make a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging);
• accept or reject any offer we make for an interstate costs law to apply to your matter;
• notify us that you require an interstate costs law to apply to your matter.

For more information about your rights, please read the fact sheet titled Legal Costs—your right to know. You can ask us for a copy or obtain it from the Law Society of South Australia (or download it from their website).

8. Cost Estimates 

8.1 As advised, it is not possible at this time to provide an accurate estimate of the total costs.

The major variables that will affect the calculation of these costs include:

• The extent that the charge/s is/are defended by you including whether the matter proceeds to a trial, and the length of any trial;
• The availability of Courts and judges to hear the matter and the extent to which it may have to be adjourned because of unavailability of Courts or judges;
• The experience and cost of barrister which you instruct us to brief;
• The amount of documentary or other evidentiary material received from Prosecution and whether a conference is required to view and consider evidentiary material;
• Whether we are required to interview and proof additional witnesses in preparation for a trial or contested hearing;
• The extent to which you require information and feedback as to the progress of the matter;
• The extent to which you cooperate with us, by for example, promptly returning telephone calls and responding to letters or emails.

8.2 Fees for our services do not include disbursements, which you may be required to pay in accordance with clause 5 regardless of whether or not we are successful in your matter.

8.3 We emphasise that the estimate is just that, a preliminary estimate. It is not a quote or a fixed maximum charge.  The actual costs will be based on the work actually done and the expenses actually incurred.

9. Updating of Advice

You have the right under clause 17 of Schedule 3 of the Legal Practitioners Act to be notified of any substantial change to the matters to be disclosed to you under clause 10 of Schedule 3, including any substantial change to the estimated costs of work.

10. Billing

10.1 We are entitled to bill you on an interim basis, or if you terminate your agreement with us, provided that no bill is to be delivered less than twenty-one days after the delivery of a previous bill.

10.2 Accounts are to be paid within seven (7) days after delivery. If an account does remain unpaid after seven (7) days after delivery, we may terminate the engagement.

10.3 The following avenues are available to you if you are not happy with a bill from us:

• requesting an itemised bill;
• discussing your concerns with us;
• having our costs adjudicated;
• applying to set aside our cost agreement;
• making a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging).

For more information about your rights, please read the fact sheet titled Your Right to Challenge Legal Costs.  You can ask us for a copy, or obtain it from the Law Society of South Australia (or download it from their website).

11. No Apportionment of Liability

Where we act for two or more people or entities in a matter, each of you will be individually responsible for payment of our entire account whatever arrangements may be made between you.  You agree that you are personally liable for our costs and disbursements even if the matter involves our acting for other persons and/or organisations.  If you provide us with instructions for or on behalf of a third party or jointly with another party, you will be personally liable to pay for our services in accordance with these terms of engagement, irrespective of the liability of any third or other party to pay our fees.

12. Trust Money

12.1 As advised, we require you to pay monies into our trust account and for this amount to be maintained as our required continual trust account balance.

12.2 In addition to the continual trust balance referred to in 1, we may ask you to pay money into our trust account from time to time to cover reasonably anticipated expenses, including counsel fees, that may be in excess of the continual trust balance. These moneys are retained in our trust account for payment of disbursement or will be applied to our invoices (including GST) when they fall due for payment, or will be used in payment of particular expenses of this firm which are incurred on your behalf.

12.3 If you do not comply with any such request, we may cease acting for you in accordance with the following clause.

13. Termination

13.1 Your Right to Terminate this Agreement

You have the right to terminate our services at any time.

13.2 Cooling off period

You also have a five (5) business day cooling-off period commencing one business day after you sign this agreement. To exercise this right you must provide us with written notice within this timeframe to the effect that you intend to terminate this agreement.

13.3 Our Right to Terminate this Agreement

We may terminate this agreement if there has been:

13.3.1 Good cause

This includes, but is not limited to, if you do not comply with the terms of this agreement, including clause 17 below, or if, in our view, the necessary relationship of trust and confidence no longer exists between us. We would give you reasonable notice and would then cease acting for you and, in any litigation, we would apply to be removed from the Court file as your legal practitioner.

or

13.3.2 Unreasonable refusal to accept a settlement offer

This occurs if you refuse to accept an offer to settle your matter if we have advised you that it is unreasonable to refuse in the circumstances.

13.4 Payment of fees on termination

All fees and expenses incurred prior to termination by either you or us are immediately billable to you as though you had been successful in your matter in the manner described in clause 4 above (except where you have terminated our Agreement as per the above Cooling Off period).

13.5 Holding of documents and monies until payment received

Subject to any court order or agreement to the contrary, we are entitled to retain all moneys, papers and records relating to this matter until our bills are paid.

14. Conflicts of Interest

We will not intentionally become involved in a situation where there is a conflict of interest of a legal nature between you, us and/or another client but if through inadvertence or unforeseen circumstances this should occur we may be obliged to terminate the engagement in this matter.

15. Storage of Records

15.1 We operate an electronic filing system. We do not store paper records for the majority of your documents.  In most cases we will scan your documents and give them back to you.

15.2 Your privacy is important to us. Boylan Lawyers (Boylans) privacy policy is framed in the context the Privacy Act 1988 and the Australian Privacy Principles contained therein.  Boylans collects personal information in the provision of legal services. The purpose of collection of this personal information is to enable Boylans staff to provide legal services.   In all cases, the consent of the client about supplying information is required. Confirmation of consent may be evidenced by the provision of a terms of engagement or instruction booklet signed by the client to whom the information relates.

15.3 We store your files for seven (7) years after completion of the matter. We do not charge for this storage but if you require us to retrieve anything stored by us after completion of the matter, you agree that we will charge you a reasonable fee for that service. You authorise us to destroy any of your files retained by us after seven (7) years following the completion of the matter. We encourage you to collect your file from us for your own records within seven (7) years after completion of the work.

15.4 All reasonable steps must be taken to keep personal information confidential, destroy or de-identify personal information if it is no longer needed for any purpose for which the information may be used or disclosed. The information obtained cannot be disclosed to any other person without the client’s consent being provided in the terms of engagement or through their instructions.

15.5 Boylans staff members are trained to maintain professional standards of confidentiality in their contact with clients, barristers and other professionals. Boylans has a policy of requiring staff to sign confidentiality agreements re the non-disclosure of personal information of clients. This is in addition to the staff being bound by the professional conduct rules.

15.6 Files are available only to staff members who have a need to use them for the purpose of providing the legal service. Computer data bases containing information are protected by passwords known only to Boylans staff. Boylans collect electronic data containing matter documents, such as; correspondence, statements, Court Documents, file notes, terms of engagement, client authorities and other documents relating to a specific matter.  Where this data is cloud hosted, the cloud hosting services are to be provided in Australia.  Boylans also collect electronic data containing client contact information, such as; name, address, email, phone number and other contact information.  Where this data is cloud hosted it may be hosted in Australia or overseas.  Whether data is hosted in Australia or Overseas through a cloud hosting provider, all reasonable steps will be taken to ensure the information is appropriately protected. Emailed information is handled confidentially according to Boylans policy and procedures.

15.7 Personal information held by Boylans has been provided, with consent, by clients themselves or referrers on their behalf. A client may have access to his/her personal details which are held in his/her own personal record in accord with the provisions of the Australian Privacy Principles. Information to be provided to client must be provided to him/her personally after it has been clearly established that he/she is the person about whom the information is requested.  If a client considers that Boylans has breached his/her privacy or this policy, he/she may complain to the Managing Partner.

16. Your Agreement to Work with Us

It is a term of this agreement that you will reply to correspondence, return phone calls, respond reasonably to requests for instructions, information and documents, and pay accounts or pay money into trust when reasonably required.  If you do not work with us in these ways then we may terminate this agreement.  In such circumstances, you agree that you will file a notice of acting in person in any current court proceedings in which we have been acting for you.

17. Variation

These terms can only be effectively varied in writing.

18. Authorisation

It is a term of the engagement that should we receive any money from you or on your behalf other than for a specified purpose, we are at liberty to apply that money in payment of our outstanding accounts if nothing has been heard from you disputing the accounts within 7 days after delivery.

19. Copyright

We own the copyright in all documents we author in supplying our services and you have the right to use those documents only for the purposes for which they are supplied.

20. Applicable law

These terms are governed by South Australian law.  All parties consent to the non-exclusive jurisdiction of the courts of South Australia with regard to any dispute arising under or out of them.

21. Comments

Our aim is to provide you with high quality and reasonably-priced legal services. We value your feedback and encourage you to contact our office with any concerns or comments about the conduct of this matter.

21. Your Agreement to These Terms

Please contact Boylan Lawyers if there is anything in these Terms which you do not understand or with which you disagree. You are also entitled to seek independent legal advice on the contents of the above Terms.

22. Cooling Off Period

We note that you have a cooling off period of 5 clear business days during which you may, by written notice, terminate this agreement.