Getting started

We will discuss with you what you need and how we might assist with.

If things look good for you and us, we will send you an engagement letter and get working. The Law Society of NSW calls this a ‘costs agreement’. It’s really just the detail of how we do business with each client.

That engagement letter will for the most part reflect our usual terms of service, which are below. If the letter and these usual terms of service are inconsistent, the engagement letter we send you wins.

What work?

Our engagement letter (and/or associated emails) will usually set out the scope of work, although because the exact scope is often hard to know up front, it may be generally stated.

What work don’t we do?

We are specialist advisers in Australian financial services law. We are not however experts at everything and will recommend that you seek specialist advice as we perceive the need. Particularly, we are not tax advisers.

Our work is generally limited to legal matters. We do not anticipate performing non legal services for you (such services are not regulated by the Legal Profession Act (NSW 2004).

We maintain professional indemnity insurance with Law Cover, the NSW legal professional indemnity insurer. Beyond this, the company’s liability, as with all companies, is limited to its assets.

What will it cost?

We usually bill at fixed costs, and aim to match the costs to the task and our value add.

If for some reason we find ourselves billing at hourly rates, we will bill at the rate our engagement letter says. Having said that, don’t freak out at our hourly rates: we rarely charge for the time spent, again preferring to make sure costs make sense.

If a cost is expressed to be fixed, then subject to any relevant assumptions, it’s fixed. If a cost is expressed to be a cap, subject to any relevant assumptions, costs are… well, capped. If an amount incurred is lower than a cap or estimate, then of course we will charge you the lower amount.

If we provide an estimate, remember that legal costs estimates are not a science, although we would not expect the variance on an estimate to be more than 20%.

We may well need to revise any initial proposal when we see documents or as a deal takes shape.

Figures do not usually include GST so don’t forget that the amount you must pay will be 10% higher than our stated professional costs.

Figures do not include disbursements but we generally bear these ourselves.

In giving any proposal we rely on standard assumptions below. We may supplement or change them for any particular piece of work. Assumptions illustrate the major variables that we anticipate at the time will affect the calculation of our costs. Please let us know if you suspect that any of these assumptions are incorrect or unreasonable when given or as a matter progresses.

Circumstances and scope can and do change. The actual cost of completing the work may be lower or higher than any estimate. No estimate we give is an offer to complete the work for the estimated amount nor is it a fixed sum quote. Even with fixed or capped costs, failed assumptions usually mean we have to revisit the proposal.

Our payment terms are 7 days. As a small business, we are sensitive to poor cash flow. It makes us cranky and we sleep poorly.

We can charge interest at 10% on unpaid costs accruing daily. We may also structure fixed costs so that payment by a certain date attracts a discount.

Who does your work?

Anthony Fleming is the solicitor director of Launch Financial Services Lawyers Pty Limited, a company located in NSW and incorporated under the Corporations Act. He holds an unrestricted practicing certificate in NSW to practice NSW law. The company is an incorporated legal practice. He is not licensed in any way to be a comedian.

The provision of legal services by the company, including by any officer or employee who is a solicitor, is regulated by the Legal Profession Act (NSW) 2004.

How we charge

As mentioned, we usually bill at fixed costs, and aim to match the costs to the task and our value add. If for some reason we find ourselves billing at hourly rates, we will bill at the rate our engagement letter says.

We will tell you beforehand if the rate is to change. Subject to the above, we usually review rates each financial year.

Because we aim to provide as cost effective service as possible, and one which appropriately balances risk to us and our relationships with you and other clients, our rates can be higher or lower than this, or charged on a different basis (for example, fixed cost) over various matters for you and for other clients.

If we engage another person for you (for example, a corporate search service, or another law firm, or a barrister), we will ask you first and it will be your responsibility to pay their fees.

Your obligations to us are personal whether or not you are also a trustee. Our client agreement is expressed to bind all group companies, and each is bound severally. If one doesn’t pay, each other is on the line. If you intend to raise money from investors and pay us from those moneys, not raising what you anticipated is not an excuse to not pay us.

If a deal falls over before it’s meant to, we will charge a fair portion of the fixed cost, or the time incurred if at hourly rates.

Assumptions

Our “usual” assumptions are that:

• we need not advise you generally on law outside of the matters strictly necessary to complete the tasks in our scope of work,

• the major commercial terms have been determined when we start work, there are no subsequent material alterations or delays and no unusual structuring of any product is needed,

• there are no material changes to law or policy during the matter,

• there will be no requirement for non routine or lengthy legal research and analysis,

• other parties are limited to any identified, their respective lawyers are competent and timely, no particular complications arise with any of them and negotiations are reasonably straight forward and not prolonged,

• no regulator has material comments on any document nor shows any unusual interest in the matter,

• we will not be required to prepare or review documents other than those mentioned as part of the scope of work,

• there will be no more than 3 drafts of any document except any offer document where we allow 6 drafts,

• all documents are marked up PDF format documents require re-reading where not marked up by hand,

• we do not need to convert documents to Word and reformat - this incurs extra cost,

• you do not require tax advice from us other than our offer document tax wording, and

• no disputes emerge and no matters emerge which are or become litigious or are challenged by a third party.

Duties

In our legal system, the solicitor/client relationship has long been recognised as a fiduciary relationship. The term ‘fiduciary’ means trust, so in a fiduciary relationship one person (the client) places their confidence, good faith, reliance and trust in another (the solicitor), whose advice is sought in some matter.

A fiduciary relationship creates many legal duties for the person in whom the trust has been placed. Generally, this person must act in the best interests of the other. In relation to their clients, solicitors must:

• act honestly and fairly in a client’s best interests,

• act with due skill and diligence, reasonable promptness and courtesy,

• maintain a client’s confidences,

• avoid conflicts of interest,

• communicate effectively and promptly with clients, and

• follow a client’s lawful instructions.

There are many different components to these duties.

On confidentiality, conversations, correspondence and documentation between you and your solicitor are confidential and can only be revealed in limited situations. Solicitors must also follow strict rules in the maintenance of client files.

The fiduciary concept in the practice of law is now encapsulated in various pieces of legislation governing the legal profession and in a code of ethics called the Solicitors’ Rules. All solicitors in New South Wales are obliged to follow these laws and ethical standards. The Office of the Legal Services Commissioner enforces breaches by solicitors.

Please note that solicitors also owe duties to the Court and the profession, which sometimes may be at odds with their duties to clients. Whilst clients usually have priority, solicitors cannot act in way that compromises the integrity of the law.

As officers of the Court, solicitors must not only obey the law, they also have to ensure the efficient and proper administration of justice.

In all their dealings, a solicitor must uphold the principles by which they are governed. Whilst observing their duties to the client, solicitors must: 

• not mislead the Court,

• act with competence, honesty and courtesy towards other solicitors, parties and witnesses,

• be independent (free from personal bias),

• be frank in their responses and disclosures to the Court, and

• be diligent in their observance of undertakings. Some common examples include:

• not influencing witnesses,

• not providing bail for a client,

• not being a witness in a client’s court case, and

• withdrawing from representing a client when the client deliberately misleads the Court.

Sometimes situations arise when acting in the client’s best interests interferes with a solicitor’s duties to the administration of justice. The law provides that solicitors give precedence to their duties to the administration of justice.

Rights

The Legal Profession Act gives you the right to:

• negotiate your costs agreement with us,

• receive a bill from us,

• request an itemised bill within 30 days after receipt of any lump sum bill, and

• be notified of any substantial change to the matters disclosed to you as the Legal Profession Act requires.

We must give you, on reasonable request:

• a written report of the progress of the matter, and

• a written report of the legal costs incurred by you to date, or since the last bill (if any), in the matter.

We may charge you reasonable amount for these. We would charge our agreed rate.

Please note that the following avenues that are open to you in the event of a dispute in relation to legal costs:

• costs assessment under the Legal Profession Act

• the setting aside of this costs agreement under section 328 of the Legal Profession Act and

• mediation under Division 8 of the Legal Profession Act.

There are time limits that apply to the taking of any action referred to above and we can let you know these if you ask us.

NSW is the law which applies to legal costs in relation to this matter but you have the right to:

• sign under a corresponding law a written agreement with us that the corresponding provisions of the corresponding law apply to the matter, or

• notify under a corresponding law (and within the time allowed by the corresponding law) us in writing that you require the corresponding provisions of the corresponding law to apply to this matter.

Other matters

Being honest

We will discuss all potential conflicts with you.

We act for many other market participants including responsible entities, dealer groups, family offices and investment managers.

We will always be clear as to whom we are acting for at the outset of any piece of work.

As a touchstone, if there is a dispute, we will remain loyal to the party for whom we acted, but the chances are that we would cease to act for both parties on that matter.

The way the world works

We will communicate with you by email generally. Email can be insecure.

We may store material in the cloud for you. We will give you a copy of the terms of our providers on request. This involves some risks, and we are not responsible for those providers or data loss by them. Being Internet based, we find that clients often seek to understand key issues about this, including security, use of data, ownership of data and what happens if the provider suffers financial distress. The terms of each service vary.

Files and documents

We own the intellectual property in the documents we prepare.

When you pay for the legal services associated with the file in full, we grant to you a perpetual, non-exclusive, royalty free licence for you Page | 5 and your successors to use the final documents for the particular matter we are assisting with. This means that you can’t take our documents and go do another deal, or hand them about - at least not without us agreeing. If you are a trustee or responsible entity, then when you pay for the legal services associated with the file in full, we grant a perpetual, non-exclusive, royalty free licence to you as trustee of the particular fund and successors. If we act for a trustee or responsible entity of one of your funds, then when they pay for the legal services associated with the file in full, we grant them a perpetual, non-exclusive, royalty free licence as trustee of the particular fund and successors.

You have access to our files as NSW law permits.

When you have paid all that you owe us, you are entitled to the original client file on request, however if there is something in respect of which we may claim privilege we may exclude that document. We keep our files mostly electronically so we would for the most part give to you an electronic copy. Hard copy documents we would give to you as originals, but we must retain a copy for legal reasons and so may charge our time and copying costs to facilitate this.

Ending our appointment

You can terminate our services for you at any time by letting us know. We can cease acting for you on reasonable notice. Generally 5 Sydney business days unless we consider there is a conflict.

Commission

Very rarely indeed, we may be offered a distribution fee by insurance broker where a referral results in a policy being written. This is usually only a very modest amount. We usually refer several brokers to clients if asked, and the decision as to brokers is one for the client. We never refer brokers we suspect may be inadequate. We are of course happy to tell you reasonable detail as relevant to you if you ask.

Privacy

We may hold personal information about you – such as your name and address. We will not give this to anyone unless you agree. We use personal information to administer our files for you. Without personal information, we cannot administer files for you! We will tell you at any time you ask what information we have and you can change it anytime free – just ask. Read our privacy policy here.