Written Agreement

In the code of conduct, the contract between an adviser and a client (or third party) is referred to as a written agreement. A written agreement is a legal document that creates obligations between two parties, by recording the agreed terms and conditions of service between those parties.

An adviser is required to have a written agreement with a client in all situations, except where they do not charge a fee for an initial consultation.

The code of conduct clearly establishes the requirements that must be met:

• within the written agreement document
• before the written agreement is entered into
• on acceptance of the written agreement.

Code of conduct requirements

The following clauses of the code of conduct must be taken into account by an adviser when developing a written agreement.

Within the written agreement for the client ensure that:
a full description of the services to be provided is recorded	1.5b
the fees set are fair and reasonable in the circumstances	8a
fees and disbursements (including Immigration New Zealand fees and charges) to be charged are set out, including the hourly rate and the estimate of time it will take to perform the services, or the fixed cost for the services	8b
payment terms and conditions are set out	8c
Before a written agreement is accepted by the client ensure that:
the Licensed Immigration Advisers Code of Conduct 2010 is explained to the client, and a copy is provided to the client	1.4a
the adviser’s internal complaints procedure is explained to the client, and a copy is provided to the client	9b
the client is advised that they may complain to the Immigration Advisers Authority	9c
fees, disbursements and payment terms and conditions are provided to the client in writing	8d
the client is made aware, in writing and in plain language, of the terms of the proposed written agreement and all significant matters relating to it	1.5a
the client is advised that they are entitled to seek independent legal advice before entering into the written agreement	1.5c
On acceptance of the written agreement by the client ensure that
the client confirms in writing that they accept the terms of the written agreement	1.5d

Additional code of conduct considerations

The following clauses of the code of conduct should also be taken into account by an adviser when developing a written agreement.

In relation to the written agreement an adviser should also:
disclose any financial or non-financial interests in goods or services recommended or supplied to the client	7a
not, unless the client agrees in writing: represent another client who has potentially conflicting interests with the client represent a client with whom he or she has a potential conflict of interest enter into an arrangement with the client other than for the provision of immigration advice if the arrangement creates a potential conflict of interest	6a 6b 6c
note that they will confirm in writing to the client when their application has been lodged, and provide the client with ongoing timely updates	3a
note that they will confirm in writing the details of any material discussions with the client	3f
note that they will work in a manner that does not unnecessarily increase costs	1.1d
each time a fee is payable, provide the client with an invoice containing a full description of the services that the invoice relates to	8e
obtain agreement in writing from the client, to any material increase in costs, as soon as the increase is known to the adviser	3c
ensure that changes to the terms of agreements are recorded and agreed in writing	1.5e
establish and maintain a separate client bank account for holding all client funds paid in advance for fees and/or disbursements	4a
withdraw funds held on behalf of the client only when payments for fees and/or disbursements fall due	4b
use funds held on behalf of the client only for the purpose for which they were paid to the adviser	4c
confirm in writing to the client when work ceases part way through the immigration process on the client’s instructions or by the action of the adviser	3b
take reasonable steps to ensure the client’s interests are represented if the adviser cannot for any reason continue as a representative	1.1c
provide any refunds payable upon completing to ceasing a contract for services	3d
ensure that any personal documents belonging to or relating to the client are held securely whilst in the adviser’s possession	1.3a
return passports and other personal documents to clients, on request, without delay and in a secure manner	1.3b
maintain correct and up to date business contact details	3g
maintain complete client records that track all transactions for a period of seven years and making those records available for inspection on request by the Authority	3e

Achieving a shared understanding

Clause 1.5a of the code of conduct requires that an adviser must ensure that before any agreement is entered into, the client is made aware, in writing and in plain language, of the terms of the agreement and all significant matters relating to it.
This clause places a significant onus on an adviser to ensure that the client and the adviser have achieved a shared understanding. This engagement is an important part of the professional relationship, and must be approached with thoroughness, and care from the earliest interaction between the parties.

In fulfilling this responsibility, it is essential for the adviser to have gathered enough information to explain immigration opportunities, risks, and processes to their particular client. If the adviser fails in this responsibility, a potential client will not have the information they need to know what services they require.

An adviser should be able to produce a written record reflecting how the requirements of clause 1.5a of the code of conduct to inform the client of the terms of the agreement and all significant matters relating to it, were met.

Who signs the written agreement in a family or partnership

It is generally expected that the principal applicant will sign the written agreement with the adviser. An adviser should use some discretion regarding who else might need to sign.

However, certain factors make it more likely that a secondary applicant or other client (third party) should also sign an agreement.  This might be the same agreement as the principal applicant or a different agreement. 

• One factor is whether the secondary applicant or other third party is paying the adviser.
• Another factor is where the principal applicant is living overseas and the adviser is also providing immigration advice to the principal applicant’s partner or sponsor in New Zealand. In this situation, this ‘secondary applicant’ is also receiving direct immigration advice.  This might also apply in some families, where one person is the family decision-maker or communicator.  The adviser might be asked to provide immigration advice directly with this person, even though the visa application is for a different family member.
• In a partnership situation, the person who initially appears to be the secondary applicant may become the principal applicant.  This may be because the secondary applicant turns out to have the stronger immigration case.  If the secondary applicant becomes the principal applicant (and they have not already signed the agreement) then they could either sign the original agreement as an amendment or sign a separate agreement.  
• If both partners are seeking visas and receiving immigration advice, it is advisable that an adviser asks both partners to sign the agreement at the beginning. It is also recommended that the agreement states what steps the adviser will take if the relationship breaks up prior to the completion of immigration assistance. For example, an adviser could agree that if the relationship between the two clients were to dissolve, they may choose not to continue to represent the secondary client if this presented a conflict of interest for the adviser.

Advisers should also be mindful of confidentiality requirements, even where applicants are involved in the same immigration application or are in the same family. It is prudent to check with each client if they authorise the adviser to communicate or share information with any other party. If so, the client should specify with whom and in what circumstances this would be acceptable. 

Clause 1.5b of the code of conduct states that written agreements should include a full description of the services to be provided by the adviser. Where the adviser is providing immigration services to multiple family members, best practice would be to include in the agreement(s) the names of the relevant visa applicants and if appropriate, their respective visa types.

Acceptance of the written agreement

In all situations, the responsible adviser(s) must be named in the written agreement, to ensure that the client is clear about who will be providing the immigration advice. The adviser(s) is/are always personally liable for any immigration advice given. It is important to remember that:

• where the written agreement is between the client and the adviser, both must accept the written agreement

• where the written agreement is with a third party, either the third party or their nominated representative and the adviser, must both accept the written agreement

• in situations where an adviser works in a multi-adviser company, it may not be appropriate for the employee adviser to accept the written agreement on behalf of the company. In these situations, a nominated company representative can accept instead.

In some scenarios, advisers may find it difficult to obtain a client’s signature on a written agreement. In such situations, an email from the client to the adviser stating that they accept the terms and conditions of the written agreement will be considered by the Authority as acceptable to meet the requirements of clause 1.5d of the code of conduct. It is important to remember however, that in such situations the obligation to ensure the adviser and client have achieved a shared understanding remains.

Sample written agreement

The Authority has developed a sample written agreement, to assist advisers to set out:

• the parties to the agreement
• the supervision arrangement between a provisional licence holder and their supervisor, if applicable;
• the services that will be provided
• the fees and disbursements that will be charged
• the payment terms and conditions
• how invoicing will be undertaken
• how fees held in advance will be accessed
• how any interest on unpaid accounts will be managed
• the obligations of the client to the adviser
• how any refunds will be managed
• any financial and non-financial interests that the adviser must disclose
• how any actual or potential conflicts of interest will be managed
• how a client can make a complaint
• how a termination of the written agreement will be managed;
• how the confidentiality of the client’s personal information will be managed
• the client’s entitlement to seek independent legal advice
• the authority from the client to act on their behalf
• how any changes to the terms of the written agreement will be managed.