skype – does it have a future in the legal context? doing...

www.adls.org.nzISSUE 2 12 FEBRUARY 2016

LAWNEWS

THIS ISSUE:

Skype – does it have a future in the legal context?Anti-corruption law changes may increase risk of

doing business overseasBaby boomers create opportunities and challenges

+ Law and technology

VIDEO-CONFERENCING TECHNOLOGY AND THE WITNESSING OF DOCUMENTS

ADLSI’s Property Law Committee spent some time last year considering the possible use of technological advances to make the practice of the law easier. In particular, questions arose as to whether videoconferencing, or even Skype, could be used to assist with the witnessing of documents. The Committee commissioned four Equal Justice Project students who have been sitting as student representatives on the Technology & Law and Property Law Committees to research these questions further and look at approaches taken elsewhere. The following is the result of their labours, compiled and edited by two of those students, Jason Kim and Eugenia Woo.

Throughout history, from the advent of the printing press to the widespread availability of internet access, information and communications technology has helped facilitate greater access to the law.

One area of law in particular, however, has caused some consternation amongst practitioners – the use of videoconferencing technology in witnessing the execution of documents.

This technology could help make the process of document execution easier and more accessible. For instance, in Australia, videoconferencing has been used to provide remote Aboriginal Continued on page 2

Pat Scriven, Robyn Glynn, Joan Davis and Mervyn Schamroth are pictured here enjoying ADLSI’s annual Mental Health & Disability Law Committee Christmas drinks late last year.

For more pictures from this evening, please turn to page 5.

communities with the ability to execute documents, despite the geographical barriers which would otherwise make this a more onerous (and expensive) task.

However, the law (having not anticipated such technological developments) is quiet as to the circumstances when this kind of witnessing will be legally valid. Generally, legislation refers to the need for “presence”, without stipulating whether this requires physical presence, or if virtual presence would suffice.

While New Zealand’s Evidence Act 2006 does provide for alternative methods of giving evidence in court (including through videoconferencing), there has yet to be definitive acceptance of the practice of witnessing

signatures in this way.

Other jurisdictions, however, do provide some (if limited) guidance as to how the law might treat such agreements.

United Kingdom

The law in the United Kingdom on allowing videoconferencing for witness testimony in a trial appears to be well-settled and the courts generally tend to favour allowing it. The landmark case on this issue is the decision from Polanski v Conde Nast Publications Ltd [2005] UKHL 10 (HL), where a three to two majority of the House of Lords applied part 32.3 of the Civil Procedure Rules (the rules governing allowance

ISSUE 2, 12 FEBRUARY 2016

Editor: Lisa Clark

Publisher: Auckland District Law Society Inc.

Editorial and contributor enquiries: Lisa Clark, phone (09) 303 5270 or email [email protected]

Advertising enquiries: Chris Merlini, phone 021 371 302 or email [email protected]

All mail for the editorial department to: Auckland District Law Society Inc., Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010. PO Box 58, Shortland Street, DX CP24001, Auckland 1140. www.adls.org.nz

Law News is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLSI, and

available by subscription to non-members for $130 plus GST per year. If you wish to subscribe please email [email protected]

©COPYRIGHT. Material from this newsletter must not be reproduced in whole or part without permission. Law News is published by Auckland District Law Society Inc., 2 Chancery Street, Auckland.

LAW NEWS is an official publication of Auckland District Law Society Inc. (ADLSI).

+ Law reform

VIDEOCONFERENCING TECHNOLOGY AND THE WITNESSING OF DOCUMENTSContinued from page 1

of videoconference testimony). Almost all the case law following Polanski has proceeded on the basis that, as a matter of public policy, giving evidence by videoconferencing is preferable to giving no evidence at all. Although these guiding principles were applied in respect of giving witness testimony, and not necessarily witnessing a signature, it is possible that the same principles may guide the courts here.

In fact, the High Court of Justice in the case of Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam) allowed the signing of adoption consent forms to be witnessed via Skype. The process satisfied the court that the parents had freely and unconditionally consented to the adoption, and also that they had received no financial inducement. However, it has to be noted that Re ML was a very unusual and fact-specific case, and that further support for signing documents over Skype has not been expressed by the courts.

In another decision by the same judge (R v C and S [2013] EWHC 1295 (Fam)), the court refused an application for taking evidence by Skype, rather than traditional videoconferencing (indeed, the judge noted that it will more often be the case that Skype will not be allowed). This is because Skype’s technical limitations (including problems in everyone seeing and hearing the picture) make it inappropriate for the court environment. It was also noted that the judge would not be willing to use Skype if there was any alternative.

However, in the case of Belkovic v DSG International Plc [2014] NIQB 25, Skype witness evidence was permitted. While the approach adopted in Re ML was kept in mind, this was a vastly different case and (as noted) the use of videoconferencing technology for witness testimony is already an accepted area of law in England and Wales.

The consideration of Re ML in Belkovic, however, may suggest that the principles governing Skype witness testimony and Skype witnessing of signatures could have some overlap. However, whilst noting that convenience should not necessarily be the determinative factor, in civil trials where both parties consent to its use it could be used to make the process less costly for the parties.

Wales. The New South Wales Law Reform Commission has helpfully published a report explaining the rationale for the requirement for joint witnesses in wills. The report stressed that both witnesses must be present at the same time, primarily because they ought to be able to pick up on facts relevant to issues of the testator’s capacity, understanding or freedom from pressure. The report places greater import on the timing of witnessing than its geography. With this being the rationale for presence requirement, in principle, virtual presence would not appear to be any less effective at achieving its purpose.

New Zealand

New Zealand’s Wills Act 2007 has a provision that may be analogously concerned with the concept of presence being a requirement for signatures. Section 11(4)(a) of the 2007 Act, as amended in 2012, requires at least two witnesses to be present together in the will-maker’s presence when the will-maker signs the will, directs another person to sign the will on their behalf, or acknowledges that another person directed by the will-maker signed the document earlier in his presence. One of those three requirements has to be met in order for the will to be valid.

Canada

Meanwhile, Canada has directly rebuked the practice of witnessing signatures via videoconferencing. In First Canadian Title Company Ltd v The Law Society of British Columbia 2004 BCSC 197, it was held that videoconferencing fell short of the requirements for a lawyer to witness documents as an officer under the Land Title Act (British Columbia). The biggest concerns raised were integrity of the document and ability to verify the signatory’s identity. A lawyer cannot know for certain what document the signatories are signing, and whether it is the same as that being executed by the other party.

However, there are safeguards that could be put in place to mitigate such concerns. For instance, in the case of a paper transaction, the signatories might hold up each page to the camera as it is signed. Other technologies (such as email or fax) could also be sued as safeguards, although these may be less secure and vulnerable to hacking. Fortunately, there have been developments in encryption software which can be used to ensure the same document is displayed to all parties involved in an electronic transaction.

Australia

The courts in Australia generally support the approach of the decisions from England and Continued on page 7


+ Anti-corruption law

Organised Crime and Anti-Corruption Legislation

By Sarah Mead, Associate at Chen Palmer and Transparency International New Zealand Board Member, and Daniel King, Transparency International New Zealand Director

The Organised Crime and Anti-Corruption Legislation Bill (Bill) passed into law in November 2015 by way of 15 amendment Acts.

The Bill, which was introduced in 2014 with the aim of strengthening the law to combat organised crime and corruption and improving New Zealand’s ability to collaborate with its international counterparts, was passed with the support of all parties except for New Zealand First. The legislative changes were intended to enable New Zealand to ratify the United Nations Convention Against Corruption (UNCAC), which occurred in November 2015.

The passing of the Bill brings with it a range of changes with respect to the law against corruption, particularly for businesses operating abroad. This article looks at what these changes are, and what they mean for New Zealand businesses.

New Zealand’s anti-corruption laws

New Zealand’s anti-corruption laws are primarily found in the Crimes Act 1961 and the Secret Commissions Act 1910.

Under the Crimes Act, it is an offence to corruptly give, offer or agree to give any bribe to a person with intent to influence a public official in respect of any act or omission by the official in his or her official capacity. This applies to judges, Members of Parliament, Ministers and law enforcement personnel (see Part 6), along with foreign public officials (section 105C). The Secret Commissions Act contains bribery and corruption-style offences relevant to the private sector.

What are the changes?

The main changes made by the respective amendment Bills and/or Acts are as follows, and bring New Zealand further into line with international best practice.

• Companies can now be held vicariously liable for the acts of their employees (Crimes Act section 105C(2A)). Where an employee, acting within the scope of his or her authority as an employee of the company, bribes a foreign public official and does so with the intent to benefit the body corporate or corporation sole, the company can be held vicariously liable for the offence. Under the Crimes Act, an “employee” is broadly defined and includes an agent, director, or officer of the company. If a company can show that it has taken “reasonable steps” to prevent the commission of the offence, it may have a defence (section 105C(2B)). The onus is on the company, however, to raise and establish this defence.

• The penalty for bribing a foreign public official has increased. Under the Crimes Act, courts can impose both a fine (not exceeding either $5 million or three times the value of that commercial gain (if any)) and/or a term of imprisonment (of up to seven years) where a person is found to have bribed a foreign public official

(sections 105C(2D) and (2E)).

• The penalty for offences under the Secret Commissions Act (i.e. for domestic corruption in the private sector) has also increased (section 13). A person who commits an offence against the Act is also liable to imprisonment of up to seven years.

• The previous exception for bribery of foreign public officials where the act was lawful in the country of the foreign official has been repealed (former section 105E, now replaced).

• Facilitation payments, or “grease” payments, are still legal under the Crimes Act (see section 105C(3)) – despite opposition from civil society (including from Transparency International New Zealand (TINZ)). That means that a small payment to a foreign public official that is paid to ensure or expedite performance of a “routine government action” is not considered a bribe under New Zealand law. This exception under the Crimes Act has, however, been narrowed.

What is a facilitation payment?

A faciliation payment is a small payment to a foreign government official to speed up a routine government action to which the payer is already entitled. Examples of routine government actions include processing visa papers, unloading or loading cargo, obtaining a permit or licence needed to enable a person to conduct business in that jurisdiction, or the provision of utility services such as phone, power and water.

A routine government action in relation to the performance of any action by a foreign public official, however, does not include (as per section 105C(1) of the Crimes Act):

• a decision about whether to award new business;

Sarah Mead Daniel King

Continued on page 10

Summary of key changes:

Changes to New Zealand’s anti-corruption laws mean that the potential legal risk associated with doing business abroad is higher than ever before:

• The penalty for bribing foreign public officials has increased – a person or company can be liable to up to $5 million or three times the commercial gain, and/or up to seven years’ imprisonment;

• Companies can be held vicariously liable for the actions of employees (which includes agents, directors and officers) unless they take reasonable steps to prevent bribery;

• The exception to the offence of bribing foreign public officials (i.e. facilitation payments) is now narrower; and

• Facilitation payments now need to be reported by companies under the Companies Act 1993.


+ Insurance and the law

Lawyers’ risk management – international trendsLaw News recently caught up with André Louw, Chairman of Jardine Lloyd Thompson (JLT) Australia Pty Ltd, to get the low-down on trends in lawyers’ risk management and professional liability insurance from the United States, and how we can expect to see New Zealand mirroring (or differing from) these over the next 12 months.

Mr Louw’s comments are in part drawn from themes discussed at a recent conference on legal malpractice and risk management, hosted by American law firm Hinshaw & Culbertson LLP, but contain some salutary tips and reminders for practitioners in this part of the world on how they conduct and protect their practices.

Increase in estate planning and probate work

Having not only a profound economic impact, but also a huge effect on legal practice, is the wave of baby boomers now reaching retirement age. Some 10,000 baby boomers are retiring in the US every day, which is not only impacting insurance premiums (as retirees stop buying life insurance and income protection insurance), but also generating a greater demand for estate planning work.

Where this becomes of potential concern to insurers is that (in the US at least), it appears that with this greater demand, a lot of lawyers who are not specialist estate or probate lawyers are taking on this kind of work as “friendly amateurs” to help out family and friends – “dabbling as dilettantes”, as Mr Louw puts it.

“In such instances, lawyers are not charging fees, not getting engagement letters, and not entering the matters on the firm’s systems. The question from the insurance point of view is, would this be covered in the event of a claim? Is it part of the firm’s business or would it fall within the ‘business pursuits’ exemption?”

Ageing populations are not exclusive to the US, however, and Mr Louw is keen to issue a similar caution to practitioners here.

“We’ve not been notified of it happening here but I’m confident it is taking place – I would be surprised if it is not. Australia and New Zealand have similar demographic profiles to the US, and not as many lawyers are specialists in this area as insurers would like to see. Lawyers are often button-holed at parties to do this kind of thing, but it can involve complicated structuring and tax questions that a non-specialist may not be equipped to handle. The concern is that a lot of risk management profiles may be being bypassed – that the work is essentially being done ‘off-piste’.”

However, he also considers that the challenges presented by the ageing baby boomer population can be viewed as a great opportunity for becoming more specialised in estate planning, wills and tax planning work, or as a chance to set up alliances with other firms who do this work.

Engagement letters and client conflicts

Lawyers are all drilled since their earliest days of legal practice on the vital importance of

engagement letters. However, according to a study done by Hinshaw & Culbertson and SwissRe, although 97% of insured law firms say that they have engagement letters in place at the time when they are completing proposal forms for insurance purposes, it seems that they are only on file 65% of the time when it comes to matters being notified.

This becomes particularly problematic when you consider the potentially complex corporate structures of today’s clients. If a firm is engaged by a client that is a parent company of a number of subsidiaries, the firm might (impliedly) end up acting for all of those subsidiaries, unless specified to the contrary in the engagement letter. And unless all of those entities are entered onto the firm’s system, they would not show up as part of a conflict search, leading to no end of headaches.

Mr Louw strongly urges that engagement letters specify who is not the client, as much as who is, and that they specifically exclude any subsidiaries who are not intended to form part of the engagement. He also suggests firms get more proactive about clarifying when they cease to act for a client or in relation to a particular matter.

“It is important in contractual terms to be able to tell whether or not a matter has been completed, but this is something lawyers are not always good at doing. A number of our law firm clients have now jumped on board with the concept of ‘dis-engagement letters’, which, as with certificates of completion issued in an engineering project, help avoid ‘project creep’.”

Cyber risk and data security

Cyber risk is on everyone’s lips at the moment (you only need to look back through Law News’ recent series on Cloud computing to understand why!). The nature of lawyers’ work (requiring them to travel, always be contactable, and handle lots of sensitive information) can make them particularly vulnerable in this regard, particularly if they accidentally leave a phone or a tablet behind.

“In the past, we’ve really only seen these claims

manifest under travel insurance policies (i.e. claims for the hardware), and a more pragmatic forgiving approach has been taken to the potential breach of security and/or loss of information. Now, however, clients (especially in sectors like financial services or health care, which deal in highly sensitive information) are asking their law firms whether they have data security measures and cyber insurance in place.”

A lot of law firms have a BYOD (“bring your own device”) policy, meaning that if a lawyer leaves the firm, the firm can wipe all of the work-related data from the device. A number of JLT’s Australian clients install software on their employees’ devices which separates the professional material from the personal, so that they can wipe the professional content when an employee moves on.

“Some clients in the US actually want to audit firms’ data security measures, and we are starting to see this more in Australia as well. At the very least, firms need to be prepared for greater visibility in terms of cyber.”

“Watch this space – cyber is going to become more of an issue, and cyber insurance will become ‘par for the course’ if firms are trying to pick up contracts and panel appointments in particularly sensitive sectors. But it is also an opportunity for firms to ‘get on the front foot’ and differentiate themselves from their competitors.”

And finally, don’t forget to notify potential claims!

Mr Louw is keen to “disabuse any misconceptions” that lawyers may have about notifying their insurers of circumstances that may give rise to a claim against them, in these or any other areas.

Lawyers can be poor at keeping insurers in the loop, perhaps because they are “generally good at fixing things”, which can lead them to think that “they’ll be able to sort it out”.

“Other types of professionals will get on the phone to us straight away when threatened with a lawsuit, but lawyers tend not to be fazed by litigation – it’s their ‘stock-in-trade’.”

While it is often thought that merely notifying a potential claim will automatically lead to increased premiums, this is not the case, and insurers actually see appropriate reporting as a positive, rather than a negative, so keep the lines of communication open.

Jardine Lloyd Thompson (JLT) is a recent addition to the suppliers involved in the ADLSI Member Benefits programme, and is one of the world’s leading providers of insurance, reinsurance and employee benefit-related advice, brokerage and associated services. JLT will endeavour to procure preferential rates on insurance products for ADLSI members. For more information, please visit the “Member Benefits Programme” tab on ADLSI’s website: www.adls.org.nz/for-the-profession/member-benefits-programme/.

André Louw

LN


Ben Thomson, Dr Duncan Thomson and Jon Nuth

Michele Stanton and David Amodeo

Professor Warren Brookbanks, his Honour Judge Philip Recordon and Jim Boyack

Seonaid Abernethy, Carole Curtis and Maxine Pitch

The ADLSI Mental Health & Disability Law Committee hosted a Christmas drinks reception at Chancery Chambers on the evening of Thursday 17 December 2015. The annual event is an opportunity to thank those with an involvement in Mental Health law in Auckland including the District Inspectors, the Auckland and South Auckland Roster lawyers, members of the judiciary and other mental healthcare professionals. 2015’s event was once again a success, with all enjoying the chance to recap on the year.

+ ADLSI event review

Mental Health & Disability Law Committee gathering

Maria Kazmierow and David Niven

Pradeep Singh and Suzanne Clark

Gavin Jolliffe, Guyon Foley and Samuel Ames

LN


The AGM of members of the Auckland District Law Society Incorporated will be held on Thursday 3 March 2016, 6th Floor, Norman Shieff Room, Chancery Chambers at 5:30pm.

AGM Business

• Annual Report on ADLS Inc

• Confirmation of President and 2 Council Members

• Appointment of auditors

• Amendments to the Rules

• Notices of motion

• General business

Any notices of motion for consideration at the meeting must be received by the Chief Executive Officer at the Society’s premises by Monday 22 February 2016 at 5:00pm.

For catering purposes, ADLSI members wishing to attend the AGM are requested to RSVP to [email protected] or 09 303 5287 by Friday 26 February 2016.

For more information, telephone (09) 303 5270 or visit www.adls.org.nz.

+ ADLSI notice

Notice of Annual General Meeting

+ News from the Courts

2016 Court of Trial Protocol

An advisory has been issued by the Honourable Justice Venning, Chief Judge of the High Court, and Judge Jan-Marie Doogue, Chief District Court Judge, regarding the 2016 Court of Trial Protocol.

The Chief Judges of the High and District Courts of New Zealand have a statutory obligation to establish a Court of Trial Protocol (section 66 Criminal Procedure Act 2011).

The Protocol lists the classes of offence for which a High Court decision is required as to the court in which the defendant will be tried.

The second revision of the Court of Trial Protocol has been gazetted and came into force today on 1 February 2016.

The 2016 Protocol makes four changes to the 2015 Protocol:

• Three new offences are listed in class 2. These deal with some offences regarding objectionable materials and arise from increased penalties in the Customs and Excise Act 1996 and the Films, Videos and Publications Classification Act 1993.

• One offence has been removed from class 1: section 176 Crimes Act 1961 (section 176 is a category 4 offence by operation of law – see section 6(2) Criminal Procedure Act 2011).

The 2016 Court of Trial Protocol can be found at https://www.gazette.govt.nz/assets/pdf-cache/2016/final/2016-01-29_Gazette_8.pdf.

For more information, please contact Helen Corrigan, Judicial Office Communications Advisor on (04) 496 3980, 021 1519970, or by email [email protected]; or Marie McNicholas, Strategic Communications Advisor on (04) 466 1323, 0278 822225, or by email [email protected]. LN

Applications for the Spencer Mason Travelling Scholarship in Law and Postgraduate Scholarship in New Zealand are now available for law graduates living within the Auckland Branch Area of the New Zealand Law Society wishing to pursue law or associated postgraduate studies in New Zealand or overseas.

• Spencer Mason Post-Graduate Travel Award – Law Graduates living within the Auckland Branch Area of the New Zealand Law Society are invited to apply for travelling scholarships to pursue law or associated post-graduate studies outside New Zealand.

• Spencer Mason Post-Graduate Scholarship in New Zealand law – This scholarship is to support a candidate for a Masters degree or a PhD at the University of Auckland Law School. The degree being pursued must include a thesis on some aspect of New Zealand Law. The scholarship is for up to $5,500 per annum. It may, on the recommendation of the Dean of Law, be extended to two years. The Scholarship will not be awarded purely on academic grounds. All the circumstances of applicants will be taken into account. Applicants must reside in the Auckland Branch Area of the New Zealand Law Society and be graduates in Law of the University of Auckland.

Applications for the 2016 awards close on 31 March 2016. Further particulars, including application forms and regulations governing the awards, are available from The Secretary, Spencer Mason Trust, PO Box 1934 Shortland Street, Auckland. Telephone (09) 927 9447, email: [email protected].

+ Legal education, scholarships

Spencer Mason Scholarships

LN

ADLSI invites the legal profession to come together at a breakfast with the Attorney-General, the Hon Chris Finlayson QC, to be held at the Northern Club on Friday 11 March 2016.

Please note the date change of this breakfast from 19 February 2016, as was previously advertised.

ADLSI would be delighted if you would join us at this event to hear an address from the Attorney-General. The Attorney-General will also be happy to answer questions following his presentation.

Date: Friday, 11 March 2016

Timing: 7.15am for 7.30am start

Dress code: Business attire

Venue: Northern Club, 19 Princes Street, Auckland

Tickets: $40.00 + GST ($46.00 incl. GST) for ADLSI members and the judiciary;

$55.00 + GST ($63.25 incl. GST) for non-members.

Spaces are limited so register before Friday 4 March 2016 to secure your space (subject to availability), by contacting us on [email protected] or (09) 303 5287.

ADLSI’s standard cancellation policy applies for this event.

+ ADLSI event

Breakfast with the Attorney-General, 11 March 2016

LN

The Hon Chris Finlayson QC


+ New book

Company Law in New Zealand, 2nd Edition

In Bonner v Evans CIV-2009-404-4527, 17 November 2009, the High Court set out the relevant tests that would satisfy the presence requirement in the Wills Act, i.e.:

(i) whether the witnesses could have seen the testator sign if they had chosen to look; and

(ii) whether the testator could have seen the witnesses sign had they chosen to look.

Presence in terms of witnessing signatures for wills requires visibility, and there is some uncertainty as to whether blind witnesses are competent witnesses. For an effective acknowledgement, the will-maker must be in the same room as the witnesses and must ensure the witnesses have the opportunity of seeing the signature or indicate to the witnesses that the signature was made by another person at the will-maker’s direction and in his or her presence.

Although New Zealand has a presence requirement when it comes to the practice of witnessing wills, there is no explicit presence requirement for otherwise signing other documents. The argument could run both ways. On the one hand, one could argue that the presence requirement is outdated in an age of e-dealing, online transactions and software allowing people to sign documents on an iPad well away from the eyes of a lawyer. On the other, arguments can also be made for the presence requirement as it reduces the possibility of coercion or, in a worst case scenario, identity fraud.

In all transactions, lawyers must be confident that clients are entering into the agreement freely and willingly. As witnesses, they must ensure that there is no coercion or physical threat present which may later invalidate the agreement. However, direct threats might not be visible when witnesses are relying on video link to communicate. Neither party can visualise the entire room at the other end. As a result some argue that the process could therefore be open to manipulation and agreements struck under such circumstances therefore vulnerable to later being attacked for lack of validity.

A further concern is whether the use of videoconferencing might compromise the privacy of the exchange between lawyer and client. Aside from the possibility of their communications being accessed or recorded by others, it may be that, without knowing who else was present in the room at the time, either party could unwittingly disclose information that is overheard by others.

One reason why legal transactions (like those concerning relationship property) are conducted in person is to ensure understanding. The Property (Relationships) Act 1976 expressly provides that lawyers who witness the signature of a party must certify that they explained to the party the effect and implications of the agreement. It may be the case that, by conducting this process via video link, practitioners are unable to pick up on social cues which might indicate that one or both of the parties may not truly comprehend the effect of what they are signing.

In New Zealand, there are known methods of mitigating some of the risks associated with videoconferencing technology regarding the verification of a signatory’s identity. One of those methods is RealMe – a service created by the Department of Internal Affairs and New Zealand Post that has the backing of the government. RealMe is currently being used by Work and Income’s secure online services, and it is nearly impossible for someone’s RealMe account to be hacked because of the service’s comprehensive authentication system. This government-approved service serves as an online guarantee of identity through its verified accounts, and is poised to eliminate some of the uncertainty surrounding the signatory procedures in this technological age.

Currently, the greatest risk in this area of law for practitioners is the uncertainty which they will face when deciding whether or not to go ahead with Skype witnessing. Whilst many practitioners are in favour of using Skype for this purpose, the legal position is unsettled and has not been sufficiently tested by litigation. As such, while Skype witnessing does not (in principle) appear to present many difficulties, there will be some level of risk which practitioners should be aware of when proceeding with this course.

Continued from page 2, “Videoconferencing technology and the witnessing of documents”

LN

Highly experienced insurance litigator Caroline Laband has joined DLA Piper as a partner.

Ms Laband has 15 years’ New Zealand and UK experience, most recently as senior associate in a New Zealand firm.

Ms Laband moved to New Zealand in 2008 from the UK where she practised as a barrister at the prestigious 7 King’s Bench Walk Chambers, recognised as the pre-eminent law insurance chambers in London. Her appointment increases the firm’s presence in New Zealand to 24 partners, 29% of whom are female.

“Caroline’s international knowledge and experience are a natural fit with DLA Piper, a firm capable of delivering access to global best practice and expertise across borders, sectors and specialities worldwide,” says DLA Piper New Zealand Chairman, Martin Wiseman.

“This is an exciting time to be joining the insurance practice at DLA Piper New Zealand and the wider firm generally,” says Ms Laband. “Issues arising from the Canterbury earthquakes continue to occupy the industry, and the market is facing new challenges. These include the changes to Fire Service funding, the new EQC Act, bedding in of the Fair Insurance Code and the rise of cyber insurance.”

+ Appointments

DLA Piper appoints new partner

Caroline Laband

LN

Authors: P Watts, N Campbell, C Hare

Company Law in New Zealand, 2nd Edition provides a comprehensive discussion and analysis of the principles of company law in New Zealand. Key changes from the first edition include the addition of current case law, expanded discussion of administration during insolvency proceedings and discussion of the amendments to the Companies Act 1993 and Limited Partnerships Act 2008 that came into force in 2014.

Price: $160.87 plus GST ($185.00 incl. GST)*

Price for ADLSI Members: $144.78 plus GST ($166.50 incl. GST)*

(* + Postage and packaging)

To purchase this book, please visit www.adls.org.nz or contact the ADLSI bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: [email protected].


Selected CPD CPDTo view all ADLSI CPD & register: www.adls.org.nz/cpdEmail us: [email protected] Phone us: 09 303 5278

Featured CPD

7. 10 hour 8. On demands6. Webcast5. Forum

1. Seminar 2. Webinar 3. Workshop 4. Conference

Live stream



Seminar

Tuesday 1 March 2016 4pm – 6.15pm

2 CPD HOURS

Health and Safety at Work: Getting Reform-Ready A new health and safety regime comes into effect on 4 April 2016. This seminar will shed light on the new legislation, provide insights into how WorkSafe will enforce the regime, and offer advice on how best to comply with the provisions of the Act as well as how to deal with prosecutions, if they occur.

Learning Outcomes:• Gain an understanding of the new legal duties which will apply under the legislation (including the obligations of due diligence for officers) and how they can be met by your clients.

• Learn about the functions and powers of WorkSafe’s health and safety inspectors and their likely approach to duty holders.

• Understand the penalty regime which will apply under the legislation and the new enforcement powers which will be available.

Who should attend?Health and safety lawyers, in-house counsel, employment lawyers, civil litigators, insurance litigators, criminal lawyers, those advising on company and governance issues as well as general practitioners and commercial lawyers.

Presenters: Fletcher Pilditch, Barrister, Richmond Chambers; Mike Hargreaves, Chief Legal Adviser, WorkSafe; Sam Moore, Associate, Meredith Connell

Wednesday 24 February 2016 12pm – 1pm

1 CPD HOUR

Commercial Law Series: Shareholders’ Agreements – A Shag for Every Purpose When it comes to shareholders’ agreements, one size does not fit all. There are several situations where shareholders’ agreements are used, for different purposes and requiring different features. This webinar will compare and contrast the different types of shareholders’ agreements. It will also consider what you should include in a shareholders’ agreement to make it fit for purpose.

Learning Outcomes:• Understand when a shareholders’ agreement is necessary.

• Learn about tailoring shareholders’ agreements for different types of businesses and different ownership interests.

• Understand why provisions that are essential in some forms of shareholders’ agreement are counter-productive in others.

Who should attend?Corporate/commercial lawyers. General practitioners, as well as those who provide structuring advice to companies and shareholders, are likely to find this topic of interest. Accountants, directors and shareholders may also benefit from attending.

Presenters: Andrew Simmonds, Partner, Simmonds Stewart; Julie Fowler, Partner, Simmonds Stewart

Child Support: Understanding and Working with the Formula Despite changes to Child Support having taken effect in April 2015, many lawyers do not fully comprehend the formula itself, nor the implications of the changes. This webinar will cover both the current situation and the fresh suite of changes due to take effect in April 2016, enabling you to better advise your clients and strategise accordingly.

Learning Outcomes:• Gain a better understanding of the Child Support formula, its components and flexibility, including through worked examples in the written materials.

• Learn more about working with the formula, CoCA and relationship property matters, and how to craft a robust order.

• Gain insights into the enforcement of orders and IRD’s approach.

Who should attend?Family lawyers at all levels who deal with care of children and relationship property matters.

Accountants, tax advisers, refuge managers and family budgeters etc may also benefit from attending.

Presenter: Jan Chappell, Senior Solicitor – Legal and Technical Services, Inland Revenue

Chair: Brian Carter, Barrister, Bastion Chambers

Wednesday 17 February 2016 12pm – 1pm

1 CPD HOUR

Thursday 10 March 2016 4.30pm – 6.45pm(note new timeslot)

2 CPD HOURS

Company Directors: Risk of Civil Liability to Third Parties The risks for company directors of civil liability to third parties are many and varied. This seminar will address liability in tort, under the Fair Trading Act 1986 and Companies Act 1993, to investors and in relation to Phoenix companies.

Learning Outcomes:• Gain insights into potential liability for directors and promoters in relation to investors.

• Refine your understanding of the application of the ‘creditor protection’ duties in ss 135 and 136 of the Companies Act.

• Learn about the risks for directors in relation to Phoenix companies.

Who should attend?Litigators, commercial lawyers, general practitioners and in-house counsel of all levels of experience. Company directors, finance company promoters, accountants, mediators and members of disciplinary tribunals may also benefit from attending.

Presenters: Daniel Kalderimis, Partner, Chapman Tripp; Chris Noonan, Associate Professor, Faculty of Law, University of Auckland

Chair: The Honourable Justice Edwards



Webinar



Webinar



Live stream



Seminar


Selected CPD CPDTo view all ADLSI CPD & register: www.adls.org.nz/cpdEmail us: [email protected] Phone us: 09 303 5278

Featured CPD

AIR NEW ZEALAND AIRPOINTS™ HAVE ARRIVED AT ADLSI

Assemble your case

Terms and conditions apply.

ADLSI MEMBERS AND NON-MEMBER LAWYERS CAN NOW EARN AIRPOINTS DOLLARS™ ON ADLSI CPD PURCHASES.

FIND OUT MORE AT ADLS.ORG.NZ

ZADSL0009_ADLSI Airpoints print ads_all sizes_AW_2.indd 5 14/09/15 1:59 pm

CPD in Brief

Employment Issues in the Immigration Context – 2 CPD hrs Tuesday 16 February 2016, 4pm – 6.15pmEmployment issues in the immigration context (and, equally, immigration issues in the employment context) can raise complex and novel issues for lawyers. Recent amendments to the Immigration Act 2009 also impact on how lawyers advise both employers and employees. This seminar will give attendees insights from both Immigration New Zealand (“INZ”) and lawyers practising in these areas.

Presenters: Simon Mitchell, Barrister, Unity Chambers; Peter Moses, Barrister; Fleur Gray, Technical Advisor – Henderson, Visa Services, Immigration New Zealand, MBIE; Chair: Peter Moses, Barrister

Property Law Half-Day Conference – 4 CPD hrs Tuesday 23 February 2016, 12.30pm – 5pmEarly bird pricing extended to 16 February 2016 Enhance your property law practice and become updated in recent developments through this intensive 4-hour session.

Topics: End of Lease Obligations: Don’t be Caught Out!; The Keys to Unlocking Landlocked Land; Tenancy in Relation to Sale and Purchase Agreements; Resource Management: Considerations and Tips for Property Lawyers; Residential Property Tax: Shedding Light on New Legislation

Accounting Principles You Need to Know to Become an Effective Commercial Lawyer – 2 CPD hrs Tuesday 15 March 2016, 4pm – 6.15pm

Understanding accounting principles and financial statements is vital in effectively advising on M&A mandates. This seminar will provide both legal and accounting insights that will assist you in identifying key risk areas for due diligence and better understanding the different purchase price mechanisms, completion adjustments and deferred purchase price considerations.

Presenters: Tom Logan, Senior Associate, Minter Ellison Rudd Watts; Simon Peacocke, Partner, BDO Auckland

Chair: Andrew Lewis, Principal, Andrew Lewis Law

CPD On Demand

Drafting Better Pleadings – 1 CPD hrThe ability to draft pleadings well is a core skill of any litigator and increasingly so given that pleadings have recently been re-introduced into the District Court. Commonly, the time needed to prepare pleadings is constrained by the lawyer’s other competing priorities and the client’s financial limitations. This On Demand webinar provides an opportunity for litigators to receive invaluable guidance from the Bench to assist in drafting better pleadings.

Presenter: The Honourable Justice Duffy

Rural Law Series: The Ins and Outs of Rural Syndications – 1 CPD hrAs farms have grown in size, value and complexity, there has been a clear move away from family-owned enterprises to syndicated agricultural entities. Syndication has obvious advantages for farmers and investors alike but the process is complex and needs to be handled with care from start to finish. This On Demand webinar will discuss why farmers may want to syndicate in the first place and how the syndication process is managed.

Presenter: Brett Gould, Partner, Gibson Sheat

A ‘Capital Idea’ – Getting to Grips with the New Residential Property Tax – 1 CPD hr Taxing the gains from property speculation as a mechanism to cool down the overheated Auckland property market is a significant Government initiative with proposed new “bright-line” tax rules which took effect on 1 October 2015.Presenter: Denham Martin, Barrister

CPD Pricing

Delivery Method Member Pricing Non-Member Pricing

Webinar $75.00 + GST (= $86.25 incl. GST) $95.00 + GST (= $109.25 incl. GST)

Seminar (in person) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST)

Seminar (live stream) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST)

On Demand (1-hour recording) $85.00 + GST (= $97.75 incl. GST) $110.00 + GST (= $126.50 incl. GST)

On Demand (2-hour recording) $95.00 + GST (= $109.25 incl. GST) $130.00 + GST (= $149.50 incl. GST)

For group bookings for webinars & CPD On Demand, see the ADLSI website at: www.adls.org.nz/cpd/help-and-faqs/group-bookings/.











On Demand



On Demand



Seminar



Live stream



Seminar



Live stream



Conference



On Demand


Continued from page 3, “Organised Crime and Anti-Corruption Legislation Bill”

• a decision about whether to continue existing business with a particular person or body;

• a decision about the terms of new business or existing business; or

• a decision that is outside the scope of the ordinary duties of that official.

The exception now also excludes any action that provides an undue material benefit to a person who makes a payment or an undue material disadvantage to any other person.

It is also now a requirement for companies to keep a record of their facilitation payments (Companies Act section 194(1A)).

Advice for clients operating abroad

In light of the increased legal liability and the potential for businesses to be held vicariously liable for their employees’ actions, now is a good time for businesses to take proactive steps to identify and respond to risks of foreign bribery in their organisations.

A Deloitte survey conducted in 2015 of about 270 public and private sector organisations across New Zealand and Australia found that, of organisations operating in high-risk jurisdictions, 35 per cent experienced offshore bribery and corruption in the past five years, up from 21 per cent in 2012. Just 31 per cent had a comprehensive understanding of the relevant legislation (see Deloitte “Bribery and Corruption Survey 2015 Australia & New Zealand: Separate the wheat from the chaff” (2015), pages 8-9).

No compliance programme can eliminate all risks but having a robust system in place, rather than feigning ignorance of potential risks, will serve you better in a court of law. The following steps can help minimise the legal and reputational risks associated with doing business overseas:

1. Governance - A company or organisation’s board must be committed to combating bribery. Senior executives must be held accountable for operating in an ethical manner, and any compliance or ethics programme needs to be anchored at the board level to be taken seriously.

2. Conduct a risk assessment - Start with TINZ’s “Corruptions Perception heat map” (https://www.transparency.org/cpi2014/results). It will give an indication of how corrupt the public sector is in the geographical area in which your business is operating. Have confidential conversations with employees such as country managers, procurement, sales and finance staff in those countries.

People on the ground generally know more about what is going on than the people miles away in the head office. New Zealand Trade and Enterprise is also a source of knowledge, based on its work with over 700 exporters.

3. Develop a policy - Your company needs a clear policy not only on facilitation payments, but also with respect to bribes, gifts, fraud, conflicts of interest, charitable contributions and political donations. Ideally, businesses will adopt a policy that prohibits bribes of any kind, including facilitation payments.

While the use of facilitation payments may increase the immediate ease of doing business in foreign places, these payments promote a culture of corruption which in the long-term is detrimental to the company as the line between what is legal and illegal becomes blurred.

4. Conduct training regularly - Make sure employees understand what they should do in given situations. A good place to start would be the TINZ free e-leaning tool developed with Business New Zealand and the Serious Fraud Office (http://www.transparency.org.nz/Anti-Corruption-Training).

5. Accountability - This is the most important part. Staff need to know that, if they engage in unethical behaviour, there will be serious consequences including for senior management involved in any scheme.

6. Reporting mechanism - Employees need to know to whom to turn if they have questions or if they want to raise a concern. Many larger

companies use external ethical hotlines, but internal mechanisms can work as well. Any reporting mechanism should include appropriate protections for staff that make any reports.

7. Communicate - Continuous communication to employees about your programme is important. Once it is embedded, start communicating it to your agents, distributors, business partners and suppliers.

8. Monitoring and assurance - Once implemented, it is important that any compliance programme is not forgotten about, but constantly monitored by management to ensure that it is working.

9. Due diligence - Incorporate bribery and corruption risks into your due diligence process before engaging with all intermediaries, and ensure adherence to your policy is binding in all contractual agreements.

Developing a programme does not have to be complicated and the above steps can be used by both large and small companies. It is also critical that management ensures there is an open culture where employees feel comfortable about raising concerns, and feel those concerns are being addressed.

The Ministry of Justice has released guidelines which encourage businesses to eliminate facilitation payments given the risks involved in using them (“Saying No to Bribery and Corruption – A Guide for New Zealand Businesses” and “Facilitation Payments and New Zealand’s Anti-Bribery Laws”). It has also released guidance on how to create an effective fraud and corruption compliance programme (http://www.justice.govt.nz/policy/criminal-justice/bribery-and-corruption).

Building a compliance programme does not need to be complicated but it should be in proportion to your risk profile, have top-level commitment and identify the main risks to your organisation. TINZ has been working with various players, including business, over the years to develop tools and best practice for combating bribery and corruption (see for example its “Corruption Assessment toolbox” http://www.transparency.org/whatwedo/tools/gateway_corruption_assessment_toolbox/0). See also TRACE International “The High Cost of Small Bribes” (2015).

Why advise your clients on this?

Corrupt conduct overseas damages the reputation of New Zealand business as operating with a high degree of honesty and integrity.

In addition to reputation, companies that engage in foreign bribery and/or facilitation payments increase the risk of financial penalties and/or imprisonment, not only in relation to New Zealand legislation, but potentially overseas legislation as well. For example, non-compliance with the US Foreign Corrupt Practices Act has resulted in heavy penalties for both US and non-US based companies and organisations. The UK Bribery Act also affects any New Zealand companies with offices or operations in the UK. Both Acts cover any foreign bribery acts committed in third countries.

International enforcement is also improving. For example, China is taking a harder stance on corruption and New Zealand’s Serious Fraud Office is showing a willingness to pursue foreign corruption cases – at present there are four ongoing investigations. With respect to the former, it pays to remember that, while facilitation payments remain legal under New Zealand law, they are illegal in almost all countries where they are made (as they would be if they were made in New Zealand).

So the best advice to give to your clients developing a compliance programme: a bribe is a bribe no matter what the amount.

Transparency International New Zealand (TINZ) actively promotes the highest levels of transparency, accountability, integrity and public participation in government and civil society in New Zealand, the Pacific Islands and the world. TINZ is a member of Transparency International, the international organisation leading the movement to eradicate corruption and bribery wherever they occur. LN


BARRISTERS CHAMBERS – High Street

An additional member is sought to join three experienced barristers in our newly refurbished, light filled, contemporary, collegial High Street chambers. On offer is a large, attractive corner office formerly occupied by senior counsel with harbour views and substantial storage.

The modern office amenities include a large meeting room, kitchenette, adjacent car parking building and availability for secretarial and junior barrister support. Terms negotiable including monthly tenancy.

Please contact Alex McDonald [email protected] or Stuart Ryan [email protected]

We require a Legal Accountant for our busy North Shore

practice. Experience in MYOB and ASB Fastnet Business would be an advantage.

Apply in writing with CV and references (if any) to: Solicitor, Donnell and

Associates

PO Box 334050 Sunnynook Auckland 0743

Email: [email protected], Fax 4430516

LEGAL ACCOUNTANT

SOLICITOR - LITIGATIONWe are a boutique firm specialising in unit titles advice and disputes based in Waitakere City looking for a newly admitted or about to be admitted solicitor to work in our litigation team.

The role is primarily debt collection but with scope to expand to other litigation areas. The successful candidate will be available to start in early/mid April 2016.

Please apply to Price Baker Berridge by email to [email protected].

Applications will close on 26 February 2016.

WILL INQUIRIES LAW NEWSThe no-hassle way to source missing wills for

$80.50 (GST Included)Email to: [email protected]

Post to: Auckland District Law Society Inc.,PO Box 58, Shortland Street, DX CP24001, Auckland 1140

Fax to: 09 309 3726 For enquiries phone: 09 303 5270

+ Wills

Please refer to deeds clerk. Please check your records and advise ADLSI if you hold a will or testamentary disposition for any of the following persons. If you do not reply within three weeks it will be assumed that you do not hold or have never held such a document.

Brian Phillip McKEWEN, late of Kowhai Lodge, C4 833 Kingseat Road, Papakura, Auckland, Aged 51 (Died 29’04’15)

Ganesh NARAYAN, late of Mangere, Auckland, Aged 69 (Died 30’12’15)

Elisapeta PASA-ANESONE, late of Mangere, Auckland, Aged 43 (Died 31’08’14)

Bradley Mark SYRED, late of 13 Turakina Street, Grey Lynn, Auckland, Aged 32 (Died 02’01’16)

Chancery ChambersRooftop Terrace for hire

2 Chancery Street, Auckland CBD

Let ADLSI host your next event.

The roof garden at Chancery Chambers offers a stunning setting for events, such as weddings, Christmas parties, product launches, and cocktail evenings.

Discounted rates for ADLSI members.

www.adls.org.nz for more information and rates

A range of offers, available to ADLSI members, from carefully selected suppliers.

Member BenefitsProgramme

To view the latest offers visit www.adls.org.nz

On Mayoral Drive in the City

[email protected] www.copybook.co.nz

Ph: 303 4716

Before you rest your case,give it to us to copy.Present us with your evidence, disclosures, profiles, submissions, reviews or recommendations. We’ll not only copy to one or both sides of paper but also collate, design, publish, bind, finish, laminate or whatever else you want us to do with them. And we’ll pick up and deliver.


a solicitor with at least 3 years post qualification experience to join our expanding practice.

Ideally, you will have experience in commercial and residential property transactions, leases, trusts, companies, estates and the wide variety of work generally encountered in general practice. You need to be able to work with minimal supervision and basic training, and have a desire to expand your experience and grow a client base.

Ideally you will have gained client confidence and loyalty in your current position and can bring with you your personal client base. You may well have a specialty area of law that you wish to develop and expand.

We have a well located and appointed office and a congenial team of lawyers and legal executives. The future possibilities within the firm are not limited, for the right candidate.

In the first instance; email your CV and contact details to the director;Graeme Skeates [email protected].

skeates lawL I M I T E D

EXPERIENCED SOLICITOR REQUIRED Skeates Law Limited is a general practice located in Newton/Grafton, Auckland. We are seeking to employ

Our clients are some of the most successful people around. Come and join us and associate with success.

We have a full time position, ideal for an intermediate lawyer with 4 years + PQE in our Relationship Property/Family team:

The ideal candidate will have:

• ExperienceinallaspectsofRelationshipProperty,Trust, Company and Family Law• LegalAidleadproviderstatuspreferable• Aclientfocussedattitude• Aprofessionalmanner

DenhamBramwellisawellestablishedlawfirminManukauthatisprogressiveandcanoffertherightperson:

• Adiverserangeofclientsofculturalandsocioeconomic background• Excellentlearninganddevelopmentopportunities• Ahighperformanceculturethatisfunandcollaborative• Thisisanopportunitytoworkinabusy,dedicated andfunteamcomprising2partners,1associate, 3solicitors,1legalexecand3legalassistantswho provideasupportiveworkingenvironment.

PleasesendyourapplicationincludingyourCVandacover letterbyFriday19February2016to

[email protected]

Thankyouforyourinterest.Onlythosecandidatesselected forinterviewwillberespondedto.

skype – does it have a future in the legal context? doing...

Documents