E-Discovery
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Thursday, 11 October 07 - 12:38 PM (GMT) By John ML Dierckx in Legal |
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"E-Mail Accountability"
Rough Notes (10/07) ; Doucette, Nancy
Companies can avoid often costly electronic records problems by subscribing to an application that provides legal admissible evidence of delivery content, date sent and received, and other storage information.
One such email program is RPost Registered E-Mail, which Frankel & Associates Owner Randle Frankel says saved him a lot of headaches when a request to an underwriter about adding a property to an endorsement was lost. The receipt he received from RPost's program provided the underwriter with the time and date stamp, as well as the content sent and received to prove the request had been made prior to a loss incident involving the add-on property. However, not all email messages will need to be registered, which is why businesses must ascertain which emails should receive archiving priority. The application also allows users to change attachments into PDF files, eliminate meta data from attachments, compress attachments, provide electronic signatures, engage in electronic contracting to some extent, and encrypt messages. RPost reconstructs lost emails for users and receivers, and the service is easy to use after companies sign up for an account on the firm's Web site; the cost per message is about the same as U.S. postage stamps.
The program merely adds an additional button to email programs, allowing users to choose to send certain emails as registered. RPost CEO Zafar Khan says the first 10 emails using RPost Registered E-Mail are free. With the advent of new e-discovery rules, RPost's email system can provide users with peace of mind because algorithms in the message prove its authenticity and registration alerts senders and receivers that the original content of the message can be tracked. Khan also points out the service is easy to install and use and does not require the expertise of an IT department; Council of Insurance Agents & Brokers (CIAB) Director of Strategic Technology Frank Sentner says, "The fact that agencies used to take the time and trouble to use registered mail and to have written procedures that instructed staff under what circumstances they should be using registered mail, indicated to me that with the significant move to email, something needed to be done as a process improvement." CIAB and the Risk and Insurance Management Society (RIMS) both endorse RPost for their members.
See more hereAre You Prepared Yet? The Unsolicited Electronic Messages Act 2007
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Friday, 08 June 07 - 04:00 PM (GMT) By John ML Dierckx in Legal |
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On 27 February 2007 the Unsolicited Electronic Messages Act 2007 passed. The Act will be in force on 5 September 2007. The Act was passed earlier this year but some time has been given to adjust our practices. New Zealand is one of the last OECD countries to have anti-spam legislation. But now it can now play its part in the global fight against spam. It allows the enforcement agency to work with international counterparts to help close down and prosecute the worst global spammers. Spam is a serious cost to both business and consumers: it clogs up inboxes, wastes time and resources, and is a vehicle for scams and malicious software.
In this blog some of the implications of this Act will be discussed. It also serves as a gentle reminder for those that have not started to evaluate and adapt their electronic messaging practices.
The Unsolicited Electronic Messages Act 2007 aims to prevent New Zealand becoming a haven for spammers by prohibiting unsolicited commercial electronic messages and requiring senders of commercial electronic messages to include accurate sender information and a functional unsubscribe facility.
The Act establishes a set of requirements for senders of electronic messages that are likely to have a significant impact on many organisations; especially those organisations involved in direct marketing.
The full text of the act can be accessed here
The Government believes that this legislation will reduce:
- hindrances to the uptake and effective use of information and communications technologies
- the cost to businesses and the wider community that arises from spam
In an article on Beehive.govt.nz, Cunliffe advised
"This legislation enables Kiwis to join the global fight against spam," Mr Cunliffe said. "International cooperation to identify, shut down or block the sources of spam is an important part our anti-spam strategy.
"Unsolicited commercial electronic messages, commonly known as spam, are estimated to make up around 80 per cent of all email traffic worldwide. Spam clogs networks, reduces productivity and is often used for scams and malicious cyber-attacks."
The act prohibits persons from using address-harvesting software or a harvested-address list in connection with the sending of unsolicited commercial electronic messages.
It applies to all emails, texts and instant messages that market or promote goods, services, and other schemes of a commercial or dishonest nature.
"There is a six-month transition period before the law takes effect," said Mr Cunliffe. "This will give organisations a reasonable period of time to ensure their email practices and databases comply with the act.
"This law is another important step towards greater Internet security. It will clamp down on spam of a domestic origin and provide a platform for seeking an international agreement to fight spam world-wide.
"While the government does not pretend this new law alone will solve the spam problem, it will enable us to fight New Zealand-sourced spam and enter into international agreements concerning international enforcement of anti-spam legislation, sharing of information between national enforcement agencies, and the pursuit of cross-border complaints concerning spam."
Source: Spam avalanche targeted by landmark new law
Commercial Electronic Messages
The Act applies to commercial electronic messages.
Electronic messages are defined broadly as messages sent using a telecommunications service to an electronic address.
This definition includes:
- information in any form or combination of forms (including text, data, sound and images)
- information sent to any address used in connection with an email account, an instant
- messaging account, a telephone account, or similar account.
Voice calls (using a standard telephone service or VOIP) and faxes are expressly excluded as electronic messages. As a result they are not subject to the requirements of the Act.
Commercial
A message is considered to be a "commercial electronic message" when:
- the message markets or promotes goods, services, land, an interest in land or a business opportunity
- the message assists or enables a person to obtain dishonestly a financial advantage or gain from another person
- provides a link, or directs a recipient, to a message that does one of the above things.
However, there are exceptions, for instance if the message provides a quote or estimate for the supply of goods or service that was requested by the recipient
Prohibitions & Requirements Under the Act
In summary, the Act:
- prohibits the sending of commercial electronic messages with a New Zealand link - whether in the form of email, text message or instant message - unless the receiver consented to receiving such message
- requires a functional unsubscribe facility: facility that allows the recipient to notify the sender that no further commercial electronic messages should be sent to that electronic address. This facility must furthermore allow the recipient to respond free of costs to the sender using the same method of communication that was used to send the initial message (such as unsubscribing/opting out by replying to the email received)
- requires any commercial electronic messages sent to include information which enables the recipient to accurately identify the person who authorised the sending of the message and to contact that person
- prohibits the use of address-harvesting software or a harvested-address list in connection with, or with the intention of, sending unsolicited commercial electronic messages in contravention of the Spam Act.
Address-harvesting software is software that is capable of searching the internet for electronic addresses and collecting, compiling, capturing, or otherwise harvesting those electronic addresses.
Penalties
The Act establishes a civil penalty regime where a Government enforcement department or an individual "victim" may take action against another on the basis of breach of the Act.
The enforcement department, in case of a breach of the Act can:
- issue a formal warning to the perpetrator;
- issue a contravention notice to the perpetrator specifying a penalty to be paid
- accept an enforceable undertaking from the perpetrator. If subsequently the undertaking is breached, the enforcement agency can seek an order from the High Court in respect of that breach
- seek a performance injunction or restraining injunction from the High Court; and
- make an application to the High Court for a pecuniary penalty and/or for compensation or damages on behalf of another person. Penalties of up to $200,000 for an individual and $500,000 for an organisation may be ordered.
The Act furthermore establishes the possibility for the enforcement department to apply to the District Court for a search warrant which may include authorisation to seize property, where a breach or future breach of the Act is suspected.
An individual claiming to be the victim of another person's breach of the Act may summarily seek an injunction from the High Court and/or make an application to the High Court for compensation or damages.
Compliance Considerations
Prior to the Act coming into force on 5 September 2007 business organisations will need to address the issue of obtaining the consent of (existing and future) email recipients to receiving commercial electronic messages.
Consent
Consent under the Act can be:
- express
- inferred on the basis of conduct and/or relationships of the persons concerned
- deemed where:
(i) the recipient's electronic address has been published
by a person in a business or official capacity; and
(ii) the publication of the address is not accompanied by
a "no spam" statement (similar to a "no circulars" statement on a letter box); and
(iii) the message sent to the address is relevant to the
recipient's business, role, function or duties.
In practice, this means that you will need to check your marketing lists and ensure that each intended recipient has provided "consent" in one of the ways described above. Records of documents proving "consent" should be kept on file for evidential purposes.
The accurate information
Every commercial message must include accurate information that identifies the sender and that allows the recipient to contact the sender.
This is easily achieved with emails. The is different requirement for text messages and instant messaging. In the case of text messages, space is at a premium so could be problematic to get all the required information in the messsage.
In the case of instant messaging, it requires the use of an accurate username like "DierckxandAssociatesLtd". "Chchsnoop" is not going to be sufficient that is unless the full name is incorporated into the body of the message.
There is no provision under the Act to contract this requirement out. However, since most businesses will want to promote their corporate identity and contact details this will most likely not be a problem.
Unsubscribe function
You will also need to configure all outgoing commercial electronic messages in such a way that the messages:
- have a functional unsubscribe facility
- clearly disclose the identity of the sending organisation and provide contact details of the organisation
Every commercial message must contain a functional unsubscribe facility, expressed in a clear and conspicuous manner. This calls for an explicit reference to unsubscribing, for example, “Reply to the email with ‘unsubscribe’ in the subject line if you no longer wish to receive emails from us.” Relying on a receipient's initiative to reply and ask to be removed will not be sufficient.
This issue has recently been addressed by the UK Advertising Standards Authority. In February 2007 in ruled against World Networks Ltd. World Networks had sent a text to Orange customers offering them a new phone. It finished the message with “Opt-out available”.
The ASA held that the words failed to meet the requirements for an unsubscribe function.T he standard in the UK is similar to the New Zealand one.
Alternatives: the good ol' fax or telemarketing.
As an alternative, you might want to reconsider getting that old dusty fax machine in your storage space geared up again or using telemarketing since these types of communication do not fall under the Act.
In any event, if you have not already set in place procedures to ensure compliance with the Act, this is the time to do so.
Organisations heavily involved in direct marketing, may want to consider allocating the responsibility of maintaining marketing lists to certain (dedicated) staff members. The responsibility will necessarily also include removing parties from marketing lists upon receipt of a notification that someone no longer wishes to receive messages.
A planned compliance strategy is critical to reducing disruptions once the Act
comes into force. You have until 5 September 2007 which is just around the corner. A great way to get you through the dark winter months.
- The full text of the act can be accessed here
- The Marketing Association Email Guidelines
- The Marketing Association Important Notice
- Parliamentary Documents
- Martins, A Marketers Guide
Finally
The future will show whether the Act will have any real impact on the receipt of spam in New Zealand. It is understood that the majority of spam originates from overseas. The Act will however play a useful role in ensuring New Zealand based spam is minimised, and that spammers don’t migrate to New Zealand.
However, the Government is of the opinion that the Act will enable New Zealand to enter into international agreements concerning international enforcement, sharing of information between national enforcement agencies, and the pursuit of cross-border complaints.Disclaimer: This publication is general in nature and shall not be read as legal or other professional advice. You should at all times seek professional advice before taking any action in relation to the matters dealt with in this publication.
Conveyancers, Lawyers, Banks, and Customers Choice
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Wednesday, 06 June 07 - 02:09 AM (GMT) By John ML Dierckx in Legal |
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Since some time by now the so called Lawyers and Conveyancers Act is force. The Bill, as its Title indicates, relates to both lawyers and conveyancers. The Bill provides for the registration of conveyancers and ends the legal profession's exclusive right to provide conveyancing services. This was quite revolutionary, since lawyers in New Zealand have always worked hard to keep their monopoly when it came to real estate.
Conveyancing
For the less informed reader it is perhaps good to describe first what conveyancing is.
Conveyancing is a term used to describe the whole of the process of putting a property on the market, concluding an agreement to sell and buy, and then transferring ownership of the property from the vendor to the purchaser. In fact, conveyancing is only one part of this procedure.The Bill (read full text of the bill here)
Traditionally this has been an area of practice that was the monopoly of lawyers. The Lawyers & Conveyancers Bill broke through this by establishing the option of so-called specialist non-lawyer conveyancers who are now working in competition with the lawyers.
"The purposes of the Bill are the maintenance of public confidence in the provision of legal services and conveyancing, the protection of consumers of those services, a more competitive and flexible professional environment, and the encouragement of a more responsive regulatory regime.The bill however could have further implications and is not just dealing with lawyers and conveyancers. Some of the most common changes coming with this bill are:
The Bill repeals the Law Practitioners Act 1982. That Act no longer meets the needs of the legal profession or consumers and inhibits professional responsiveness to changing market needs."
- The establishment of a new profession:conveyancing practitioners, able to carry out conveyancing work in competition with lawyers
- Law firms are allowed to form limited liability companies, subject to restrictions on who may be directors and shareholders and personal liability of directors and voting shareholders for theft by the firm or its directors, employees or agents from a client (as well as continued liability for their own acts and omissions)
- The replacement of Queen's Counsel by Senior Counsel, with appointment being open to lawyers in all forms of practice, not just barristers sole
- The end of compulsory membership of District Law Societies
Besides that, yes there is more, the Act establishes certain "reserved areas of work" which it is an offense for a person who is not a lawyer to carry out work in for gain or reward. Any person may provide legal services outside these reserved areas, provided they do not hold themselves out as being a lawyer or as having any qualifications or expertise in law which they do not have (each of which is an offense under the Act).
So what are these "reserved areas of work":
- Giving legal advice in relation to the direction or management of any proceedings before a New Zealand court or tribunal;
- Appearing as an advocate before a New Zealand court or tribunal;
- Representing any other person before a New Zealand court or tribunal;
- Giving legal advice or carrying out any other action that is required by any enactment to be carried out by a lawyer.
Under the Act it is an offence for a person who is not a lawyer (or entitled to do so under an Act) to draft court documents for gain or reward.
Non-legal organisations such as accounting firms, banks, internet service providers, or even supermarkets could therefore offer their customers a range of legal services outside the reserved areas, such as advice on contracts, tax, and wills. This could raise consumer protection issues which are at this stage not covered by the act. Example of such issues could be professional privilege in relation to received advice. However, if we are to trust the Police in using their discretionary powers under the anti-smacking bill wisely, we can probably service providers in this area to be clear about what it means to be a non-legal organisation providing legal services to he public.
Some layers raise the issue of the lack of the protection of the Lawyers' Fidelity Fund, the NZLS complaints and disciplinary procedures or the other protections provided by the regulation of lawyers under the Act. Quite honestly that is an unconvincing argument to me, negligence can be covered by professional indemnity and liability insurance. The protection under the Fidelity Fund arrangement is relatively limited anyway.
Furthermore in respect of conveyancing practitioners there are indications that professional insurances will become compulsory.
Whilst consumers of legal services need to be aware of certain protection issues this should not be utilized to scare people away from using these services. What lawyers seem to "forget" is that having a practicing certificate is at no point a guarantee that your interests will be handled with due care. Just watch the news and look at the recent reports of lawyers involved in frauds with trust accounts, other fraudulent dealings and negligence. It is not like we are being bombarded with cases maybe but they are a regularly recurring part of the news coverage. And these are of course the ones that make the news only.
The Act is less clear on whether lawyers employed outside law firms - for instance in accounting firms, financial institutions, insurance companies or trustee companies - can provide legal services to their employers' clients or other members of the public.
A lawyer or incorporated law firm is guilty of misconduct when sharing with with any person other than another lawyer or incorporated law firm, the income from any business involving the provision of regulated services to the public. This rules out multi-disciplinary partnerships. In addition, a lawyer who is employed other than by a law firm or another lawyer is guilty of misconduct if he or she provides regulated services to the public.
This prohibition on lawyers employed by non-law firms offering legal services does not apply if the lawyer:
- Provides regulated services in an in-house capacity
- Is an employee as well as practicing on his or her own account
- Assists or enables the employer to provide to the public regulated services that are not
- within the "reserved areas of work"
- services that consist of the drafting of any document to be filed in proceedings brought before any court or tribunal
- conveyancing services
- services that a lawyer provides by undertaking the work of a real estate agent
Therefore, lawyers employed outside law firms can offer some legal services to their employers' clients as well as to their employers. However, to complicate things; a lawyer employed outside a law firm is not permitted to assist his or her employer to provide regulated services to a person with whom the lawyer has a "lawyer and client relationship".
This seems to mean that lawyers employed by non-law firms are able to provide legal services to their clients as long as they make advise these clients that they are not acting as their lawyer. As a result, legal professional privilege does not apply. Other fiduciary duties that are part of a lawyer and client relationship will need to arranged in a different way.
All in all, the Act seems to bring some considerable changes and opens up the market for all kinds of possibilities. This in my view is a great development. Markets need a healthy dose of competition and customers should ideally see the benefits of these changes in the form of better pricing and quality improvement.From two recent clippings in the Oamaru Mail it appears to transpire that there is still quite some resistance and ignorance going on in respect of this change.
The Oamaru Mail Reports
In the Oamaru Mail of 4 June 2007 I found the following article.
Some Banks not playing fair, Oamaru land-brokers say
By Mike Hansen
Oamaru land brokers Cullen Conveyancing claim some banks are not giving them a fair go because they threaten solicitors' monopoly over property conveyancing.
Conveyancing is a term used to describe the preparation of documents for the legal transfer of real estate by specialist non-lawyer conveyancers who operate in competition with lawyers.
Licensed land-broker Lester Dempster and conveyancer Ann Meredith-Cullen operate Cullen Conveyancing in Oamaru and have received complaints from customers saying Oamaru banks give our misleading information about the firm.
"(Bank staff)" are not asking 'Who is your legal representative?' or 'who is acting for you in this transaction' ore 'who is your conveyancer?"'
"The word conveyancer is never mentioned-only solicitor. In effect they are handing solicitors thousands and thousands of dollars for free. We are not handed a sausage" Mrs Cullen said.
"Banking staff are telling people they need to use a lawyer, that I don't have a practicing certificate, that we don't have a trust account and it goes on with the incorrect, misleading advise all given by people not authorised to give this legal advise"
"I don't need a practicing certificate; we operate under Lester Dempster who is the licensed land-broker. We do have a trust account and have done from the day we opened. We can draw up any property document, mortgage instrument et cetera.'
"We are licensed in Land Information New Zealand to perform all registration of documents. Yet the banking staff are telling people we can not do this or that."
However, Todd Whitcombe, a member of the New Zealand Law Society's Property Law Section Executive Committee, said using a conveyancing firm could be risky and banks and banks take this into account when advising clients."
"Cullen runs through a company so they've got limited liability. One issue raised about conveyancing was in Victoria (Australia)...they had a conveyancy firm that defrauded its customers of millions of dollars and went into liquidation," Mr Whitcombe said.
Another risk when using a conveyancer, is unlike lawyers, they are not officers of the court and could not represent you in court if something went wrong, Mr Whitcombe said.
With a lawyer, he said, you have the best representation available and will not be at a disadvantage to you vendor or purchaser if a complex issue or dispute were to arise.
But, Mrs Cullen and Mr Dempster said it's unlawful and unethical to restrict the customers choice.
"The customer does now have a choice, don't let banks or lawyers tell you otherwise.
"Licensed land-brokers are licensed by the Government and sanctioned by the Governor-General and are qualified to carry out conveyancing activities with lawyers.
"Your bank can not insist that you must use a lawyer", Mr Depmster said.
It wasn't just left at this article and the following response by Lester R. Dempster was identified.
Lawyers are WorriedWhat struck me about these clippings is the alleged provision of wrong and misleading information by banks and bank staff and the position and arguments brought forward by Stephen Whitcombe. Before we get into that another issue not mentioned in the article immediately jumped into my mind. Could "old boys' networks" be at work here?
Comments in your article about Oamaru Landbrokers (4/6/07) by Mr Todd Whitcombe of the New Zealand Law Society, and in a rush to protect his profession from competition, failed to mention that professional indemnity insurance was not compulsory for lawyers and that many lawyers have no coverage at all.
It was even more galling to use a conveyancing firm in Victoria Australia (which was unlicensed) as an example of theft of millions of dollars without highlighting the plight of his own profession with struck offs and bankruptcies, not to mention over $40 million in defalcations by legal practitioners which the consumer pays for in the end.
In Western Australia & South Australia, 95% of conveyancing is done by licensed non lawyer conveyancers. The other states show marked increases as well when licensed conveyancers have entered the market place. The public are voting with their feet.
The risk factor for the consumer is negligible because the conveyancer is specifically qualified in this area of law. New rules to be implemented by the New Zealand Society of Conveyancers will enhance consumer protection and professional indemnity will be compulsory. Even lawyers need to engage professional advice and instructions to a barrister in order to take the matter further.
Conveyancing is not an adversarial boxing match between a willing vendor & purchaser, as some lawyers like it to be. We prefer to settle it amicably between the parties without incurring further costs to our client.
A number of clients have complained to us about some banks and some real estate firms directing clients to go elsewhere based on misleading and incorrect information.
Remember the customer now has a legal choice in who may carry out the legal work on buying, selling or refinance of your property and the banks and real estate firms are not qualified to give legal advice in this area.
I urge the customer to think carefully and support competition and consider Cullen Conveyancing Ltd as an alternative to lawyers in your choice of conveyancing professional.
Yours faithfully
Lester R Dempster
Licensed Landbroker & Principal (Adv Dip in Conv)
Cullen Conveyancing Ltd.
Old Boys' Networks
I would like to start of with a quote from the National Business Review of 11 July 2004. In an editorial about the Saunders & Co v Hague case they report:
"... the Canterbury legal establishment is an old boys' club that looks after his own"Over the years in New Zealand, I have learned and been amazed about these so called old boys' networks. Let it be said that these are not limited to lawyers, those networks, whether it be lawyers, accountants, bankers, mixed networks going back to schools, (blue blood) families or otherwise are part of how things work and how they work for participants. Not always for the best and with the risk of cover ups (as could be seen in the NZ Police recently) or inequality of opportunities:
Women's participation in national leadership roles on producer boards was also raised. In general, respondents thought that low participation was a mixture of "old boys networks" operating, women not putting themselves forward, and the family focus of many women's lives.
http://www.maf.govt.nz/mafnet/rural-nz/people-and-their-issues/
social-research-and-welfare/social-research/socres05.htm
While the old boys’ networks of the past tended to be drawn from a narrow socio-economic group, these courses aim to draw in people from different backgrounds to discuss the challenges facing New Zealand, and develop informal networks that they can utilise later in their careers.
http://www.unlimited.co.nz/unlimited.nsf/default/
1803BDDED0A78C6ECC25702C007E0791
Public perception of the disciplinary bodies was that they were “old boys networks” or “closed shops”
http://www.csi.org.nz/proceedings/jones.pdf
In societies in which social trust is invested within ‘in-groups’ rather than society as a whole, unequal access to the ‘right kinds’ of social network may help to reinforce social dis/advantage.‘Closed’ social networks such as old boys networks may actively discriminate by basing hiring decisions on personal acquaintance or in-group membership rather than more objective indicators of job competence such as relevant skills or experience. ...
... There is an extensive literature that investigates active discrimination by social elites seeking to maintain the status quo (eg Giddens 1998).
www.msd.govt.nz/documents/events/strategic-social-policy/conference-04/33.doc
During one project I came to talk with a witness and we got to talk about his thesis. At one point he said: "New Zealand is still ruled by the families that came of the first four ships."
Or what to think of another client advising me on how he was about to start a fight with his solicitor. He was trying to pursue a negligence claim against his previous law firm. In the course of briefing and setting out a strategy his barrister advised him about his plans. The client tells him, "well what about the other issues I raised, hey are far greater importance". I can still remember the barrister looking out the window and saying "I can't do anything with that, I mean, I socialise with these people regularly."
The article, more importantly Meredith-Cullen and Dempster appear to indicate the workings of an old boys' network when they speak a banks giving money away to law firms while they are not even offered a sausage. Could it be that he establishment, the old boys network is talking care of its own here? Could it be that banker A who went to school with lawyer B made a deal to keep the new conveyancer C out of the equation to protect the interests of buddy B?
It can not be ruled out but such suggestion is quite grave. It would mean that banks are deliberately misinforming their clients when they say that clients "need" a solicitor.
And is it that, no one will ever know, we can only guess. But there could be more to it of course. It could be ignorance or professionally not being up to date.
Behind on the facts perhaps? Ignorance?
The Lawyers and Conveyancers Bill is not in force for very long. It can of course not be ruled out that staff members are not up to date with the latest developments. Whilst that would be a very poor excuse, it is a realistic option. And in that sense the press coverage should leave all banks with no excuse to from now on change their behavior. At least in Oamaru. It is one thing to be behind on relevant developments in your field, but if you are not of the continuous education type, at least take the time to read the newspaper.
It must be said though that next to banks, the consumer organisations do not seem to make mention of this bill (yet) on their websites. So whilst the banks appear uninformed or ignorant, consumer organisations do not seem to outline this subject either. So we have an important information gap here. Whilst we could blame banks for providing wrong information we should also look at consumer organisations not providing this important news and of course the conveyancing industry itself, for not promoting this new opportunity harder. I can only hope this blog helps.
So, the question now is, what will change in Oamaru? I hope to follow this closely.
Protecting your little kingdom
This brings me to the arguments brought forward buy Stephen Whitcombe. Of course being a lawyer himself, most likely practicing in this area he will want to protect his little kingdom and that of his peers. You can not blame a man for that. But if you do so come with good arguments, and that is where it seems to be lacking.
He basically brings forward the following arguments:
- using a conveyancer could be a risky and banks take that into account when advising clients
- Cullen runs a limited liability company
- Conveyancers are not officers of the court
- with a lawyer you have the best representation available and will not be at a disadvantage if a complex issue or dispute were to arise
Risky, Limited Liability
Whitcombe advises that using a conveyancing firm could be risky and that banks take that into account when advising their clients.
What Whitcombe fails to do is explaining why taking a conveyancer in the arm is risky. This statement goes completely unsupported by any arguments. In that sense listening to Whitcombe and believing him on his big blue/green/brown/grey eyes is probably just as risky (sorry I haven't had a chance to look into his eyes). That is of course, unless you relate it to his remarks about limited liability and the example of Australia.
The example he gives relates to, as claimed by Dempster, a non-licensed entity and for that matter in Australia. What is more, under the new regime of the bill, membership of the law society will be voluntary, so that means that you will have to ask your lawyer as well whether he or she is a member still, else the argument of protection offered by the fidelity fund is no longer applicable. I think it would have been fair to report this as well.
My question would be: will banks start asking for an indication that your solicitor is still a member of the New Zealand Law Society? Will they blacklist or tag non-members? My guess is not. There are more ways to protect a consumer as pointed out previously.
And what to think of the fact that law firms are offered a similar possibility of registering and practicing as a ltd. First of all the article or Whitcombe does not explain or advise that a similar option will exist for law firms though within certain boundaries (see above). I am curious to see what the future will bring in that respect. This will raise some new questions, and one thing I hope explore on this blog: the difference between fiduciary duties as a lawyer and the duties as a company director and what this will mean in terms of liabilities.
Officers of the Court & Best Representation Available
Quite honestly these arguments by Whitcome are the least convincing.
I can understand that some property deals go sour and end up in a dispute or litigation. But what the article and Whitcombe do not report is how high that risk or chance is. And is the chance of a conflict higher when you use a conveyancer?
For that mater I would like to ask a question to Mr Whitcombe: what does it tell you about your own peers if you bring such an argument forward as to why it is important that your conveyancer is also an officer of the court?
It could be explained as lawyers being worse negotiators, perhaps deliberately even because they have an added interest in litigation (read lawyers fees) on their mind sooner. There is a good argument to say that in that sense conveyancers are in a better off position because they have an incentive to settle things out of court (read cheaper, less traumatic and time and energy absorbing).
Than the "best representation" argument to close my thoughts on the article off. Why would anyone perceive it as a disadvantage to have a conveyancer instead of a lawyer when a complex issue or dispute were to arise? Should that eventuate, neither the law nor common practice rules out that you instruct a lawyer when there is a need.
So again, and as a consumer you can consider how likely it is that you will end up with complex issues or disputes? And the next step: how likely is it that these disputes will end up in court? And in between that, why would a lawyer be better equipped than a licensed conveyancer to deal with complex issues? I understand the sentiment, but honestly, isn't that just what it is? These arguments make sense if there is a barrier in instructing a lawyer and where required (in matters of litigation) if there was an impossibility of instructing a lawyer when the need arises. I have not identified such a barrier.
Stats would be welcome here as part of educating the public, something the Government of New Zealand is so fond of. This is also an appeal to consumer organisations to start informing the public and of course the conveyance practitioners to inform the consumer organisations, the public and referrers such as banks.
What I Missed
What was missing in these articles? Can you tell?
I can't help feeling that Cullen was caught in the trap of battle. What she did not mention, nor her colleague Dempster, is what the adavantage would be for any given customer to use a conveyancer instead of a lawyer?
And that is what I mean with a trap of battle. Sun Tzu said long lonmg ago ( well before Christ) that the ultimate achievement is winning without fighting. Mrs Cullen got into a battle and seems so distracted by it that she forgot about her own strength. She is one of the few licensed conveyancers in New Zealand. What is the advantage of utilsing a professional and licensed land-broker?
So Mrs Cullen I look forward to your reply (as well as Whitcome's one or any other lawyer that has distinct ideas on the subject matter.)
Finally
Cullen stood up and went into battle, but forgot to identify what the added value of a conveyancer is compared to a layer.
Banks in Oamaru appear to ill advise their clients because they are either ill informed or taking care of the old boys network. Time will tell. Whitcombe's arguments run short as well and are virtually undocumented.
Can I please invite you both to respond, if only for the sake of public interest.
As far as banks go I'd look forward to an explanation or viewpoint since banks seem to be in the center of all this, at least in Oamaru.
And finally customers, from Oamaru and in general I'd like to know if the experiences described sound familiar or not. Please share your experiences.
From my side I hoped to have bridged a gap and made the public (my New Zealand readers) aware that they have a choice.
Instead of leaving a comment, you can leave me an email at johndierckx.chchnz@gmail.com
I look forward to all responses, they all contribute to educating the public.
Thoughts on Government Interference
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Tuesday, 24 April 07 - 09:46 PM (GMT) By John ML Dierckx in Legal |
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In New Zealand there is a considerable amount of debate going on in respect of a law against smacking, and how this affects parents in the use of reasonable and unreasonable force when it comes to disciplining their children.
This is not just a discussion about whether or not you should be able to smack your children, but to what extend a government should be able to interfere with private
relations, in this case even by using criminal law!
Traditionally, laws relating to human rights were codified to ensure that the boundaries were clearly outlined where it comes to governmental/monarch influence in our daily lives. E.g. human rights not just as a recognition of those rights but also as a recognition that the government/ruler/monarch's powers were not limitless. The strive to codify law in the times of Montesquieu and Beccaria, were not just a recognition that as humansd we have rights, that we needed to regulate certain aspects of our society but also as a protection against absolutist rulers that were corrupted.
The privacy of the family and raising your children is typically one where governments should be very careful with interference. It is typically an area where governments should stay out unless it is for the protection of the child's safety. Is this not a very instrumentalistic approach to a problem that should not be part of criminal law?
From what can be understood child abuse and molestation figures and incidents are up to a level where real concerns are justified. It seems clear that something needed to be done. But does this law address this issue or does it just create a non-vehicle and more importantly incriminate a lot of good willing parents to enter the system of criminal law?
Quite honestly I am not convinced by remarks such as a rugby player committing an offense when he does a tackle and not being arrested. Regardless of your opinion on raising children, where does government interference in our daily lives end? What is next? Making it a criminal offence to eat fish and chips for more than 3 times a week, because we have an obesity problem?
Sometimes I get this Wizard of Oz feeling, I come out in the morning to find that there is a ban on blue clothing and red is the new color. (And I am not talking about wearing gang clothing here please don't get me started) Why? Because Helen and her bunch told us that it was best for us. Get real!
We have a serious trade deficit, an expected burst in the property bubble, we are heading towards a new form of "apartheid" , we are faced with growing concerns of (organised) crime, on a wintery day we can not cope with the snow and economy goes flat because of power outages, and what do we do? We focus on traffic and getting the road toll down and now getting a criminally sanctioned ban on parental disciplinary action.
Victims of fraud get non-responsive police reactions, sorry too hard or sorry no resources. Courts are overloaded, more prisons are required without someone asking what problem are we actually actually trying to solve, one after the other politician is being exposed for alleged corruptive practices.
Is someone in the Beehive missing the bigger picture or is someone there keeping us occupied with non-problems to make sure we don't think about the real ones?
Don't get me wrong here, I like NZ a lot and I think it is one of the most beautiful countries in the world. What I dislike though is the way the MindPolice in Welly. Am I the only one wondering whether we are actually being manipulated?
Criminal law is a very serious matter and should not be used lightly, there are so many options available to deal with this issue of parental discipline if the need for that is as pressing as we are supposed to believe. By the way where are these statistics, and how reliable are they. Just as reliable as the corruption stats?
GET REAL: Thoughts On Utilising Criminal Law
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Thursday, 01 February 07 - 01:19 PM (GMT) By John ML Dierckx in Legal |
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Is it time computer owners became accountable for their systems?
Recently I stumbled upon this remark/question on LinkedIn and thought I'd share both the question and my answer with you.THE QUESTION
It is commonly acknowledged that much of the spam, virus and worm traffic that is degrading the Internet, clogging mailboxes and interfering with legitimate communications is propagated by infected home computers. The criminals behind the activity use these networks of "zombie" computers as a shield for their activities. Law enforcers and internet service providers therefore find it difficult to curtail the criminal activity.
If you allowed your house to be used for criminal activity you could expect to be held to account. The same would be true if you lent your car keys to a drunk driver or a gun to a bank robber. If your autodialling fax machine is a public nuisance then telecoms operators may disconnect you.
Is it not therefore perhaps time to pursue sanctions against people who allow a computer they own to become an instrument of crime too?
Should ISPs disconnect customers whose machines are clearly infected? Should the unique MAC address of those computers be blacklisted by other providers? Should Police have powers to confiscate computers when owners fail to operate basic firewall and antivirus software?
In short, is it time to get hard on socially irresponsible computer owners who allow a powerful communications device to be used for criminal activity in their homes?
MY ANSWER
I have been reading this thread with interest and can but say that it seems that emotions are taking the overhand a little bit. The one question that appears to be missing here is: why would you resort to criminal law where other options are available?
I would hate to think that my mother of seventy, proud of her recent internet connection so she can communicate with her son on the other end of the world could be held criminally liable for not having her security up to scratch. Finally a broadband connection to download those pictures and knock knock: "Police open up you are under arrest". Get real all of us!
I would be the last to deny that spam and other illegal activities are becoming more and more of a nuisance. I experience it on a daily basis, but I do not think that any criminal law will ever change that situation. In fact, all it can do is criminalise those with less understanding and yes those that could be classified as careless, without actually changing anything but further overarch the criminal judicial systems throughout the world. Isn't it true that regardless of firewalls and anti virus programs there are and will be loopholes that can be utilised?
More importantly, a substantial number of those zombies are victims just as much as the receipients of malicious code and spam messages through these zombie computers.
I see so many options mentioned already, but no one seems to be to worried about perhaps considering better education to at least help those with with good intentions but little understanding. To make it more friendly to those that are now clapping their hands in joy just because they managed to actually send an email.
Security is becoming more and more of an issue no one denies that. But perhaps if we all took on some responsibilty ourselves and help out those that are not as computer savvy to ensure that they are protected in an orderly fashion than perhaps we would not need those laws at all. You live in a neighbourhood, take yourself away from that incredibly busy schedule inherent to your incredibly successful career and organise a neighbourhood support internet security meeting, open an advise line where people can be helped to better secure themselves.
I have seen many of these people we are trying to bombard as negligent and careless criminals being completely helpless when they don't understand why everything is going so slowly because they have been infected all over the place.Help them out, it takes away a substantial number of potential "zombies", you give something back to your community and ultimately it contributes to managing (yes not solving) the problem. There's eight million people on linkedin, they could all help out 3 unsavvy users of the internet and we would have within a week realised that 24 million people would no longer be a victim in that they are used as a Zombie.
If we all keep this up for another 12 months 3 people per month we are looking at 288 million people. So perhaps we could all drag ourselves away from our busy schedules and sucessful careers for say 1 day a month and hello!! we could be helping 228 million people going on the net safe and secure. Man would that help us save a lot of tax dollars to be paid to feed those in jail for being ill-protected.
And those that should know better and just don't care, that's the group to focus on. But even there, are they criminals or just a nuisance that could be dealth wit ust as effectively through civil law. I could just imagine the next thread here. Who will pay the lawyers?
All of us networkers are so concerned about the importance of giving. Give, support and education to those that need it. With the potential of 8 million linkedin users helping another 228 million people that were unsavvy but helped by the computer literate LinkedIn community your spam filters will have a party in no time. If you are here to get perhaps GET INVOLVED. Are you here for the take? TAKE RESPONSIBILITY.
fOR THOSE WHO'D LIKE TO READ THE WHOLE TREAD GO HERE
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