New Zealand Law Society - In the presence of change

In the presence of change

By Don Thomas

Much has been said about how things will change, how much will have changed, when we come out the other side of the COVID-19 pandemic and resulting restrictions.

Remote Working

The obvious change will be a more widespread acceptance of working remotely.

This discussion has been developing for some time. Some commercial businesses and some legal practitioners and staff have already embraced it. As a sole practitioner and early adopter of technology I was able to manage my previous sole practice by working remotely while indulging my love of travel.

In our present practice three of our directors and one legal executive were set up for this when Level 4 was announced. We already operate in a paperless office and had the basic Virtual Private Network (VPN) and Remote Desktop Connection (RDC) programs set up. It was therefore a “simple” matter to relocate everyone to their homes in the two days we were given.

We are already getting feedback that some of our staff will want to continue to work remotely, at least part-time, even when things get back to normal. This is the same feedback we are reading and hearing about from other firms and clients both here and overseas.

That it works and the detail of how it works has been proven in the real world so there can be no going back.

Remote signing

Unfortunately the same will not happen with remote signing of documents. The ability to complete document signing via audio-visual (AV) meetings has been made law through regulation. The sad part about that is the inclusion in the regulations of the closing provision: “Revocation. This order is revoked when the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked.”

The question I have for the profession is “why is that necessary?"

“In the presence of”, “witnessed (by)”, and similar expressions have in the past carried with them the implied requirement of physical presence.

In the world we now live in, common accepted usage had moved on from that point even before lockdown. Our everyday life, be it family, social or business, accepts AV meetings as being “in the presence” of the other participants.

LINZ has been at the forefront of technology adoption with Landonline. They have also led the way again by approving remote signing of A&I by AV means. Why has the rest of the profession been so reluctant to follow that lead until forced to by the current crisis? And why would you want to go back when we are clear of the crisis?

Let’s make it permanent

The law would eventually evolve to adopt such modern terminology and practice. It would however be a brave practitioner who put their client at risk by making them a test case. So let’s push to legislate to make permanent the temporary regulations now in force.

The initial guidelines issued by the Law Society suggest an extensive certificate spelling out the steps taken. That is not required in the regulations. It is unnecessary so let’s leave that out of the new regime.

Presently our signature as lawyers as a witness certifies the signatory’s actions. We are accepted/trusted as appropriate for that task due to our independence and professional training. Our function is to meet with the signatory, verify their identity and their understanding of the document, ensure they are free of any undue influence, get them to acknowledge this by signing the document, and then complete the witnessing.

Modern technology means we can just as effectively carry out these functions without the requirement to be physically present. Being physically present did not mean we, and a number of other practitioners and banks, were able to detect fraudulent passports in a mortgage fraud some years ago. It has not prevented all of us and our clients from being involved in cases of alleged undue influence at some time.

The LINZ e-dealing guidelines and the latest regulations spell out what we do already in the physical world, translated to apply in the AV world. To those, I would add my own practice as having the document(s), if not prepared by me, and ID scanned and emailed to me in advance. That gives me time to consider the document and its effect, provides me with a benchmark to check against with the document(s) being signed and ID presented, and to then match to the signed document(s) when I receive them.

Having satisfied ourselves and completed the witnessing, is it necessary to write a book about why and how we did that? Presently the addition of our signature and other descriptor is taken as our statement things have been done properly. As required in the enabling regulations, the addition of “in my audiovisual presence” or similar is all that is necessary, if anything? Does a lengthy certificate add anything to the implicit statement we are already making by signing as a witness? Is anyone going to bother going through/reading such a certificate?

Digital signing

The present changes/dispensations work on the basis that we are using hardcopy documents with manuscript or ink (“wet”) signatures. The logical next step if we are progressing adoption of current technology is electronic signing. In some situations presently that may be simply a typed name or other indication that complies with the Contract and Commercial Law Act 2017 (sections 226-228).

The required level of security for an electronic signature in this context would be for a digital signature. In this form the signature is unique to the person signing, it can only be used by them, the document it is attached to cannot be altered without invalidating the signature, and there is a record/log of the date of signing. This is more secure than a wet signed hardcopy document that many cases have shown can be altered or the signature(s) forged. So why is it this form of signing is seen as some lesser/imperfect action?

Such digital signature capability is now readily available and proven. It can be part of the functions on a site such as the ADLS WebForms. Or it can be our own digital signature set up with a Certifying Authority (CA) such as Secured Signing in New Zealand or Digi-Sign overseas. The capability is there and we should be making the most of it.

The way forward!

Why is this relevant once we are able to again do face-to-face with our clients and others? It is a matter of business efficiencies for ourselves and convenience for our clients.

In my other occupation as a Notary Public we have an issue with a lack of geographical coverage for our services. So I have been pushing to enable us to provide our services through AV.

In our everyday professional life there is a time and convenience cost to have face-to-face meetings. A cost to both ourselves and our clients. If we have the ability to make the process more efficient we must adopt it. Remote signing by itself, or the combination of remote signing using a digital signature for the signatory and witness(es), offers at once convenience and security.

Presently we can complete a LINZ A&I signing and witnessing remotely. So even for this most basic task there is no need for parties to take a substantial chunk of time out from their day to attend a face-to-face meeting. Completed instead in a short time during their tea-break or lunch or without having to arrange time off or a babysitter.

The ADLS LawForms programme and Secured Signings website enables digital signing and witnessing of documents. Even more value then when we can complete an Assignment of Lease with the Assignor(s), Assignee(s) and Landlord(s) and their respective witnesses all in separate places all signing in one session or sequence. Done and dusted in a day!

Enduring Powers of Attorney require multiple parties and witnesses, usually spread all over. How much more convenient for all if they can sign and be witnessed from where ever they might be at a (brief) time convenient to them.

Why are we hesitating in mandating for this in all our work?

Don Thomas is a Director of Auckland firm Thomas & Co (incorporating Titirangi Law Centre).

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