08/20/10 by ianh | CLANZ news, Uncategorized | No Comments »
An issue that CLANZ has been asked to consider is where lawyers practise on their own account with more than one organisation as an in-house lawyer. This can occur where in-house lawyers have negotiated separate contracts with each organisation, and may include where the main organisation they work for wants them to work for an allied organisation (for example a joint venture or one or more subsidiary entities that are not companies in the same group – see Rule 15.2.4 of the Lawyers: Conduct and Client Care Rules 2008 “the Rules”). Read more →
08/20/10 by ianh | CLANZ news | No Comments »
This month we have something a little different, an ex in-house counsel who has become an entrepreneur, Jo Freeman – the MD of Urban Harvest. Read more →
02/08/10 by ianh | Legal news, Litigation (news) | No Comments »
“Discourage litigation. Persuade your neighbours to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
Abraham Lincoln is credited with these wise words. But despite best endeavours litigation will still occur from time to time.
Forensic accountants are often called in to quantify the financial loss suffered to support commercial litigation. Unfortunately the call often occurs late in the litigation process, sometimes just days before briefs have to be filed and often after a considerable amount of effort and cost has already been invested in pursuing or defending the matter.
Quantifying the financial loss early in the litigation process means the legal strategy and costs can be better aligned to the potential commercial prize or pain at stake. Identifying the financial loss suffered is really $500,000 rather than $5,000,000 (or vice versa) at the start of the litigation process creates an opportunity for both the plaintiff and defendant to adjust their legal strategy before litigation costs escalate.
Five key factors to consider when you appoint an expert
Experience: being an expert on the matter at hand is more important than “being an expert at being an expert”;
Qualifications: academic or professional qualifications may not necessarily be as relevant as expertise and experience, particularly in valuation, assessment of loss, solvency and securities law related matters;
Impartiality: the expert will only be useful if they are considered truly impartial in assessing the matter. Some times this means the assessment of financial loss will be higher or lower than you may have anticipated. It is better to have a robust and objective view early in the litigation process;
Timing: whilst the expert can generally provide greater value if appointed early, having an expert available, briefed, ready to go and able to “drop everything” to help meet the pressure points in a civil litigation process is priceless. Having an early and ongoing assessment of the valuation or financial loss suffered can have a significant bearing on litigation strategy;
Briefing: the initial briefing is critical. Perhaps the expert’s greatest fear is not being provided with a comprehensive briefing, potentially undermining the assumptions and ultimate conclusion reached.
Please contact Barry Jordan or Jason Weir to find out more about quantifying financial loss or Deloitte’s wider panel of Court experienced experts.
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| Barry JordanPartner
Wellington
DDI: +64 4 470 3760
Email: bjordan@deloitte.co.nz |
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| Jason WeirAssociate Director
Auckland
DDI: +64 9 303 0966
Email: jasweir@deloitte.co.nz |
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12/17/09 by ianh | Legal news, Legal tech | No Comments »
An employee is leaving and you’ve heard he is going to work for the competition. How damaging would it be if he took confidential information including customer lists, strategy documents, financial information or designs with him?
A recent study by the Ponemon Institute found that almost 60% of exiting staff admitted to stealing confidential information. Anecdotally, we find that theft of confidential information is a large, but much under-reported problem in New Zealand businesses. Most confidential information is stolen by copying data onto USB thumbdrives (or other USB devices including iPods, digital cameras, removable hard drives), sent to personal email addresses or copied on to DVD/CD.
In-house lawyers typically become involved once the theft of confidential information has been identified. However given the risk, particularly in the current economic climate where workforces are being reduced, there is an opportunity for in-house counsel to add value by raising this threat as a discussion point before it occurs.
It is impossible to entirely prevent the theft of confidential information from occurring, but your organisation is able to reduce the risk of it occurring and be well placed to respond if it does occur. Typically the solution requires input from legal, IT and human resource functions.
How can you ensure that you can adequately respond if you suspect confidential information has been stolen?
- Given most confidential information is stored and stolen electronically, a forensic examination of the suspect’s computer is required. It is critical that electronic evidence is carefully handled. Electronic evidence is volatile and is easily damaged or destroyed, simply by turning on a suspect’s computer and reviewing its files. If you want to later rely on electronic evidence in legal proceedings, it is important the computer is handled in a forensically sound manner from the start. You should contact your computer forensic partner at the earliest opportunity;
- Ensure IT has “logging” switched on. Logging simply keeps a record of who has printed, copied and deleted files. Most IT departments switch logging off because they see little value in it, however it is a potentially rich source of evidence that confidential information has been stolen; and
- Ensure that employment contracts, internal policies and practices enable adequate penalties, including termination of employment, to be applied.
How can your organisation reduce the risk of confidential information being stolen in the first place?
- Employ suitable data-loss technologies recognising the scale of your organisation and the sensitivity of the information contained. There are a vast array of approaches and technologies available to preventing confidential information being stolen, from simply physically disabling USB ports to sophisticated tools that put electronic identifiers into your documents (akin to the writing your name on valuables using an ultra-light pen);
- Ensure that access to the computer system is sufficiently limited (e.g. make sure HR staff can’t access electronic files used by finance);
- Ensure that access to the computer system is disabled on departure from the company. This includes ensuring that all laptops and PDAs including Blackberrys are returned immediately and that the employee’s remote access to the system is switched off;
- Create an anti-fraud/anti-theft of confidential information culture by making it clear in policies and communication that this activity is not tolerated, investigating suspicions as they arise and taking strong action when fraud/theft of confidential information is identified; and
- Scanning computers of high-risk staff (e.g. those leaving to join competitors) to determine if confidential information has been stolen – see the sidebar.
Please contact Barry Foster or Jason Weir to find out more about the theft of confidential information.
Deloitte’s Greenlight Check, provides a cost-effective scan of employee’s computers to determine if confidential information has been stolen. The computer is copied in a forensically sound manner, so evidence found can be used for legal proceedings. Then the computer is examined to determine if confidential information has been stolen.
12/17/09 by ianh | In-house practice | No Comments »
The introduction of the Sarbanes-Oxley Act in 2002 by the U.S. government, against the backdrop of the financial scandals that rocked companies like Enron, WorldCom and Adelphia, reverberated throughout the worldwide legal community.
Questions were raised then about the duty of confidentiality to the client and blowing the whistle on improper corporate conduct, and perhaps most importantly, about the independence of counsel, particularly in-house counsel.
click here to read an article from the Law Society of Upper Canada on how their Rules of Professional Conduct guide their in-house legal practice in light of the governance issues now facing in-house counsel.
11/19/09 by ianh | Uncategorized | No Comments »
1. What does your current role involve on a day to day level? 
As General Counsel of the ANZ National Bank, I am the Bank’s Chief Legal Officer, responsible for the provision of all legal advice to the Bank and its subsidiaries (which include both the ANZ and National Bank, UDC, EFTPOS, Direct Broking Limited, and Bonus Bonds) on both an in sourced and an outsourced basis. Our internal legal team has 30 lawyers divided into 5 key teams dedicated to Retail, Rural and Business Banking; Litigation, Risk and Dispute Resolution; Institutional – Markets and Transaction Banking; Institutional – Relationships and Commercial Banking; and the Corporate Team. In addition to the internal legal team, I run a large external panel of law firms to supplement our internal team, particularly in areas of volume (such as litigation, debt recovery, M&A work, branch network issues) and technical expertise (such as tax, complex transactional work, securitisation and major off-shore debt issues). I am also the Company Secretary to the ANZ National Board and the Bank’s subsidiary boards, responsible for the good governance and the smooth running of all of those boards, assisted by a small and extremely able Company Secretariat team which sits within the Corporate team.
2. What is your background/career history?
I started my legal career working at Chapman Tripp in the litigation team. The bulk of my work was on the large Telecom/Clear antitrust litigation that ran throughout the 1990s. At that stage, the NZ telecommunications market was one of the most deregulated markets in the world, relying primarily on the courts to resolve issues such as interconnection and the provision of unbundled wholesale services by Telecom to its competitors. I also worked on employment litigation, which allowed me to build file management, court, and ADR (particularly mediation) experience at both Chapman Tripp and at DLA Phillips Fox (as it now is). During my time at DLA Phillips Fox, the Telecommunications Act 2001 was introduced, ushering “light handed” regulation into the New Zealand telecommunications market, and I was offered a role working in-house at Telecom as its first dedicated regulatory lawyer. Over the 7 years I was at Telecom, the regulatory issues grew quickly to dominate Telecom’s corporate agenda, culminating in operational separation in 2007, by which stage I was General Counsel, Group Competition, Litigation and Regulation. I hugely enjoyed my time at Telecom which was a roller-coaster of regulatory, political, and legal change in addition to the strongly competitive market and fast technical change.
3. What motivates you and interests you in your work?
I have been extremely fortunate to move into my current role at a time when the banking industry is moving through a significant and historic period of change. The current economic crisis is unusual in many respects but in particular, because it was global and because it has its genesis in the financial sector, rather than moving to the financial sector subsequent to boom/ bust cycles in other sectors. This means that the industry is under intense political, legal, commercial, and regulatory scrutiny, both in NZ and internationally. The inevitable reforms of the industry will have hugely significant impacts on banking in the future and being part of that process and making a contribution to it is important to me. I have also inherited a very able and highly qualified team and having the privilege of leading that team is one of the highlights of my role. When I started, I set a goal for building one of the best corporate teams in the country. We have a number of projects underway to achieve that and my leadership team is committed to achieving that goal. In addition to this, the four Australian commercial banks are in fact the guardians of NZ’s current account deficit, meaning that the stability and success of those banks is inextricably linked with the success of our economy as a whole, an economy which remains vulnerable particularly because of its distance and size. The Australian owned NZ banks have come through the economic crisis very strongly, supported by their parent banks and the fact that the impact of the recession on the Australian economy was relatively muted. Ensuring the strength and endurance of the industry through this period of change and reform is a key motivator for me in my role. I also enjoy the corporate governance aspect of the Board work and the enormous variety, pace, and challenge of my work and the work of my team.
4. What are the biggest challenges facing your team?
In common with the majority of corporate legal teams, we are doing more with less. Less external spend, less internal resource. More “special issue” work, driven by the level of change in the external environment such as last year’s stagnation in overseas credit and the need to move capital raising to NZ/Australian markets, large volumes of law reform work (such as the suite of change to financial advisory regulation, anti-money laundering and Securities Act reform), increasing volumes of minor litigation, driven by the straitened circumstances many people find themselves in. We deal with this by a continual focus on prioritisation and on alignment of our work with the things that matter the most to the Bank in terms of its commercial objectives and strategy and how we can most add value to that, as well as maintaining vigilance around addressing key risks. Banks have also suffered a great deal of negative publicity, much of which is undeserved, making it difficult to maintain morale at times.
5. If you hadn’t been a lawyer what would you have done?
Two options, completely unrelated. I think I would have enjoyed investigative journalism. I love writing, I love stories, I love human endeavour and public life. I enjoy journalism that promotes a level of intelligent and passionate public discourse and believe strongly in its role as the fourth estate, a role that I think is being eroded at quite a high risk to the way we live and publicly engage. Quite separately, I would also have loved to work in fashion, particularly in designing and managing people’s wardrobes, something I have done for friends. I think New Zealanders care far too little about what they wear and the way they project themselves. One of the things I love about Paris is the way that people have overcoats, boots, scarves etc as a street outfit as opposed to a long All Black parka and sneakers as is commonly worn in NZ. While I think the Wellington street look is worlds ahead of Auckland, it still suffers from too much black, too much government, too much making sure you aren’t “wrong” in what you are wearing. NZers also still save all their decent clothes for “best” and spend most of their non-work time in clothes that also double as great outfits for cleaning the garage. I hate track pants/ sneakers and dressing for comfort and the lack of dressing for occasion, celebration, personality, communication, and fun.
09/12/09 by ianh | CLANZ news | No Comments »
Legal professional privilege has again proven itself as a hot topic among CLANZ members with a large turnout of members for the CLANZ-Bell Gully privilege workshops this month.
Read more →
09/12/09 by ianh | CLANZ news | No Comments »
Designed to help companies and government agencies get the best value from their legal function, the Report received an APEX 2009 Award of Excellence in the United States. The Report earlier won a Gold medal in the 2009 New Zealand annual “Pride In Print” Awards.
“These awards are great recognition for legal leaders who had the vision to support a detailed research report on the use of lawyers, bringing this sort of international resource to New Zealand and Australia”, said CLANZ Executive Officer Helen Mackay.
“Especially in difficult economic
times, good benchmarking can often repay the investment many times over with strategies to save money and management time.”
An article published in the United States by the Report’s author,
Team Factors’ Ron Pol, also won an Apex Award. “
Ready, Fire, Aim” addresses difficulties in implementing good legal department strategies. The article appeared as one of a regular column in ACC Docket, the magazine of the
Association of Corporate Counsel, the world’s largest community of in-house counsel, with more than 24,000 members in over 80 countries.
09/01/09 by ianh | In-house practice | No Comments »
Prime Ministers Kevin Rudd and John Key held their fourth bilateral meeting in Canberra on 20 August 2009 during Prime Minister Key’s official visit to Australia.
The Prime Ministers agreed on the imperative for continued strong and coordinated international action to restore confidence and global economic growth. They recognised that strengthened trans-Tasman economic integration, including through the Single Economic Market work program, would be vital for both countries. They recognised it would enhance the ability of Australia and New Zealand to weather the current global recession, increase national productivity, maintain and drive job creation, foster international competitiveness and improve the environment for doing business on both sides of the Tasman.
For the full text of the Joint Statement “click here”:http://www.med.govt.nz/upload/69862/statement.pdf
For a list of action points from the meeting and timeframes for actions ”click here”: http://www.med.govt.nz/upload/69857/outcomes.pdf
