find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Legal Counsel
Category: Corporate and Commercial Law | Location: North Sydney NSW 2060
· 18 month fixed term contract · 3-5 years PQE with TMT exposure
View details
E-signatures spell trouble for lawyers

E-signatures spell trouble for lawyers

Stuart.ONeil

It is tempting to speed up transactions by eliminating the physical signing of documents, but one firm has warned lawyers to exercise caution around e-signature technology.

Creevey Russell Lawyers principal Stuart O’Neill (pictured) said e-signatures facilities such as DocuSign and Adobe are “being pushed” onto the market.

“[This is being felt] especially in sales industries like real estate, where there is a desire to speed up and deformalise the signing process,” he said.

“But lawyers should always be careful not to take shortcuts on fulfilling their duties in order to save on costs for a client.”

Mr O’Neill said the problem with e-signatures is that lawyers run the risk of their client signing documents too quickly and without due thought and consideration of all the legal issues.

“For this reason alone, in many cases lawyers will be naturally hesitant to recommend an e-signing arrangement for their clients,” he said.

In the worst case scenario, a lawyer could be prosecuted for negligence if a document is not validly signed.

“[For example,] if a deed is e-signed by an individual without a proper witness, it will not comply with section 45 of the Property Law Act,” he said.

Mr O’Neill said lawyers must take care with e-signatures because parties to documents must consent to e-signing and the document itself must explicitly say it can be e-signed.

Documents that require a witness should never be e-signed, he said. This generally excludes deeds, wills, estate planning authorities and contracts. Government, stock exchange or other registry documents also cannot be e-signed.

“Currently these rules generally, at best, only permit physically signed documents to be scanned and uploaded, but that is all.”

The validity of e-signatures in many legal contexts has not been tested in court, according to Mr O’Neill.

“The only real case in this area that has been reported is GetUp Ltd v Electoral Commissioner [2010] FCA 869,” he said.

In this case, an electronic document was signed on the trackpad of a laptop.

“This action was physically witnessed by persons who were present and who then signed as witnesses the same way,” said Mr O’Neill.

However, this case is “quite different” to the online facilities being offered by DocuSign and Adobe, he said.

This software allows witnesses to apply e-signatures in separate locations using mouse clicks.

“Perhaps future case law will address this if and when an e-signature is challenged. The Electronic Transactions Legislation does not deal with witnessing per se.

“To my mind, a witness must be an actual person who witnesses the act of signing and who can subsequently provide testimony in a court about that.”

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

 

E-signatures spell trouble for lawyers
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
LCA president Fiona McLeod SC
Aug 17 2017
Where social fault lines meet the justice gap in Aus
After just returning from a tour of the Northern Territory, LCA president Fiona McLeod SC speaks wit...
Marriage equality flag
Aug 17 2017
ALHR backs High Court challenge to marriage equality postal vote
Australian Lawyers for Human Rights (ALHR) has voiced its support for a constitutional challenge to ...
Give advice
Aug 17 2017
A-G issues advice on judiciary’s public presence
Commonwealth Attorney-General George Brandis QC has offered his advice on the public presence of jud...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...