The Law Society recognizes that our members will be faced with challenges in assisting their clients during this time of social distancing and other considerations to reduce the spread of the COVID-19 virus. The Law Society understands that members may face challenges in meeting their obligations, particularly as they relate to matters that have historically been achieved through face-to-face contact.
In order to minimize direct contact, the Law Society recommends the following:
Use technology, such as video conferencing to the extent possible, where appropriate. For example, consider whether it is necessary to meet with the client in person for client interviews, etc. It may be reasonable to limit direct contact with clients up to the point where documents must be executed, or personal attendance is necessary.
To assist you in navigating a shift towards a remote practice, a video, which qualifies for 0.5 CPD Hour, is available online that helps illustrate some options for remote work.
For technological inquiries or assistance contact email@example.com.
- When using video conferencing for the provision of legal advice or services, the following factors should be considered to help manage some of the risk:
- Confirm the client's consent to proceed in this manner.
- Ask that all individuals in the remote location introduce themselves.
- Ensure that there is no one else at the remote location who may be improperly influencing the client.
- Make sure that audio and video feeds are stable and that you can hear and see all parties.
- Where identification is produced to support verification of identity, ensure that a copy of the document is sent to you in advance of the online meeting and that when it is produced that the entire document is visible and legible.
- Determine how to provide the client with copies of the document executed remotely.
- Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference.
- Maintain detailed records including date, start and end time, method of communication, identity of all present and minutes of content of the meeting.
For additional guidance please refer to the Video Conferencing Checklist.
Consider whether matters need to be addressed on an urgent basis or can be delayed to a time of less heightened concern.
In circumstances where in-person attendance is required (i.e. execution of certain documents), ensure that you satisfy yourself that you can maintain your own personal safety and the safety of others. Follow all public health practices, public health orders, and implement the Environmental Cleaning and Disinfection recommendations in the workplace to limit exposure to and the spread of the virus.
Some considerations regarding documents that must be signed in your presence:
- Courts have not accepted signatures via electronic means (i.e. Facetime or Skype). However, in the Court of Queen’s Bench For Saskatchewan Directive issued March 19, 2020, the Court directed that for “urgent matters”, as outlined in the Directive, the Court makes the following allowance:
- In the event that it is not possible to provide an emailed sworn affidavit, unsworn document may be filed provided the affiant is available by telephone or electronic communication to swear or affirm the document.
- The Law Society of Saskatchewan has been working closely with the Government of Saskatchewan respond to the emergency situation. On March 26, 2020, the Government of Saskatchewan enacted the following emergency regulations:
- The Land Titles (Public Emergencies) Amendment Regulations, 2020 (impacting The Land Titles Regulations, 2001);
- The Electronic Information and Documents (Public Emergencies) Regulations (impacting The Electronic Information and Documents Act, 2000);
- The Powers of Attorney (Public Emergencies) Regulations (impacting The Powers of Attorney Act, 2002);
- The Law Society of Saskatchewan issued an Emergency Practice Directive to enable lawyers, during public emergency periods (like the one currently in effect in Saskatchewan), to execute and witness certain documents covered by these pieces of legislation via electronic means, i.e. a video conference on platforms like Skype or Facetime. The intention is to ensure that lawyers remain able to transact business with their clients while maintaining social distancing and without placing lawyers, their staff or their clients at risk.
- The practice directive sets out the expectations for how lawyers are to safeguard their clients, the ultimate users of the documents and themselves while executing documents remotely. Specifically, lawyers are required to manage heightened risks associated with fraud, identity theft, undue influence, duress and potential lack of capacity. As part of the practice directive, lawyers are required to complete a Declaration in Law Society of Saskatchewan Form PD1 every time they witness a document via electronic means. Lawyers are required to append to Form PD1, a photograph or screen capture of their client with their client’s photo identification obtained during the session wherein the documents were executed. Lawyers are required to maintain Form PD1 on their files to supplement their routine file notes.
- For matters that do not fall within the emergency legislative amendments referenced above or remote execution via electronic means is not possible, “curbside witnessing” may be an option. This means, if you can see the client in-person while they are signing, you do not have to be in the same room as them. A suggestion is to have the client drive to your office and remain in their vehicle. You attend outside the car and watch them sign the document. Have the client immediately take a photograph of the document on their phone and email it to you right away. The client should then retain the original document until a later time.
- Review and update your succession plan to ensure that all the information is as up-to-date as possible and covers long-term, short-term and permanent leaves from practice, including current computer login & password information.
- If you choose to change your means of client communication, notify your clients about the alternative means of communication that you intend to use as soon as practicable.
- Where you are required to change your process in working with your clients in order to accommodate concerns with respect to the COVID-19 virus, and you believe that process requires a varied approach or interpretation of the Rules or Code of Conduct, immediately contact the Law Society for assistance and document any and all changes to your process on your client file and the reasons for the change.
- Contact the Law Society at firstname.lastname@example.org if you have any questions or concerns.
Client Identification and Verification/Anti-Money Laundering and Terrorist Financing Requirements
Due to the COVID-19 virus, the Law Society understands that members may face specific challenges in meeting their obligations relating to client identification & verification and the anti-money laundering and terrorist financing rules. While we continue to expect that members will do everything possible to meet all their obligations, we recognize that it may be challenging to verify a client’s identity where the member and client are unable to meet in person.
Members are reminded that in-person attendance is not required in order to collect the information needed to identify the client in accordance with the Rules.
Identifying the client means obtaining certain basic information about your client, such as name and address, and identifying any third party directing, instructing or who has the authority to direct or instruct your client. You must obtain this information whenever you are retained to provide legal services to a client, unless an exemption applies. This step can be done over the phone or by video conference. There is no requirement that it be completed face-to-face.
Verifying the identity of a client means actually looking at an original identifying document from an independent source to ensure that your clients and any third parties are who they say they are. You are only required to verify the identity of your client and such third parties if you are involved in a funds transfer activity, that is, you engage in or instruct with respect to the payment, receipt or transfer of funds, and an exception does not apply.
- If personal attendance would require travel by either yourself or the client, consider whether the use of an agent is an option.
- Consider whether you may be able to rely upon the previous verification by another person (for example, a real estate agent) as permitted under the Rules.
- Members are reminded that the Rules permit members to verify a client’s identity by two methods that do not require meeting face-to-face with the client – the dual process method or using information in a client’s credit file. Please refer to pages 12 and 13 of the Federation's Guide to the Profession for detailed information on these client identification and verification methods.
- Where the client is in attendance and government issued photo identification is the method of verification being provided, you may wish to restrict directly handling the documents or ID. You may take a photo of the identification for your file, and immediately save it electronically to your client file or print it and place it on the file. Please ensure that if the photo is taken with a personal cell phone that the images are deleted as soon as the image is on file.
- If however, you are unable to avail yourself of any other method, in these unique circumstances and as a last resort, the Law Society will take a reasonable approach in its compliance activity if the member were to conduct the verification of the client’s identity by using video conference technology, provided that:
- The member can be reasonably satisfied that the government issued identification is valid and current;
- The member can compare the image in the government issued identification with the client to be reasonably satisfied that it is the same person;
- The member records, with the applicable date, the method by which the member verified the client’s identification;
- The member treats the transaction as a high risk transaction and continues to monitor the business relationship as a high risk transaction;
- The member documents the efforts that were made to verify the client’s identity in accordance with the existing Rules and the reasons why the member was unable to verify the client’s identity in accordance with the existing Rules.
Members are reminded that fraudsters look for opportunities to take advantage of unusual circumstances, such as are being addressed here, and therefore, if a transaction presents too much of a risk, members should decline to act.
For more information, please review the Law Society Rules and Resources.
- In the case of a “Death-Bed Will” or preparation of other necessary testamentary documents, up to the point of execution, use other means of taking instructions/providing advice (i.e. telephone, Facetime, Skype, etc.).
- Consider whether suggesting a holographic will is appropriate in the circumstances to ensure your own personal safety and the safety of others. You could assist your client over the phone (or other non-face-to-face means, if needed) to help them understand how to draft a holographic will.
- Consider if it is possible to arrange for two non-lawyer witnesses to be present. Although healthcare practitioners may be reticent to act as witness, there are others, such as patient advocates and Social workers on staff at the hospital that may be able to assist. Have these discussions early in the process, so that you are prepared when the time comes to execute the documents.
- If you have concerns regarding capacity issues or undue influence, you may need to attend personally to satisfy these concerns. However, you may do so at the time of attending to execute the Will or other testamentary document. If you can have the client wait until a later date, please consider that. Any interviews of medical staff, etc. may be conducted remotely.
- In the event that something less-than-ideal is required in order to ensure that a Will is executed, for example, if there can be no witnesses to a non-holographic Will, or only one witness is available, ensure that you are thoroughly documenting these occurrences and the circumstances surrounding them, in the event that evidence is required in a future application for “substantial compliance.”