The Law Society recognizes that our members will be faced with challenges in assisting their clients during this time of social distancing and other measures 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.
Minimize Direct Contact
In order to minimize direct contact, the Law Society recommends the following:
a. Consider whether matters need to be addressed on an urgent basis or can be delayed to a time of less heightened concern; and
b. Use technology, where possible.
Use technology, such as video conferencing to the extent possible and 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, and beyond, the point where documents must be executed.
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. As well, the free webinar - Business Continuity for Law Offices In The Face of Coronavirus: Presented by Barron Henley (CPD 278), is available on demand, contact firstname.lastname@example.org for access!
For technological inquiries or assistance contact email@example.com.
Manage Virtual Meeting Risks
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, and see LawPro’s Security Tips for Lawyers Hosting a Zoom Meeting
In circumstances where in-person attendance is required, 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.
Execution of Documents:
- 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 Court of Queens Bench for Saskatchewan has provided further guidance in its April 23 Directive Update as a result some questions raised respecting the interaction of the amendments to the EIDA regulations and the Law Society’s Practice Directive Number 1 and with the Court’s Directive. In that respect, the Court provides the following clarification and guidance:
As a starting point, the Court’s Directive provides only that unsworn materials may be filed with the Court. It does not contemplate that an application would proceed on unsworn affidavit
Further, while the presiding Justice will make the final determination in each specific matter, it is reasonable to expect that the process prescribed by the Law Society will be followed by all lawyers who are filing evidence in support of an application: either to proceed based on urgency, or on the merits of the application. In the event it is not possible for a lawyer to meet the terms of the Law Society Directive, that lawyer may wish to seek leave from the presiding Justice to have their client/witnesses present by telephone at the hearing of the matter to swear or affirm the document. In that regard, while there may be some leniency at the initial stage where matters are proceeding on a time-sensitive basis, by the date of a chambers hearing it would only be in exceptional circumstances that the Court should be asked to administer affirmations/oaths where a lawyer is involved.
b. Emergency Regulations and Practice Directives:
- The Law Society of Saskatchewan continues to work closely with the Government of Saskatchewan to respond to the ongoing state of emergency. On March 26, 2020, the Government of Saskatchewan enacted the following emergency regulations:
- On April 16, 2020, the Government of Saskatchewan enacted the following emergency regulation:
- The Law Society of Saskatchewan issued Emergency Practice Directives Number 1 and 3 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 appropriate physical distancing protocols.
- The practice directives set 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 directives, lawyers are required to complete a Declaration in Law Society of Saskatchewan Form PD1 every time they witness a document via electronic means, or complete a Form PD3 - Declaration of Lawyer Who Has Witnessed a Will via Electronic Means every time they witness a Will via electronic means. Please refer to the Directives and the associated Declarations as well as the amended regulations and the Q&A documents prepared by the Government of Saskatchewan for more detailed information regarding the new requirements.
c. Other options to consider:
- For matters that do not fall within the emergency legislative amendments referenced above or in cases where remote execution via electronic means is not possible, “curbside witnessing” continues to be an option for certain documents. 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.
- Some additional measures and innovations firms have implemented to promote physical distancing and limit potential exposures are:
- Rotating schedules: each lawyer and their staff person can only attend the office during their scheduled time
- Creating quadrants within the office space and restricting any movement between quadrants
- Implementing client screening measures
- Using an outdoor space to meet with clients only on an as needed basis
- Requesting that clients supply their own pen, or clients are provided with a brand-new wrapped pen which they then retain following the meeting
- Documents that require witnessing are placed in the plastic sleeve with the signature block cut out following which the plastic sleeves are discarded
- Quarantining executed documents for one or more days
- Lawyers and staff wearing gloves and a mask at all client meetings
- Clients not permitted to enter the main office space and are restricted to a closed entry/meeting space.
- 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.