This Week in Legal Ethics – New Professional Conduct Ruling

January 17, 2018

By Melanie Hodges Neufeld

The Law Society’s Ethics Committee recently released the following Professional Conduct Ruling as guidance for the profession. For your convenience, I’ve listed the ruling below but it can also be found in our Professional Conduct Rulings Database. 

Date:   November 30, 2017
Cite as:   2017 SKLSPC 3
Code Chapter:   n/a
Code Heading:   n/a
Classification:   Providing Legal Advice via Technology
Practice Area:   Real Estate

Facts:

Two lawyers raised separate requests for guidance about  the use of technology to sign or witness documents:

Lawyer X asked whether a lawyer can meet with a client via Skype or Facetime, and then the client signs a document that is visible to the lawyer through video-conferencing. The client then sends that original document back to the lawyer, who upon receipt signs as witness.

Lawyer X noted that s.22 of The Land Titles Regulations requires that clients when signing documents be “in the presence of the lawyer” when signing.

Lawyer X asked the Ethics Committee to determine whether a client can be considered “in the presence of the lawyer” through skype technology.

Lawyer Y raised an issue with Lawyers executing certificates of independent legal advice using technology, where legislation requires the member to “attend in person”. Lawyer Y contacted the Department of Justice and was advised that there are no pending or scheduled legislative amendments and it was not something that they had plans to consider.

Lawyer Y asked that the matter be put before the Ethics Committee to determine whether a lawyer can provide independent legal advice to a client via video conferencing technology and, in doing so, meet the standard of having “attended in person” as required by certain legislation such as The Saskatchewan Farm Security Act.

Decision:

The Ethics Committee determined that there needs to be a balance between needing to verify identity and that we live in a modern world.

The Committee did not have an issue with providing legal advice via technology, as long as it is appropriate and sufficient for the client’s needs.

The Committee questioned whether there is the legislative framework to allow a signature via technology. There is an opportunity for change. These issues may require legislative changes. It is not for the Law Society to determine whether lawyers can alter jurats to reflect that a document was sworn via web-conference. This will be up to the Legislature and the Courts.

As far as signing a document using technology, it depends on the document: what it says, what the lawyer is swearing, etc. Simply acting as a witness may be permitted, depending on the document. There are certain documents that cannot be signed via technology, due to legislation: testamentary documents, ISC transfer documents. Further, if a lawyer is purporting to have personally seen someone sign a document (in an affidavit or notarized document, for example), then the lawyer needs to be personally there to witness it. This comes directly from the BC Case, First Canadian Title v. Law Society of British Columbia: “attended in person” means that the lawyer attended in person and not via technology. Therefore, ‘in the presence of a lawyer” means that the client is in the physical, presence of a lawyer.

Members should be aware of the BC Case and follow it.