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 4
Code Chapter: n/a
Code Heading: n/a
Classification: Providing Legal Advice via Technology;
Practice Area: Real Estate
Lawyer X represents all three parties in a real estate transaction; the vendors, the purchasers, and the lending institution, ABC Lender.
On the file, there were, among other documents, a Verification of Individual’s Identity in Canada by Commissioner or Guarantor for both vendors. Both verification forms were completed by a Commissioner for Oaths, who is also an employee of ABC Lender.
There is also a letter from Lawyer X to ABC Lender that states:
As discussed with my assistant, please have witness sign the Affidavit of Execution before a Commissioner for Oaths and return both copies of the mortgage to our office. We will also require a copy of the vendors’ identification referenced on the Client ID forms.
Lawyer X’s practice is to have an employee of ABC Lender complete the Verification Forms when no one from the firm meets with clients. Lawyer X indicates that this is common practice in his firm when representing out-of-town clients. The execution of the sale and purchase documents were also administered before the employees of ABC Lender and not Lawyer X. Concern was raised with Lawyer X that he was purporting to represent clients without, in fact, meeting and advising them on the matter.
When the issue of not meeting with clients was raised with Lawyer X, he inquired whether he could meet with clients via phone or skype and provide legal advice in that manner, prior to having the clients meet with ABC Lender employee(s) to execute the documents.
This matter was referred to the Ethics Committee to determine whether Lawyer X’s proposed solution would be an acceptable practice.
The Ethics Committee determined that it is important to strike a balance between verifying client and others’ identities and utilizing modern technology.
The Committee did not have an issue with providing legal advice via technology (phone or skype), if it is appropriate and sufficient for the client’s needs. The rules surrounding client confidentiality and loyalty still apply, so the lawyer must ensure that legal advice given via video conferencing meets all obligations required by lawyers. For example, it would be inappropriate to provide legal advice to the purchaser/mortgagor client with the bank representative or the mortgage broker in the room.
Whether it is appropriate to use technology to sign a document, depends on the document and jurat: what it says, what a lawyer is attesting to, etc. If a lawyer purports to have personally witnessed someone sign a document, then the lawyer needs to have actually done so. This comes directly from the BC Case, First Canadian Title v. Law Society of British Columbia: “attended in person” means that the person signing was personally present when the signatory signed. Members should be aware of the BC Case and follow it.
Given the similarities between the BC case and the member’s proposal, the Ethics Committee suggests it would be inappropriate for Lawyer X to advise clients via video conferencing and then swear an affidavit of execution as if Lawyer X personally witnessed the client’s execution based on personal attendance. However, the practice of meeting with clients via video conference, providing legal advice during the video conference and then having the client meet with a third-party representative for document execution, is permitted. This third party may be a bank representative or other agent for the lawyer.