COVID-19 Questions & Updates

The Society’s offices are closed until Monday, May 4, 2020, to align with the Province’s advice to practice physical distancing to help reduce the spread of COVID-19

While our offices are physically closed during this time, our staff is available remotely during our office hours (Monday-Friday from 8:30 AM-4:30 PM) via email and phone for assistance. Review our staff contact information.

Legal Profession Frequently Asked Questions

The Society has developed the following guidance for lawyers to support them in the practice of law and delivery of legal services in the context of the Coronavirus (“COVID-19”) pandemic. This is an unprecedented situation and some flexibility may be required to ensure continuity of essential legal services without undue risk to public health.

Public health agencies have recommended a number of measures to reduce the risk of transmission, including physical distancing.  However, many legislative requirements and risk management measures require in-person contact with clients and others.

Lawyers have been asking the questions set out below. Answers have been prepared to assist lawyers with alternative approaches to discharge competing duties.

We are updating these questions and responses as needed, so please check back regularly.

Last updated April 2, 2020 at 11:30 PM with the following

Financial Support

If I stop practicing because of COVID-19, do I have to pay fee to change status?

We are waiving the application fee for those members who wish to change their practising status to non-practicing and back to practicing within the next few months because of the impact of the pandemic on their practice. Learn more about changing your membership category.

Will the Society and LIANS be deferring practicing fees and insurance levy payments?

The Society and LIANS are deferring the April and May fee and levy payments for our members enrolled in our Pre-authorized Payment Plan (PAP) for this year.   Members on PAP will be contacted by email with further information about the process to request a deferral.

This deferral of fee and levy payments applies only to outstanding fee and levy payments for this year that have not yet been paid.  We have not yet made a decision with respect to annual fee and levy payments for the coming fee year July 1, 2020 to June 30, 2021.  Please be patient with us as we review our options carefully.

What is happening with insurance surcharges and deductibles?

If you are currently paying the claim surcharge please note that since this is collected with the Society fees, a decision with respect to the surcharge due on July 1, 2020 will made in concert with the Society’s decision on the 2020-2021 fees.

If you currently owe the individual deductible (i.e. you have a paid claim after September 2018 that triggered the deductible), LIANS will defer payment of your deductible until September 30, 2020.

What other assistance might be available to lawyers and law firms?

Lawyers and law firms should consider accessing financial assistance through government funded programs. The Federal Government has announced supports for business through a number of programs.  Learn more about federal assistance programs. The provincial government have also various supports for business.  Learn more about federal assistance programs and a table summary of available programs.

In particular, the Federal “Wage Subsidy Program” may be available to assist law firms with the financial impact of COVID-19 on their business.  Learn more about the Wage Subsidy Program and recent changes to the program.

Planning

What should lawyers do to prepare for practice interruptions?

If lawyers have disaster or business continuity plans in place for their workplaces, they should review these now and consider to what extent the plan(s) should be implemented at this time.

If lawyers do not have such plans in place, or existing plans do not adequately address the concerns raised by COVID-19, they should consider reviewing the below resources and following the recommended planning steps:

Other specific practice management considerations for lawyers preparing for practice interruptions in in the context of COVID-19 include:

Working from Home:

If lawyers choose to work remotely from home as part of their plans, they should consider whether all the key information they require is readily accessible and current. This includes client contact information, client files, staff and service provider contact information, bank account information, and passwords for personal and staff voicemail, computers and emails.

Lawyers should also consider how they will:

  • keep client information confidential from family members or others
  • communicate with clients
  • secure and receive deliveries to their offices
  • continue to delegate to, and appropriately supervise staff.

If staff will also be working remotely, lawyers must also ensure that staff are able to maintain confidentiality in doing so.

Illness or Absence of Lawyer or Staff:

In the event that a lawyer is unable to continue to manage their practice due to illness, they should have a Succession Plan in. Review the Succession Planning Toolkit for more information.

Lawyers should also consider what specific tasks are impacted if staff are unable to attend the office and ensure that coverage is provided so that clients are not prejudiced.

Ongoing Communication:

If lawyers are changing their business hours, means of communication or delays in communication, or if other changes to firm operations are anticipated, lawyers should communicate this information to clients and staff as soon as practicable. Lawyers may consider using email updates, notices on their websites or office doors, or other means, as appropriate, based on the needs of their clients and staff.

If sending mass emails, please ensure client emails are in the BCC line.

Client Communication

How can lawyers communicate effectively with clients while using physical distancing to reduce health risks in their practices?

Lawyers should consider conducting routine meetings with clients by phone or using video-conferencing in order to comply with public health recommendations regarding physical distancing. It is important for lawyers to be aware of the types of engagements with clients that in typical circumstances would require an in-person meeting and that in the context of COVID-19 require a heightened risk-based approach if an in-person meeting is not going to be conducted.

Lawyers should be mindful of their obligations to communicate effectively with clients in selecting an alternative means of communication:

Commentary [3] to Rule 3.1-2 of the Rules provides that what is effective communication with the client will vary depending on the nature of the retainer, the needs and sophistication of the client, and the need for the client to make fully informed decisions and provide instructions.

If lawyers are planning to change the means by which they communicate with clients, they should ensure that clients are made aware as soon as practicable.

Below is some suggested language for retainer letters:

If the Client wishes to utilize electronic communications (including but not limited to video-conferencing and email) for communications with their lawyer, the Client agrees to the following Terms of Use for Electronic Communications.

TERMS OF USE FOR ELECTRONIC COMMUNICATIONS

The lawyer/law firm cannot guarantee the security and confidentiality of electronic communications and will not be liable for improper disclosure of confidential information that is not the direct result of intentional misconduct of the lawyer/law firm. There are risks involved in using electronic communications, including, but not limited to, the following:

(a) Use of electronic communications to discuss sensitive information can increase the risk of such information being disclosed to third parties;

(b) Online services may have a legal right to inspect and keep electronic communications that pass through their system;

(c) Electronic communications can introduce malware into a computer system, and potentially damage or disrupt the computer, networks, and security settings;

(d) Electronic communications can be forwarded, intercepted, circulated, stored or even changed without the knowledge or permission of the lawyer/law firm or the Client.

Can a lawyer use a virtual means of assessing a client’s capacity such as video conferencing or telephone?

Lawyers should continue to consult all relevant legislation and case law that governs capacity, and consider whether or not they have the ability to adequately assess a person’s capacity through remote means, such as on video conferencing or telephone. If capacity is assessed remotely, a lawyer should prepare a detailed memo to file regarding the process relied on and reasons for the lawyer’s conclusion as to the client’s capacity.

In using video conferencing or telephone as the exclusive means of communicating with a client, lawyers must also assess whether there is a risk that the client may be subject to undue influence or duress.

What are some best practices for using video conferencing in providing legal advice or services?

When using video conferencing for the provision of legal advice or services, lawyers should:

  • 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.  If you are reviewing a specific clause, they could initial the clause or they could initial each page to confirm that you have reviewed the document with them.
  • Maintain detailed records including:  date, start and end time, method of communication, identity of all present, and minutes of content of meeting

Confirm advice, discussions, and/or decisions in writing to the client immediately or shortly after the virtual meeting.

What are some best practices for using video conferencing in providing independent legal advice?

  • The issue of independent legal advice is a bit more complicated, especially if a signed waiver is required as it goes without saying that if there is a need for ILA it has to be clearly explained.
  • If you are providing the ILA you need to take extra precaution to determine that they are alone and not being compelled in any way. A detailed note of the questions you ask and advice is appropriate.

Virtual Documentation

Can a lawyer use a virtual means of identifying or verifying the identity of a client such as video conferencing or telephone?

Please review the guidelines that have been prepared by the Federation of Law Societies in response to COVID-19

Please be advised that client identification and verification requirements of Regulations 4.13 continue to apply. However, lawyers should review the information below as they do not need to verify the identity of their clients for all matters.

If only client identification is required, lawyers are able to comply with their professional obligations without meeting face-to-face or via video conference. As a result of COVID-19, until further notice, the Nova Scotia Barristers’ Society will interpret the requirement that lawyers verify the identity of their client face-to-face as not requiring the lawyer   to be in the physical presence of the client. Alternative means of verification such as face-to-face verification via video conference will be permitted. If lawyers choose to verify the identity of clients via video conference, they should attempt to manage some of the risks associated with this practice as outlined below.

Current Requirements:

Because there is no obligation to meet with a client face-to-face to identify the client, lawyers should keep in mind the distinction between identifying and verifying the identity of a client:

Identifying the client means obtaining certain basic information about your client and any third party directing, instructing or who has the authority to direct or instruct your client, such as a name and address. 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.

Verification of client identity occurs face-to-face unless:

  • the individual whose identity is being verified is present in Canada and an attestation from a commissioner of oaths or other guarantor is provided; or
  • The individual whose identity is being verified is not present in Canada and verification is provided by an agent.

For more information, please review the NSBS Client Identification and Verification Requirements resources.

Managing the Risk of Face-to-Face Verification via Video Conference:

Where a lawyer employs video conference as a means to conduct face-to-face verification of client identity instead of being in the physical presence of the client or by attestation or an agent, the following factors should be should be considered to help manage some of the risk:

  • Consider whether there are any red flags associated with fraud or money laundering, attempt to mitigate risk, and determine if they should proceed
  • Stay alert to the fact that persons may attempt to use situations like COVID-19 as an opportunity to commit fraud or other illegal acts and to be particularly vigilant for red flags of fraud or other illegal activities.
  • Where virtual methods are chosen, lawyers must be particularly alert to these red flags to ensure they are not assisting in or being reckless in respect of any illegal activity.
  • Lawyers   should document any red flags, what measures they have taken to mitigate that risk, and their decision on how they proceeded
  • If many red flags are present, lawyers should consider whether they should proceed with the matter.
  • Consider using another method of verifying identity that may reduce the risk of fraud or money laundering such as the dual process or credit file methods.

For more information about these methods, review the Federation of Law Societies’ Guidance for the Legal Profession resource.

What if the client’s identification has expired?

The Nova Scotia government is taking measures to ensure the health and safety of their employees and the public, including extending the validity of identification documents, including drivers licenses, that have expired on or after March 1, 2020, so that in-person visits to renewal facilities can be avoided.

For the purposes of verifying client identity using this type of identification document, if a person presents a document or information affected by such a decision, the lawyer must continue to determine that the document is a government-issued photo ID document, but can, until further notice, consider the document or information as valid and current pursuant to its issuing authority. Alternatively, the lawyer may wish to consider using another method to verify the identity of the person. Learn more about extended validity periods for driver’s licences in Nova Scotia.

Can a lawyer use virtual commissioning?

Commissioning is governed by the Notaries and Commissioners Act and is not regulated by the NSBS. Although the law is evolving in this area, the best practice for commissioning documents remains for the lawyer who is acting as a commissioner to be in the physical presence of the deponent to commission the document(s).

However, as a result of COVID-19 and until further notice, lawyers may choose to commission via video conference. The best practice is for the client to provide their original document to the lawyer for execution.   If this is not immediately possible, the lawyer should execute a printed electronic (scan or fax) copy and then later the original when it becomes possible.

The jurat of an affidavit is an important record and should accurately reflect the circumstances of the swearing/affirming. For example:

Sworn to/ Affirmed (circle one)

by videoconference

from _________________ (location of affiant)

to ___________________ (location of lawyer taking oath)

this ____ day of _______ 2020

If you require identification to verify the identity of the affiant, you should have the affiant show you the front and back of their government issued identification. You should document the type of government ID produced and that you reviewed and verified the information. Learn more about extended validity periods for driver’s licences in Nova Scotia.

If you do not have a true original, you should explain to the authority receiving the affidavit of the circumstances and seek their guidance.

If lawyers choose to use virtual commissioning, they should attempt to manage some of the risks associated with this practice as outlined below.

Managing the Risk of Virtual Commissioning:

If a lawyer chooses to use virtual commissioning, the lawyer must be alert to the risks of doing so, which may include the following issues:

  • Fraud
  • Identity theft
  • Undue influence
  • Duress
  • Capacity
  • Client left without copies of the documents executed remotely
  • Client feels that they did not have an adequate opportunity to ask questions or request clarifying information about the documents they are executing.

To manage some of the risks, the lawyer must consider whether there are red flags of fraud in the matter. To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession  resource. You must assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you are able to assist the client at this time without meeting in person.

You must confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference.

A lawyer should also be alert to the fact that persons may attempt to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts. Where lawyers choose to use virtual commissioning, they must be particularly alert to these red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.

How do I fulfill the requirement to have original documents when filing scanned documents with Property Online?

  • You can witness a signature and take affidavits remotely through video conference – review related information in above q&a.
  • After you witness the client’s signature, the client can scan the document to you.  If the client does not have access to a scanner or scan to pdf application on their phone, perhaps they can fax from a local business.
  • When you receive the document, you place your original signature as the witness or commissioner of oaths. 
  • The Registrar General of Land Titles has sent an email to all POL users to confirm the process:

REGISTRAR GENERAL’S DIRECTIVE (COVID-19/ORIGINAL DOCUMENATION):

This Directive is being issued with respect to the interpretation of the term “original” for the purposes of the Land Registration Administration Regulations.  During the period in which the Province of Nova Scotia is asking Nova Scotians to practice social distancing, the Office of the Registrar General will interpret the term to include a document displaying only one “wet” signature.  For example, if a client were to execute a document in the lawyer’s presence over skype or a similar application, the client could e-mail that document to the lawyer for printing and the lawyer would then apply his or her “wet” signature.

Documents executed in this fashion will suffice for the purposes of retaining documentation and registering documentation in paper format as required by the Regulations.  Our Land Registration Offices have been instructed to receive and process documents containing the “wet” signature of only one individual.  You must be satisfied that your client’s “dry” signature was made by your client and you might consider asking them to e-mail you a copy contemporaneously with your conversation to make that confirmation.

I have had conversations with the Nova Scotia Barristers’ Society and understand that they have issued updated information concerning the client identification rules as well as taking affidavits and oaths with non-face-to-face means that you will have to consider as well and those materials can be found at https://nsbs.org/covid-19-questions/.  I have also had conversations with several title insurers and I understand that they are available for questions regarding restrictions contained in mortgage instructions for executing documents. 

I wish to reiterate that we are limiting the interpretation to this emergency measure to protect your health and the health of your clients and to permit business to progress in the usual course as far as possible.

Sincerely,

Theresa Graham

Registrar General of Land Titles

Theresa.graham@novascotia.ca

How can I get documents filed with the Registry of Joint Stocks?

RJSC has issued guidance and information which you can find at https://nsbs.org/wp-content/uploads/2020/03/RJCS-Messaging.pdf

My client requires a Will, Power of Attorney, and/or Personal Directive. Can I witness the execution of these documents remotely?

Lawyers must review any applicable Provincial legislation (e.g. Wills Act, Powers of Attorney Act, Personal Directives Act) with respect to witnessing requirements that may be set out therein. The Wills Act specifies that the document must be signed “in the presence of” the witnesses and there are certain people who cannot be a witness such as a beneficiary. The Powers of Attorney Act requires only that the document be witnessed. The Personal Directives Act states that the signing of a personal directive must be witnessed by someone other than a delegate, a spouse of a delegate, a person who signs on behalf of the maker or the spouse of a person who signs on behalf of the maker. Please see the FAQs regarding virtual commissioning for further information above.

Videoconferencing is not generally recommended by the NSBS for the execution of Wills, Powers of Attorney, Personal Directives or other documents. However, in the circumstances and as a last resort to avoid personal contact, videoconferencing can be employed to assist clients in securing these important documents. 

You must assess whether your client has capacity. You must assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you are able to assist the client at this time without meeting in person. Further, you must confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference. With regard to capacity, see our FAQ on capacity above.

The Society encourages lawyers who employ videoconference to provide a written direction to clients recommending that the clients come into the lawyer’s office to re-execute the documents in person once the public health recommendations for isolation have been lifted. 

Clients must also be advised that a court or other agency may not accept documents executed via videoconference.

After the videoconference lawyers should do a contemporaneous memo to file confirming their opinion that the client had capacity, was not under duress, had sufficient understanding, etc. It may also be prudent to do the reporting letter to the client at that time as well.

Trust Accounts and Banking

What do I need to consider to operate my trust account through electronic banking?

Trust accounts can be operated through electronic banking.  Where changes to processes are being made, particularly in a crisis situation, there may be additional risks created. This may be a time to consider other additional controls and greater staff supervision and oversight to offset the risk. Here are some things to remember:

  • Dual authorization is no longer required by the Regulations but is a recommended control.
  • The Trust Account Regulations (Part 10) are the minimum requirements; each firm is responsible for putting in place the internal controls that are appropriate to their own situation.    Lawyers need to identify risks and develop customized control mechanisms to eliminate or manage risk.   Additional controls may include having a review of all trust account transactions as a standing item at regular Partners meetings.   Also, a pdf copy of the client’s trust ledger card (history of client transactions) should be reviewed and electronically stamped/signed as “reviewed” by the responsible lawyer for each withdrawal transaction before it is processed. Law firms may wish to look to their Accountants for additional guidance on appropriate internal controls based on their individual circumstances.
  • Lawyers must continue to document transactions, which means you need to print the confirmation screen of online transactions of withdrawals and deposits.  The confirmation needs to have the financial institution and account from which the funds were sent, the financial institution and account to which the funds were deposited (i.e. your trust account), the amount deposited, and the date and time of the transmission of funds.  If the confirmation screen does not identify the client on whose behalf the funds have been deposited/withdrawn, electronically note on the PDF the client name and/or matter number. Also, include other details such as the source of funds.

You can use the print to pdf function to create appropriate documentation.  If the banking software does not have a “print” function, take a screen shot on your Mac or Windows device.  If you use mobile banking on your phone, take the screen shot as you would normally on your phone.  Develop a system for storing electronic documents/information in a secure location so it can be easily accessed when needed.

Compliance with Regulatory Requirements

If you are unable to meet the requirements of the regulations, the exception to the regulations must be documented and reported in the manner outlined in Regulation 10.6.  

Below we provide some information based on the type of transaction:

Electronic withdrawals:

It is acceptable for a lawyer to use the Electronic Transfer Authorization Form to authorize the withdrawal/transfer of trust funds. A lawyer would not be able to use the Electronic Transfer Authorization Form to direct staff (who are non-members) to solely withdraw funds out of trust. This is because non-member staff access to online banking must be limited to “view only” or the office must have a system for two-person authentication already set up.  For firms with a larger staff, a three-person authentication system can be used in instances when the lawyer is not able to electronically process a transaction (signed form and two staff electronically processing the transaction). The Regulations do not restrict who may be a signatory on a lawyer’s trust account, but the lawyer must exercise professional judgment before permitting any person access to privileged or confidential client information.

Transferring funds from the General Trust Account to the Service Nova Scotia Trust Account:

Trust to trust transfers are not an issue. The lawyer may complete the transfer and send a copy of the confirmation screen to appropriate staff/bookkeeper. 

Transferring funds from the General (Operating) Account to the Service Nova Scotia Trust Account:  

Transferring operating funds to the Service Nova Scotia Trust Account falls under subregulation 10.5.3(c) (for the Service Nova Scotia Trust Account only). Again, this can be done electronically; however, lawyers need to ensure that when setting up the online banking, non-member staff do not have the ability to solely process trust account transactions.

How can I confirm non-member staff do not have the ability to process trust account transactions?

Theft by an employee who is not a member of the Society is not covered by the Lawyers’ Fund for Client Compensation. The Designated Lawyer should restrict online banking access to “view only” for applicable employees. Confirm employee staff access by obtaining documentation from your bank. Also, view the online banking screen of an employee with “view only” access. If it appears as though the trust account could be selected in the transaction processing screen – their access may not be restricted properly. Confirm with your bank that any attempts to process a transaction will be denied.

Deposit without delay:

Electronic banking allows for deposit without delay; however, controls and precautions need to be considered.  Lawyers need to be aware of clearing periods on funds that have been deposited electronically to ensure they do not act on funds before they have cleared. Every law firm should discuss clearance periods with their banks.

Impact of COVID-19 on Articling

Will office closures prevent my articled clerk from completing their articles?

Office closures will not prevent an articled clerk from completing their articles provided they can continue to work remotely under supervision. As long as supervision occurs (remote or otherwise) the articled clerk would still be considered to be articling.

How must my articled clerk be supervised?

Supervision of an articling student who is working remotely could take many forms. Supervision could include daily telephone calls to check-in, videoconferencing, increased email communication, use of document sharing software or websites to review work products etc. Most importantly, there should be a plan in place between the article clerk and principal about how to communicate should the articled clerk need help.

Principals should also consider arranging for a backup contact for the articled clerk. This should be another active lawyer that the articled clerk can reach out to for assistance in the event a principal becomes ill or is not available.

What if my articled clerk cannot be supervised?

For those articled clerks sent home who will not be supervised, this would be a break in the articling term – a leave of absence. Articled clerks will need to advise the Society if they have a break in articles.

Will the Society modify or adapt articling requirements due to the impact of COVID-19?

No. Articled clerks will still be expected to meet the requirements of 12 months of articling and completion of the Bar Admission Program to be eligible to be called to the Bar.

What if my articled clerk gets sick or I give them vacation?

If a principal gives an articled clerk time off for vacation or medical leave in the normal course of their employment (i.e. not months, but perhaps a few weeks), then this may not impact their articling term. For example, some firms routinely give all employees two weeks holidays and we have not considered this to impact the 12 months of articling time. We rely on the principal to confirm the articling term has been met.

What will happen if the situation continues and I have an articled clerk scheduled to commence articling June 1?

The requirement for supervision and meeting the articling requirements will continue to apply to articled clerks commencing June 1. If the situation continues, principals may wish to use this time to allow articled clerks to focus on the Foundation Modules in PREP rather than on legal work. The Foundation Modules are provided online and would allow the articled clerk to obtain valuable knowledge prior to commencing work at the firm. It would also limit the need for supervision while allowing the articled clerk to commence articling and work from home.

When can my articled student register for CPLED?

The articled clerk must have secured an articling position and be approved by the Society as member (articled clerk) before completing the CPLED registration.   Some provinces are allowing students to take courses even if they have not found an articling position.   In Nova Scotia, we have a requirement that students have their articling position in place before starting the course.  Therefore, after the articling application is approved, you can register with CPLED.  If you have any further questions, you may contact us at admin@cpled.ca.

What is happening with the June Call to the Bar?

It is unlikely that we will hold the June Call to the Bar in-person. We are coordinating with the courts to see what options may be available to us.

Completing Documents for Articling

Will the Society accept electronic signatures on forms?

Yes. We will accept documents by email with an electronic signature. We ask principals/ articled clerks send the original to us as soon as they are able.

Will the Society accept an affidavit executed through video conference?

Yes.  We ask that you attempt to have one original with both signatures and you can send that to us electronically now and the original as soon as you are able.

If a lawyer is swearing a document with a scanned signature, we will accept that electronically as well.  Then execute a full original when you are able and send the original to us at that time.

Will the Society accept electronic signatures on Articling Agreements?

Yes.  We will accept agreements by email with an electronic signature.  It would be best if Principal and articled clerk can coordinate so that we have one final document.  If that is not possible, we will accept documents signed in counterpart as one final and binding agreement.   We ask Principals to send the original(s) to us as soon as they are able.

Health and Safety and Client Service

How do I balance my Quality Service obligation to clients with Safety obligations to lawyers and staff?

Our public health officials have made it clear that the safety and health of you, your family, your employees, your clients and everyone else are the most important consideration. You will be called upon to make decisions to protect yourself and your staff, which may prevent you from providing clients with as quick a response time as has occurred in the past. Those decisions will require good judgement based on the circumstances.

What should I do when handling incoming client mail?

The World Health Organization (WHO) has advised that the coronavirus may survive on surfaces for several hours or a few days.  However, WHO has also suggested that the likelihood of packages being contaminated are very low and do not recommend refusing mail. It is recommended that any surface you are concerned about be disinfected and that you ensure you wash your hands with soap and avoid touching your face. 

If you decide to implement a new protocol for handling incoming mail, such as instituting a waiting period before mail is opened, it is recommended that you update clients about such changes in your communications processes. Your obligations regarding quality of service are found in rule 3.2-1:

Quality of Service 3.2-1 A lawyer has a duty to provide courteous, thorough and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil.

The relevant Commentary to that rule states:         

[3] A lawyer has a duty to communicate effectively with the client. What is effective will vary depending on the nature of the retainer, the needs and sophistication of the client and the need for the client to make fully informed decisions and provide instructions.

[4] A lawyer should ensure that matters are attended to within a reasonable time frame. If the lawyer can reasonably foresee undue delay in providing advice or services, the lawyer has a duty to so inform the client, so that the client can make an informed choice about his or her options, such as whether to retain new counsel.

There is no requirement in the Code to respond to communications within a specific period of time; communications must be effective and reasonable depending on the nature of the matter.  For example, your obligations to address matters related to a child protection matter within a specific time frame are likely much different than your obligations for response in a civil litigation matter. 

Can I limit or decline to provide services for safety reasons?

With regard to other risk management issues that may arise during this time, it will be for lawyers and law firms to set their own policies for meeting with clients, while keeping in mind the limitations put in place by the Provincial Government and considering their legal obligations under legislations such as the  Occupational Health and Safety Act. The Courts of Nova Scotia have also published their own statements regarding their expectations for counsel and the public.

Please note that the Society does not require members to place themselves in jeopardy for the benefit of the client. A lawyer may withdraw or otherwise decline to act if to accept the retainer may put the lawyer or the lawyer’s staff at risk. Potential to exposure to clients or others who may have recently travelled out of the country or otherwise may pose a health risk could pose such a risk.  Lawyers are always expected to balance their duties to the Court, to client(s), and to their own safety and that of their staff and family. However, such a balancing does not require that lawyers place themselves in an unsafe situation. If you determine that you cannot meet with a client or attend a court date, you will need to be clear about your intentions with the client, court, and opposing counsel about why you will not be appearing, and to make any suggestions you can about how to manage the matter going forward (e.g. teleconference etc.).

Guidelines for lawyers who have tested or presumptively tested positive for COVID-19 virus

Can I be required to disclose information about my client?

A lawyer who has tested positive for the COVID-19 virus, or who is being treated as presumptively positive, may be required to provide information to a provincial health officer or their designate, pursuant to the Public Health Protection Act and regulations.  The information sought might include the names and contact information of individuals with whom the lawyer has had recent contact. This may include the names of and contact information for clients.  Under some circumstances, health authorities may also seek more detailed information such as the nature of the lawyer’s recent encounters with individuals or their duration.  Such information is confidential and, in some circumstances, may be privileged.

The Code of Professional Conduct provides an exception to the duty of confidentiality in order to protect public safety or prevent future harm.

Future Harm / Public Safety Exception

3.3-3 A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.

The Supreme Court of Canada has recognized an equivalent exception to privilege if a serious and imminent threat to public safety exists to an identifiable person or group of persons (Smith v. Jones, [1999] 1 SCR 455). 

How much information can I reveal?

In providing recent contact information to health authorities, a legal professional who has tested positive for the virus, or who is being treated as presumptively positive, may disclose the names and contact information of clients with whom the professional has been in recent contact. However, the legal professional must not disclose more information about those individuals than is required. In particular, a legal professional should take care not to identify as clients any individuals included in the disclosure or make any unnecessary reference to the purpose or circumstances of the contact. 

Where the health authority asks about additional circumstances, such as the recency, proximity, location and duration of the contact, the lawyer should provide information only to the extent necessary to answer the related inquiry.

Do I need client consent?

Client consent in advance to the disclosure of information is not required; however, notice of the disclosure to any affected clients should be provided within a reasonable time.

What are my record-keeping requirements?

If confidential client information is disclosed, the legal professional should record this disclosure in accordance with Commentary [5] of rule 3.3-3, and retain the note:

[5] If confidential information is disclosed under rule 3.3-3, the lawyer should prepare a written note as soon as possible, which should include:

(a) the date and time of the communication in which the disclosure is made;

(b) the grounds in support of the lawyer’s decision to communicate the information, including the harm intended to be prevented, the identity of the person who prompted communication of the information as well as the identity of the person or group of persons exposed to the harm; and

(c) the content of the communication, the method of communication used and the identity of the person to whom the communication was made.

Who should I contact if I have to disclose client information or if I have more questions?

A lawyer who believes that disclosure may be warranted should, if able, contact the Nova Scotia Barristers’ Society for ethical advice regarding disclosure in these circumstances.

If you have any questions about practice and professional obligations, please contact Elaine Cumming at ecumming@nsbs.org

NSBS Business Operations

Are the Society Offices open?

Our offices are are physically closed; however, our staff is available remotely during our office hours (Monday-Friday from 8:30 AM-4:30 PM) via email and phone for assistance. Review our staff contact information.

Can I still contact Legal Services Support?

If you have specific questions about how to comply with your professional obligations or navigate practice management issues , contact the Society by email at LSS@nsbs.org.

We will return your inquiries by email or telephone as soon as possible.

Can I still access the NSBS Library?

No. The Society’s library at the Nova Scotia Law Courts is closed until further notice. We can no longer accept deliveries, documents or book returns at this time. We are available to answer questions and can assist with online reference work remotely. Contact the library at nsbslib@nsbs.org or call 1 866-219-1202.

Are Society events cancelled?

All Society in-person events are cancelled until mid-June 2020, when we will reassess. We will post event updates to the nsbs.org website and social media.

We will hold our Annual General Meeting virtually on Saturday, June 13, 2020 and members will receive further details about the virtual meeting in the coming weeks.

Health and Mental Wellness

What supports are available to lawyers to address the mental health and social consequences of responding to COVID-19

Your Nova Scotia Lawyers Assistance Program (NSLAP) provider, Homewood Health, has provided an update with answers to a few frequently asked questions surrounding COVID-19 and the impact on Homewood services.

Homewood Health is available 24/7 to support you, your employees and your families during this or any other time of need. The contact number is 1-866-299-1299.

Homewood has also produced a poster on How to Stay Productive and Motivated when Working from Home.

If lawyers are required to meet with clients or others face-to-face, what can they do to reduce the risk of exposure to COVID-19?

In some situations, it may not be possible to avoid meeting with clients and others. Lawyers should consider taking precautions to minimize the risk of exposure to COVID-19. This includes hand hygiene, respiratory etiquette, environmental cleaning and physical distancing.  Lawyers should also consider screening clients before meeting. 

Sample Screening questions are:

Q1.  Do you have a cough?  Y/N

Q2.  Do you have a fever?  Y/N

Q3.  Do you have difficulty breathing?  Y/N

Q4.  Have you travelled internationally within the last 14 days (outside of Canada) Y/N

Q5.  Have you had close contact with a confirmed or probable COVID-19 case?  Y/N

Q6.  Is anybody in your household currently on self-quarantine ?  Y/N

Q7.  Have you travelled outside of Nova Scotia since March 23rd?  Y/N

For more information, review the recommendations set out in these public health resources and consider implementing them:

Government of Nova Scotia:

Government of Canada:

Public Frequently Asked Questions

How do I contact reception?

Our reception line at 902-422-1491 will be open and will be monitored regularly. You may also continue to contact us at info@nsbs.org and inquiries will be forwarded to staff and responded to accordingly.

How do I share a concern with the Society?

You may use our online intake form at https://nsbs.org/concerns-with-a-lawyer/intake-form/ or email intake@nsbs.org. You can call our intake line at 902-422-1491. 

While our Intake Line remains open, we are experiencing a high volume of calls. You may find it more efficient to use the online intake form or send us an email. We can get an initial response to you more quickly this way.

If contacting the intake line via email or phone please include your name, the lawyer’s name and a brief description of your concern. Learn more about sharing your concerns about a lawyer.

Can I still drop off documents?

No. Please do not drop off documents or packages to our office. You can email us at info@nsbs.org or fax 902 429-4869.

We will continue to provide timely updates on our Facebook and Twitter pages.