COVID-19 Legal Profession FAQs

Society Operations

Will the Society reducing practicing fees?

Unfortunately, we cannot reduce fees and this is why:

  • We anticipate that in the current economic climate there may be a lower number of lawyers practising in Nova Scotia in the coming year, which will reduce the Society’s revenue.
  • We introduced cost saving measures to operate with reduced revenue, while still maintaining fees consistent with last year including:
    • freezing salaries at 2019 levels,
    • reducing travel and meeting costs, and
    • eliminating temporary/summer positions.

Despite these cost saving initiatives, an anticipated shortfall of around $50 per member remains and we will draw down on current reserves to fund this shortfall rather than increase fees. Since reserves remain within the target ranges, there is little capacity to further draw down on reserves to reduce fees.

Is the Society deferring practicing fees?

Any practising lawyer who chooses to may defer payment of the Society fees and LIANS levy until September 2020. Deferral options are available for those paying in full in a lump sum and for those on monthly pre-authorized payment.

If you are paying the full amount owing in a lump sum, the amount invoiced is now automatically due by September 30th, rather than June 30th.

If you opt to pay via pre-authorized payment:

  • You have the option to pay nothing until September 20th, and we will prorate the year’s total amount over the remaining 9 months, payable on the 20th of each month.
  • For example: A member paying NSBS fees of $2,480, full LIANS Levy of $2,119 plus HST for a total of $5,288.85, will pay nine monthly installments of $587.65 from September 2020 to May 2021.
  • If you are not already registered for pre-authorized payment & you wish to take this option, please complete the PAP registration form.
  • To further support members, we are waiving the administration fee for those paying via pre-authorized payment for the 2020/21 year.
  • You must contact us if you wish to defer your PAP payments. If you do not contact us, you will remain on the current PAP schedule, commencing June. Please contact Kate Shewan at kshewan@nsbs.org to defer your fees & LIANS levy.

If you have already opted to defer the April 20th scheduled monthly payment:

  • This payment will be added to the 2020/21 fees and the total amount will be pro-rated over the 9 months starting September 20th.
  • For example: If you deferred the April payment of $428.86 and are paying $5,288.85 for 2020/21, the total of $5,717.71 will be paid in 9 monthly installments of $635.30
  • Unless you notify us otherwise, you are automatically enrolled in the new deferral program if you already deferred your April 20th payment.

Please note: Deferral options are not available for members working for the Provincial Government, the Federal Government or for Nova Scotia Legal Aid.

If I stop practicing because of COVID-19, do I have to pay a 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

What is happening with insurance
deductibles?

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.

Are the Society Offices open?

While our offices are physically closed until further notice, the Society continues to function and conduct its day-to-day business. 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?

Yes.  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.

Can I still access the NSBS Library?

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 toll-free: 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.

Is the Society applying for the Federal Wage Subsidy?

The Society is applying for the 10% federal wage subsidy.

Practice Management

Working Remotely

I am transitioning to work from home.  What should I consider?

If you have not already done so, you may want to or be required to work remotely from home.  There are a number of things to consider so you are able to service your clients and fulfill your professional obligations.  You should have key information accessible and current, such as:

  • client contact information;
  • client files;
  • staff and service provider contact information;
  • bank account information; and
  • passwords for voicemail, computers, and emails.

Consider the creation of systems to:

  • keep client information confidential from family members or others
  • communicate effectively with clients
  • secure and receive deliveries to you office, if necessary
  • continue to delegate to and appropriately supervise staff.

If staff will also be working remotely, you must ensure that staff are supervised appropriately and able to maintain confidentiality.

If you are changing business hours, means of communication, expect delays in communication, or you anticipate other changes to firm operations, communicate this information to clients and staff as soon as practicable. If sending mass emails to clients, ensure client emails are in the BCC line.

What systems and tools should I have to work remotely?

For those new to working remotely or delivering client service from outside of the office, the Law Society of Saskatchewan has a great overview of the essentials in this webinar: An Introduction to Remote Working for Lawyers, hosted by Craig Zawada, Q.C.  Topics include:

  • Basic equipment and software needed
  • Video meeting tools
  • Using the Cloud for file access and email
  • Group collaboration software
  • Digital signing of documents
  • Practicing securely and safely, including avoiding malware, password protection basics, and virtual private networks

The key message to take away is that the systems and tools to help you continue servicing your clients vary from practice to practice. Check out different products to learn which best fits your needs, and give full consideration to your professional obligations. A full list of the products mentioned in the webinar, and links to their websites, can be found on the Law Society of Saskatchewan’s website.

The Society’s Legal Services Support team is interested to learn about any tech tools and products you are using with success during these unprecedented times. Lawyers are reaching out now more than ever for recommendations and user experiences. While the Society can’t recommend specific products, we can connect lawyers to others with product experience. Please email LSS@nsbs.org to share with us your preferred tech solutions and whether you would be prepared to discuss the pros and cons with lawyers looking for guidance.

What video-conferencing platforms are best to use for meetings with clients?

We can’t tell you which is best. That will depend on your professional assessment of your needs and obligations. But some of the platforms lawyers use include:

Regardless of which platform you use, you must consider and mitigate the heightened risk presented by meeting online. ‘Privacy best practices’ include giving consideration to:

  • Access to computer(s) and accounts
  • Password protection
  • Cybersecurity

Both NSBS and LIANS offer resources to help you enhance your online security and privacy.  

If you are planning to change the means by which you communicate with clients, consider communicating this to clients as soon as practicable.

How do I meet my obligation to communicate effectively with clients if I can’t have a face to face meeting?

Alternatives to face-to-face meetings include, video-conferencing, telephone-conference, letter, email, and other electronic messaging.

When selecting how you communicate with your clients, keep in mind (1) the nature of the retainer, (2) the needs and sophistication of the client, and (3) the need for the client to make fully informed decisions and provide instruction.  Keeping in mind these factors, you may need to take extra steps to ensure the client fully understands.  You may also need to communicate your advice and confirm instructions both verbally and in writing.

In communicating with clients at this time, consider the importance of managing client expectations (e.g. communicate realistic response times and means of contact) and putting systems in place to continue serving your clients remotely, where required or possible to do so.

What accessibility considerations should I be aware of when working remotely?

Many lawyers are relying heavily now on emails, phone, or video conferencing in place of face-to-face meetings. While lawyers should always think about the practices and tools they use to address accessibility, remote working means that they might be harder to identify and address.

Lawyers have a duty to communicate effectively with clients (see Section 3.2 in the Code of Professional Conduct and in particular, rule 3.2-1 Quality of Service and rule 3.2-9 Clients with Diminished Capacity). Effective communication 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.

The first step is to be aware that a client or a colleague may need accommodation.  Be careful not to assume their abilities based on what you see or hear on the telephone or video. The most effective way to determine a client’s or a colleague’s needs is to ask them through specific and direct questions.

If you are already aware of client’s or a colleague’s accessibility needs, ask them how, in the current circumstances, you can best accommodate their needs.

Arch Disability Law Centre publishes a series of resources providing tips and guidance for lawyers and paralegals in Ontario addressing accessibility considerations. Be mindful that these are written in the context of Ontario law, though the guidance is generally transferrable:

Technology vendors have resources to help you make full use of available accessibility features in your web and mobile applications. Contact them directly if you have questions:

Ideally, your firm should have a policy on accessibility (addressing both context of employment / HR, and client service). This might be a good time to review and / or develop a policy that works for you and your clients. Good starting points include the Law Society of Ontario’s Guide to Developing a Customer Service Accessibility Policy and Guide to developing a law firm policy regarding accommodation requirements.

If you have questions or need other resources, contact the Society’s Legal Services Support team.

Do I need client’s consent to use electronic communication?

Ideally, your retainer agreement will include an authorization by the client for you to use Internet and cloud-based technology, which may not have perfect security features at all times. This does not absolve you from making reasonable inquiries about, eliminating, and managing confidentiality, privacy, and security risks.  Having client consent up front gives information about risk and allows them to make informed choices, which could help pre-empt client concerns.

Where these issues are not addressed in the retainer, but the practice of law requires the use of videoconferencing systems, it is prudent to obtain this consent from the client in writing. 

We have included sample language below:

Consent to Electronic Communication

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 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.

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, the following are some items that you can consider based on the nature, circumstances, advice, and instruction taking place during the video conference:

  • Confirm the client’s consent to proceed in this manner, either verbally or in writing, depending upon the circumstances. Learn more about retainer language.
  • 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, minutes of content of meeting,
  • After the call and where relevant, document your opinion that the client had capacity, was not under duress, had sufficient understanding, with details of all supporting information if not already documented.
  • Confirm advice, discussions, and/or decisions in writing to the client immediately or shortly after the virtual meeting.
  • Diarize any action items that need to take place in the future. 

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

You need to continue to consult all relevant legislation and case law that governs capacity, and consider whether or not you 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, prepare a detailed memo to file regarding the process relied on and reasons for your conclusion as to the client’s capacity.

In using video conferencing or telephone as the exclusive means of communicating with a client, you must also assess whether there is a risk that the client may be subject to undue influence or duress.  You will need to exercise your judgment in order to determine if you should proceed with the client’s request.

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.  ILA 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. You will need to exercise your judgment in order to determine if you should proceed with the ILA if there are red flags.

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

You need to 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.

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.  In particular, you need to:

  • assess whether your client has capacity.
  • asses risk that the client may be subject to undue influence or duress and consider need to decline where there is risk.
  • confirm your client’s understanding of the documents they are executing
  • provide adequate opportunity for them to ask questions during the video conference.
  • advise the client a court or other agency may not accept documents executed via videoconference
  • advise the client that they should attend personally in your office to re-execute the documents in person once the public health recommendations for isolation have been lifted. 
  • Learn more about best practices for providing legal advice by video conference.

After the videoconference consider doing a contemporaneous memo to file confirming your opinion that the client had capacity, was not under duress, had sufficient understanding, with details of all supporting information if not already documented.  It may also be prudent to do the reporting letter to the client at that time as well which:

  • Confirms your advice to re-execute the document in your presence once public health recommendations allow.
  • Confirms your advice that in spite of following available guidance from the courts and NSBS, it is nevertheless unclear the execution by videoconference will later be accepted by a court or agency, especially if they have not re-executed the documents in person once they have had a chance to do so.
  • Confirms who is responsible (client/lawyer) to initiate the meeting to re-execute the document.

If you are responsible to initiate contact to re-execute, create a system/master list of all such documents so you can do the appropriate follow up.

How do I verify the identity of a client using remote means?

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

Verification of clients is not required for all matters.

Current Requirements:

Because there is no obligation to meet with a client face-to-face to identify the client, 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 verification is provided by an agent pursuant to an agency agreement between you and the agent.

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

If you us 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, consider the following factors to help manage some of the risk:

  • If there are red flags associated with fraud or money laundering, attempt to mitigate risk, and determine if you 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, you must be particularly alert to these red flags to ensure you are not assisting in or being reckless in respect of any illegal activity.
  • Document any red flags, what measures you have taken to mitigate that risk, and you decision on how you proceeded or did not proceed.
  • 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 government 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, you must 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, you 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 I take an affidavit or statutory declaration remotely?

You need to review the requirements set out in the Notaries and Commissioners Act and the Evidence Act.  Also, learn about the specific requirements and guidance from the Courts, the Land Registration Office, the Registry of Joint Stocks, and Articling Documentation.

If you have to commission via video conference, consider the best practices for providing advice via video conference.  In addition, 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

The best practice is for the client to provide their original document to you for execution.   If this is not immediately possible, you can execute a printed electronic (scan or fax) copy and then later the original when it becomes possible.

If you require identification to verify the identity of the affiant, you need to have the affiant show you the front and back of their government issued identification. You need to document the type of government ID produced and that you reviewed and verified the information.  Some authorities, such as the Courts, may require that you keep a copy of the identification.

If you do not have a true original, explain to the authority receiving the affidavit of the circumstances and seek their guidance. Learn more specific requirements and guidance from the Courts, the Land Registration Office, the Registry of Joint Stocks, and Articling Documentation.

Can lawyers cross the NB/NS border for business reasons without the requirement to self-isolate?

You will need to consider first the reasonable means available to you to perform the services without travel, e.g. email, telephone, or video conference.  If there is no reasonable means, we suggest that you confirm with officials that you fall within an exception for essential services under each the NB Emergency Measures Order and the NS Emergency Order of the Medical Officer:

New Brunswick
Emergency Measures Office: 1-800-561-4034;
Debra Locke, Representative for NB Justice on NB EMO: Debra.Locke@gnb.ca

Nova Scotia
Service NS at 1-800-670-4357

Those who are travelling on a regular basis for the same reason may be able to obtain a pass.  Otherwise, each crossing is determined on a case by case basis.  It would be prudent therefore, to call ahead and explain the circumstances to determine eligibility to cross without the need for self isolation.

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

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 ­­­­­­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?

Can Nova Scotia companies, societies, and cooperatives hold virtual meetings?

RJSC has obtained a Direction from the Minister responsible for the Emergency Management Act with regard to all shareholder and member meetings for companies, co-ops, societies, and any other corporation governed by the laws of Nova Scotia to preclude in-person meetings of greater than 5 people, and to enable either a virtual meeting, or a delay of a meeting up to a further 90 days after the state of emergency is lifted.  The direction is retroactive to March 22, 2020, the date the state of emergency was declared.

Courts

Are the Courts open?

The Courts are physically closed to the public.  As of April 22, 2020, the Supreme Court will be accepting non-urgent matters as well as urgent matters.

What types of non-urgent matters is the Supreme Court accepting?

As of April 22, 2020, the Courts will be accepting:

(1) Motions by Correspondence;

(2) Applications where all parties and the judge agree that the matter can be dealt with solely in writing;

(3) Uncontested Divorces (in the General Division); and

(4) Consent Orders

As of May 4, 2020, the Supreme Court is operating telechambers in Halifax and will expand to the districts.  Learn more from the Court Directive.

Cases best suited to Motions by Correspondence, written Applications, or Telechambers include those cases that were ready to proceed in March but were adjourned, ex parte matters, and cases in which all parties consent to the matter being dealt with in the manner proposed.

As of May 7, 2020, the Supreme Court is offering virtual court hearings and settlement conferences for non-urgent matters filed at the Law Court in Halifax that meet the following criteria:

  • Parties are represented by counsel;
  • The matter will take four hours or less;
  • There is no viva voce evidence, including cross-examination; and
  • All parties consent, or a judge otherwise orders.

Learn more for the Court Directive.

How can I file my documents with the Supreme Court?

The Supreme Court requires most matters to be submitted electronically by email or fax.  In certain cases, the Supreme Court requires or will accept paper filing.  The Court has provided direction in relation to filing of documents for urgent matters and for non-urgent matters.  In situations where you are required to file electronically and you are unable to do so, phone the Court

How do I submit documents electronically to the Supreme Courts?

The Court has posted a list of email addresses and fax numbers for all Supreme Court locations in the province.

Will the Supreme Court accept virtual affidavits?

The Court has issued a directive regarding taking of affidavits.

How do I effect personal service for a Supreme Court matter given the requirement of physical distancing?

The Court has issued a directive regarding effecting personal service.

How do I arrange for a judicial settlement conference?

The Supreme Court will now permit the use of Skype as an option for judicial settlement conferences where the judge, counsel, and the parties all agree to proceed virtually. You can contact your respective Prothonotary to request that the matter proceed virtually.

How do I let the Court know that I am willing to participate in a virtual hearing?

You Counsel can contact your respective Prothonotary to request that the matter proceed virtually.  Learn more from the Court Directive

What are the Court’s expectations of me regarding decorum and participation in a virtual hearing or conference?

The Court has set out expectations in the Court Directive, and further best practice guidance covering civility and cooperation with opposing counsel and parties, pre-hearing preparation, issues to discuss with the judge in advance, how to prepare clients and witnesses, document management, and court etiquette.

Is the Probate Court accepting applications?

The Probate Court is now accepting new applications for Grants of Probate and Grants of Administration. Learn more from the Probate Court’s Release, which provides information about the filing of documents, swearing of affidavits by videoconference, effecting personal service by email, conducting hearings by telephone, and finding the contact information for the Registrars of Probate.

What is happening with the Court Liaison Committees?

The Committees met on April 16, 2020 and will continue to meet to discuss ways to increase service to the public while at the same time protect the health and safety of those who work in and appear before the courts.  Learn more about the Court of Appeal, the recent Court of Appeal FAQ’s, and the Supreme Court Liaison Committee meetings. 

What types of matters are being heard at Provincial Court?

Effective June 1, 2020, the Provincial Court and Youth Justice Court will permit some incustody trials and in-custody preliminary inquiries to proceed in-person, where all public health directives can be followed.  Learn more from the Court’s Directive.

Effective June 4, 2020, the Dartmouth Wellness Court will resume telephone hearings only for scheduled matters in the Mental Health Court Program, the Opioid Court Program and the Alcohol Court Program.  Learn more from the Court’s Directive.

How do I schedule a matter for Provincial Court?

To arrange for a pre-trial hearing with a Judge, counsel are asked to email the Judicial Support Supervisor at the courthouse where their matter is scheduled to be heard. Learn more from the Court’s Directive.  

For Wellness Court, Counsel planning to refer a new matter during the pandemic are encouraged to contact Aileen McGinty, the designated Crown for the Dartmouth Wellness Court, to ensure the Crown will consent and then the Court to plan for a screen process.  Learn more from the Court’s Directive.

Is a limitation period considered urgent for the purpose of filing documents with the Supreme Court?

The Supreme Court will accept and process claims filed due to a limitation period.  These claims are considered urgent and essential.  Learn more from the Court’s answers to our questions.

Will statutory limitation period be suspended?

Parliament is considering a legislative proposal that would provide a potential solution to address issues surrounding statutory limitations under federal legislation during the COVID-19 pandemic.  Learn more about the proposal.

We are also connecting with the provincial government regarding the suspension of limitations periods.    We will provide updated information as soon as it is available.

Have the Courts suspended any filing deadlines for court matters?

The Courts have suspended some deadlines that are within their control. Please refer to the complete details of Court directions to understand what and how deadlines have been suspended:

Trust Accounts & Banking

Can I operate a trust account using electronic banking?

Yes. Trust accounts can be operated through electronic banking.

Are client trust accounts at increased risk for theft?

Yes.  Changes of process, remote working, and reduction of staff create increased risk, each of which require a unique response. Furthermore, those who are criminally minded will try to take advantage of the situation. It is important to review and discuss Anti-Money Laundering Rules with staff. Please review Client ID Documents & Resources.

What should I be thinking about to control risk of theft?

Additional controls and greater staff supervision and oversight may be necessary 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.   
  • A pdf copy of the client’s trust ledger card (history of client transactions) could 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.

How do I create “documents” required by the Regulations?

You 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.

What if I am unable to comply with Regulatory Requirements?

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

How do I make Electronic Withdrawals?

You can use the Electronic Transfer Authorization Form to authorize the withdrawal/transfer of trust funds.  You cannot 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.

Can I transfer funds from my 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. 

Can I transfer funds from my 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, you can do this electronically; however, you need to need to ensure that when setting up the online banking, a non-member staff is not able 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 must restrict online banking access to “view only” for staff.  You need get from your bank documentation confirming that staff are restricted to “view only”. You can 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 a staff member’s transaction processing screen – the staff may not have the proper restrictions. Confirm with your bank that any attempts to process a transaction will be denied.

How do I comply with the requirement to “deposit without delay”?

Electronic banking allows for deposit without delay.  You need to be aware of clearing periods on funds that have been deposited electronically to ensure you do not act on funds before the funds have cleared. Every law firm needs to discuss clearance periods with their banks.

Financial and Business Concerns

What assistance might be available to lawyers and law firms?

Lawyers and law firms can 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 and a table summary of available federal programs.

The provincial government have also various supports for business.  Learn more about provincial supports for business.

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.

Also, the Federal Program provides for credit and loans for businesses who can demonstrate a loss of revenue.

If your firm has less than $20,000 in payroll, Nova Scotia is providing funding small businesses affected by COVID-19 by providing a loan, a grant, and a business continuity voucher for advice and support.

What advice do you have for the business of law firms?

We consult regularly with our counterparts across Canada.  We recommend the guidance provided by the Law Society of Alberta for firms who may be suffering a reduction of revenue at this time.

Who can I talk to if I need some practical advice about the business of law?

Through the Lawyers’ Assistance Program, you can contact Peer Volunteers who may be able to provide guidance and advice regarding firm management and financial considerations during this time of employment upheaval.  Learn more about Peer Volunteers

Continuing Professional Development

With in-person meetings and conferences being cancelled, will the Society be relaxing the 12 hours CPD requirement?

The reporting year for CPD runs from June 1 to May 31st and as such the cancellation of conferences could have an impact on lawyer’s ability to attend in person conferences both this reporting year and next reporting year.  We encourage lawyers to look at on-line learning opportunities to replace sessions that had anticipated being on their CPD Plan for this year or next year

Where can I find online resources?

Lawyers can visit our Equity Portal for online learning relating to diversity and cultural competency.  Lawyers can learn practice management skills through NSBS resources and law office management standards. Substantive learning for certain practice types can be achieved through a review of the Standards of Practice for real esate, family, and criminal law. 

We will also be providing remote education with regard to changes to the client identification regulations.  Many providers post their learning opportunities on our Events page.  Learn more about affordable and accessible learning opportunities on our Professional Development .

Where can I find online resources?

Lawyers can visit our Equity Portal for online learning relating to diversity and cultural competency.  Lawyers can learn practice management skills through NSBS resources and law office management standards. Substantive learning for certain practice types can be achieved through a review of the Standards of Practice for real esate, family, and criminal law. 

We will also be providing remote education with regard to changes to the client identification regulations.  Many providers post their learning opportunities on our Events page.  Learn more about affordable and accessible learning opportunities.

What should I do if I have concerns about being able to meet my CPD requirements?

If you are having difficulty developing or meeting your CPD plan, you can contact the Society’s Director of Education and Credentials, Jackie Mullenger to discuss your options.

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.   

In communicating with clients at this time, consider the importance of managing client expectations (e.g. communicate realistic response times and means of contact) and putting systems in place to continue serving your clients remotely, where required or possible to do so.

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).

Obligations of lawyers who have 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 lawyer 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 lawyer must not disclose more information about those individuals than is required. In particular, a lawyer 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, you should provide notice of the disclosure to any affected clients within a reasonable time.

What are my record-keeping requirements?

If confidential client information is disclosed, you 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 can I contact if I have to disclose client information or if I have more questions?

If you think disclosure may be warranted, you should, if you are 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

Articling & Bar Admissions

Impact of COVID-19 on Current Articling

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

Yes. During these exceptional circumstances, we have changed the articling term to a minimum of 8 months and a maximum of 12 months for any articled clerk enrolled after June 1, 2019.

If an articled clerk is continuing to work remotely, how does this impact supervision?

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 product, etc. Most importantly, there should be a plan in place between the articled clerk and principal about how to communicate should the articled clerk need help.   Principals should also consider arranging another active lawyer to be a back up to whom the articled clerk can reach out for assistance in the event a principal becomes ill or is not available.

What is happening with the June Call to the Bar?

The June call will be a virtual call to the bar with details to come.

Impact of COVID-19 on 2020/21 Articling

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

Yes. During these exceptional circumstances, we have changed the articling term to a minimum of 8 months and a maximum of 12 months for any articled clerk enrolled after June 1 2019.

When can recent graduates register for CPLED?

New graduates can now register even if they do not have a confirmed articled position.  Council has approved a change in the regulations that removes the requirement that new graduates have a confirmed articling position in order to be able to register and begin online learning.  

Clersk must register for the PREP Course prior to Friday June 26, 2020 and begin the Foundation Module no later than Tuesday, June 30, 2020Learn more about key dates for the PREP course.

What does an articled clerk need to do to be on track for bar admission in June of 2021?

The articled clerk must complete at least 8 months of articles under a principal’s supervision.

The articled clerk must register for the PREP Course prior to Friday June 26, 2020 and begin the Foundation Module no later than Tuesday, June 30, 2020.  They may register and begin the PREP course even if their articling start date has been delayed.

If you have any further questions, you may contact Jackie Mullenger at jmullenger@nsbs.org.

Learn more about key dates for the PREP course.  

If an articled clerk is able to commence articles and work remotely, how does this impact supervision?

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 product, etc.  Most importantly, there should be a plan in place between the articled clerk and principal about how to communicate should the articled clerk need help.   Principals should also consider arranging another active lawyer to be a back up to whom the articled clerk can reach out for assistance in the event a principal becomes ill or is not available.

Completing Documents for Articling

Will the Society accept Articling Applications after April 1, 2020?

Yes. We accept applications for articles any time; however, it does take us a few days to process the documents before the articled clerk can start working.

Will the Society accept electronic signatures on forms?

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

Will the Society accept electronic signatures on Articling Agreements?

Yes. We will accept Articling Agreements by email with an electronic signature.  It would be best if the 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.

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.

Health and Mental Wellness

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:

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.

Review the Homewood Health Poster on how to stay motivated and productive while working from home