COVID-19 FAQs for Lawyers

Be Prepared

With the current government requirements and the spread, this is likely to happen to firms who have imminent transactions. Be prepared for it.

“Harden” your operations to prevent a positive test from creating last-minute chaos. One good way to do so is to return to remote closings during this wave.

There are now different ways to transfer money that don’t rely on a physical cheque. Review our advice on EFTs, bank drafts and wires and this additional resource.

If you do have to meet your clients, use hand sanitizer, masks, and ample social distancing.

To limit the impact of exposure in the office, rotate lawyers and staff so that some work from home when others are in the office and vice versa.  

Your office shuts down

Switch, as much as possible, to remote closings.

Don’t be afraid to phone a lawyer friend for help. This might happen if, for example, you have to self-isolate and cannot check client ID.

Be prepared to accommodate others where possible. It won’t always be possible, if there is a chain of transactions in particular. Dr Strang and Premier Houston have asked us all to “slow down.”

There was no change in the law to expressly permit remote signatures and witnessing. The practices on remote execution which were developed during the early days of COVID-19 were born of and founded on necessity. There was no way to tell if a court would accept such a will.   

The guidance we provided at that time suggested re-executing any such wills in person when able. It remains unclear whether the courts will accept a remotely executed will. There is far less necessity for remote execution and witnessing, especially as we enter phase 5.    

If you have not done so already, at the appropriate time, we strongly recommend that you arrange for the re-execution of any wills where the testator and two witnesses were not all in the same room together at the same time and able to witness in the traditional way.   

For clarity, we recommend against using remote execution and in favour of the testator and witnesses being in the same place at the same time.   

You may use appropriate health protections like glass or plastic screens, masks, sanitizer, etc. that still allow everyone to see the others sign and for you to be able to determine there is no undue influence or capacity issue.  

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 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:  

Update (October 20, 2023) : During COVID, the use of client ID verification via videoconference (eg Zoom, Teams) was permitted out of necessity. The use of videoconference alone for client ID verification purposes is no longer permitted. Please refer to Regulation 4.13 Client Identification and the Federation of Law Societies of Canada Guidance to the Legal Profession for up-to-date client ID verification information.

If you use video conference to conduct face-to-face verification of client identity instead of being in the physical presence of the client or using 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.  

• Verify early, not when under pressure to close a transaction. Leave time in case you need to get an agent. Do not feel pressured to accept something.  
• Documents are hard to read if held up to a camera. If you must use remote verification, watch the client scan or photograph their ID, then send it to you immediately. Compare what you can see on video.  

What truly matters is what an authority who must rely on the document will determine at a later date (a court, the Registrar General, etc.) Although neither the Notaries and Commissioners Act and the Evidence Act specifically provide for, nor preclude, the virtual taking of oaths, the lawyer who does so is taking a risk that it will not be accepted.  If circumstances require you to take an affidavit remotely, the jurat of an affidavit is an important record and should accurately reflect the circumstances of the swearing/affirming. The jurat should indicate that the oath was taken remotely, the date, the method (by videoconference), and the location of you and the affiant.  Also, contact the court or the other authority receiving the affidavit to explain why the affidavit has been taken remotely and get directions about the next steps if needed.  

On September 13, 2021, the Registrar General issued an update to her March 18, 2020, directive and will continue to accept documents executed remotely (i.e., one “wet” signature).  

This updated directive is “to allow for consultation on legislative or regulatory changes which may be required to make the interpretation permanent. The directive will continue until such time as it is expressly revoked by this office (which will coincide with any necessary regulatory or legislative changes). For greater clarity, this directive will continue in effect beyond the period in which the Province of Nova Scotia is asking Nova Scotians to practice social distancing.”  

At the beginning of the pandemic, the Registry of Joint Stock Companies permitted scanned copies of originally signed documents to be submitted via email in situations where it ordinarily required original documents affixed with original signatures for RJSC filing.  Since that time, RJSC has launched an online system, RJSC Connect, which allows signed scanned documents to be uploaded directly into the system.   

RJSC has obtained a Direction from the Minister responsible for the Emergency Management Act regarding 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 that are contrary to health guidelines 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.  

The State of Emergency is in effect until at least November 28, 2021.  

Each individual Court issues directives about closures and openings and how they will operate during the various stages of the impact of COVID-19.  

When the Court issues a new FAQ or directive, the Society posts the notice to our website at https://nsbs.org/news-categories/covid-19/  We also share the latest notices on our Twitter feed at https://twitter.com/NSBS.   

To receive the latest notices from the NS Courts, you can also ask to be added to the Court’s email list by contacting its Communications Director.  

The information is found both in the directives which are listed by each Court, with the most recent directive at the top. Other information is found in the FAQs on the right panel of the Court’s web page. The Court also has subject specific portals for various types of stakeholders.   

Until a particular Court issues a consolidated directive, you may need to review prior directives to find operative information.   

Some of the court directives link to contact information but takes you back to the main web page. The contact information is in the yellow box directly above the directives

If you continue to work remotely, consider your ability 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.  

Continue using systems to:  

• keep client information confidential from family members or others  
• communicate effectively with clients  

• secure and receive deliveries to your 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.  

Remember to keep your clients informed about business hours, means of communication, expect delays in communication, or other changes to firm operations.  Communicate this information to clients and staff as soon as possible. If sending mass emails to clients, ensure client emails are in the BCC line

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 have a face-to-face meeting or 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, 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.

Many lawyers are now relying heavily 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:  

• Guide – Tips for Lawyers and Paralegals on Providing Accessible Legal Services to Persons with Disabilities in Ontario – this Guide discusses accommodating a range of specific accessibility issues (e.g., limited vision, hearing, mobility, learning)  
• Fact sheet – Accommodating clients who need extra time  

• Fact Sheet – Accommodating clients requiring a support person  

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:  

• Apple – Accessibility  
• Microsoft (general)  

• Microsoft Windows  
• Microsoft – What accessibility features are available for Skype?  
• Zoom – Accessibility features  
• IBM  

Ideally, your firm should have a policy on accessibility (addressing both context of employment / HR, and client service). This might be a suitable 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.  

Questions or seeking additional resources? Connect with the Society’s Legal Services Support.  

Ideally, your retainer agreement will include an authorization by the client for you to use internet and cloud-based technology, which may not have adequate t security features.  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.    

Sample consent to electronic communication language:   

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:  

1. Use of electronic communications to discuss sensitive information can increase the risk of such information being disclosed to third parties.  

2. Online services may have a legal right to inspect and keep electronic communications that pass through their system.  

3. Electronic communications can introduce malware into a computer system, and potentially damage or disrupt the computer, networks, and security settings.   

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

Consider the following (based on the nature, circumstances, advice, and instruction taking place during the video conference) when video conferencing for the provision of legal advice or services:   

• 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.  
• Check your audio and video feeds to ensure they 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 of 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 the 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.  
• Record any action items that need to take place in the future. 

Capacity is best assessed in a face-to-face meeting. If you were relying on COVID-19 based necessity to do such assessments, we note that any justification based on necessity is likely no longer valid.  

For meetings you should consider the Nova Scotia government’s safety guidelines. 

You need to continue to consult all relevant legislation and case law that governs capacity and consider whether you can 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.  

ILAs are best provided and explained in a face-to-face meeting.  Therefore, if you are able to meet with your client, you should do so while considering safety guidelines from the government of Nova Scotia.    

If using video conferencing, the issue of independent legal advice is complicated, especially if a signed waiver is required.  ILA must be clearly explained.  

If you are providing the ILA, you need to take extra precautions 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 to determine if you should proceed remotely with the ILA if there are red flags.

Yes. Trust accounts can be operated through electronic banking.  Review the FAQ’s on the Society’s trust accounts resource page.