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The Law Society has developed the following guidance for lawyers to support them in the delivery of legal services in the COVID-19 pandemic. This is an unprecedented situation, and flexibility and diligence is required to ensure continuity of essential legal services without risk to public health. Public health agencies have made numerous recommendations to reduce the risk of transmission, including social distancing and self-isolation. Please continue to monitor ongoing news releases to ensure you have current information.
For lawyers, many legislative requirements and risk management measures require in-person contact with clients and others. The Law Society is not able to relax the rules which require in-person execution of testamentary documents, transfers of title, and sworn affidavits because these are rules created by statute. This means that only the Government can change these rules via statutory amendment. The Law Society will be speaking to Government about this in the hopes of getting ‘urgent’ statutory amendments made. We will keep the profession updated as that conversation evolves. In the meantime, the Law Society is looking for ways it can assist lawyers during this health crisis. An example of this is that the Law Society has temporarily permitting lawyers to complete client verification using non-face-to-face methods. These issues are addressed in more detail below.
We will continue to update this FAQ as the situation continues to evolve and as the Law Society makes more decisions about the short and long term impacts of COVID-19 on our work. Check back frequently for updates.
*Last updated April 2, 2020 at 8:10 a.m.
Alberta lawyers have been asking the following questions:
Can a lawyer use a virtual means of identifying or verifying the identity of a client, such as video conferencing or telephone?
The client identification and verification requirements in Rules 118.1-118.11 continue to apply. However, the Law Society understands that members may face challenges in meeting their obligations. While we continue to expect that lawyers will endeavour to comply with the rules, we recognize that it may be challenging to verify a client’s identity where the lawyer and the client are unable to meet in person.
Client Identification involves obtaining certain basic information about the client and any third party directing or instructing the client, such as a name and address. This information is required whenever a lawyer is 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.
Client Verification involves reviewing an original identifying document from an independent source, to confirm the identity of clients and third parties. Lawyers are only required to verify the identity of clients and third parties if they are involved in a funds transfer activity, where the lawyer engages in or instructs the payment, receipt or transfer of funds, and an exemption does not apply.
The rules permit lawyers to verify a client’s identity by two methods that do not require meeting face-to-face with the client – the dual process method or using information in a client’s credit file.
In addition, lawyers should consider whether they may be able to rely upon the previous verification by another person, as permitted under the rules, or verification by an agent.
Until further notice, the Law Society will not require lawyers to verify the identity of a client by 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 temporarily. This is an interim measure and should not be continued after the current health crisis resolves.
If lawyers choose to verify clients’ identity via video conference, they must attempt to manage some of the risks associated with this practice, as outlined below:
- Ensure that the government-issued identification is valid and current;
- Compare the image in the government-issued identification with the client to be reasonably satisfied that it is the same person;
- Record the method used to verify the client’s identification and the applicable date;
- Treat the transaction as a high risk transaction and continue to monitor the business relationship as a high risk transaction; and
- Document the efforts made to verify the client’s identity in accordance with the existing rules, and the reasons why the lawyer was unable to verify the client’s identity in accordance with the existing rules.
If a transaction presents too much of a risk, lawyers should decline to act.
Lawyers are reminded that opportunities for fraud and theft can proliferate in the presence of unusual events such as office closures and economic instability. Lawyers should monitor internal controls to ensure the protection of trust funds. Click here for proactive measures and tips you can take now to reduce the risk of theft in your practice.
Lawyers should also remember that they do not need to verify the identity of clients for all matters. Keep in mind the distinction between identifying and verifying the identity of a client. If only client identification is required, lawyers are able to comply with their professional obligations without meeting in-person or via video conference.
Managing the Risk of Verification via Video Conference
Where a lawyer uses a video conference to conduct face-to-face verification of client identity, rather than being in the physical presence of the client or by obtaining the attestation of an agent, the following factors should be considered to help manage 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.
- To review these red flags, see the Law Society’s risk advisories
- 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 be particularly vigilant for red flags of fraud or other illegal activities.
- Where virtual verification methods are chosen, lawyers must be alert to possible red flags to ensure they are not assisting any illegal activity.
- Lawyers should document any red flags, any measures they have taken to mitigate risk, and how they arrived at their decision to proceed.
- If many red flags are present, lawyers must 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 guidance document on the Law Society’s website.
Legal professionals should be aware that the Alberta government has taken measures to ensure the health and safety of their employees and the public. This includes extending the validity of identification documents including driver’s licences, that have expired on or after March 1, 2020, so that in-person visits to renewal facilities can be avoided. Albertans who have birthdays from March 17 through May 14 and whose cards expire this year, now have until May 15, 2020 to renew.
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 legal professional 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, in this case the provincial or territorial government. Alternatively, the legal professional may wish to consider using another method to verify the identity of the person.
Information on the extended validity period for Alberta drivers licenses is available here.
Commissioning and notarizing documents is not regulated by the Law Society. Legislation governing evidence, notaries and commissioners, testamentary instruments and land title transfers do not permit the use of documents that are executed or sworn remotely. Affidavits sworn via Skype or video may not be accepted by the Land Titles Office or the Courts. Updates:
Lawyers who act as commissioners or notaries should be in the physical presence of the deponent to administer the oath.
The Law Society does not regulate how documents are executed. Lawyers should review the Electronic Transactions Act Section 7 of the Act stipulates that it does not apply to testamentary documents and documents of title.
The Land Titles Office requires originally executed transfers of land and affidavits.
How can lawyers communicate with clients while using social distancing to reduce the risk of transmission?
Public health officials recommend many measures, including social distancing. Lawyers should consider conducting routine meetings with clients by phone or using video-conferencing options such as Zoom, Skype, FaceTime and other platforms. Lawyers must also be aware that some client matters require an in-person meeting. If unable or unwilling to meet in person, lawyers and clients need to be aware of both their legal risks and their health-related risks.
Lawyers should be mindful of their obligations to communicate effectively with clients, even when selecting an alternative means of communication:
- 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.
- lawyers must communicate with the client at all relevant stages of a matter, and answer reasonable client requests in a timely and effective manner.
If a firm chooses to change its means of client communication, it should notify clients as soon as practicable.
Rule 119.21(1), states that “all withdrawals and transfers from a trust account must be signed by a lawyer of the law firm, unless otherwise authorized by the Executive Director”. In practical terms this requirement becomes particularly relevant to individuals in a sole practitioner or small firm setting. Typically, larger firms have segregation of duties where a lawyer authorizes a transaction via paper or electronic methods, with a separate accounting department/individuals delegated to sign cheques.
- An email confirmation, other electronic authorization or transfer document signed in compliance with Rule 119.22(2) by the lawyer can be accepted to approve the trust transaction (withdrawal or transfer).
- If a firm does not have electronic cheque printing capabilities or unable to place an electronic signature when printing a cheque then they will have to resort to the conventional paper cheque that requires a “wet signature” for it to be honored at the bank.
- The cheque has to be signed by a lawyer within the law firm.
- If a trust cheque requires signature during a time where there is no active lawyer of a law firm available an alternate signatory must be approved by the Law Society.
Requests to have an alternate signatory approved should be submitted to firstname.lastname@example.org prior to the absence and must include the following information:
- The time period needed
- The full name of the proposed alternate signatory
- Reason for the request
Firms must carry fidelity insurance for a non-lawyer to sign a trust cheque as theft by staff is not covered under Part B insurance. Rule 119.22(1)(f) indicates that trust cheques must be fully completed as to the payee and amount before being signed, therefore, it is never acceptable to pre-sign a trust cheque.
If lawyers have disaster or business continuity plans in place for their workplaces, they should review these now and consider to what extent the plans should be implemented at this time.
If lawyers do not have plans in place, or existing plans do not adequately address the concerns raised by COVID-19, they should review the below resources and consider the recommended planning steps:
- Law Society of Alberta: Disaster planning and recovery resources
- Canadian Bar Association: Pandemics in the Workplace: A Resource for Lawyers
- LawPRO®: Managing Practice Interruptions
- American Bar Association: A Lawyer’s Guide to Disaster Planning
Other specific practice management considerations for lawyers and firms preparing for practice interruptions include:
Working from Home
If lawyers or law firm staff choose to work remotely from home, 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 and staff should also consider how they will:
- keep client information confidential from family members or others
- communicate with clients and other firm members
- secure and receive deliveries to their offices
- continue to delegate to, and appropriately supervise, other staff.
Consider these practices and tips if working from home:
- Protect your passwords
- Lock your computer if leaving it unattended
- Work in a private area, particularly if you are video-conferencing or dialing into meetings
- Safeguard physical records and documents – ensure that the information is only visible to you and emphasize to others that no one else is permitted to look at the documents. Lock them away if necessary.
- Avoiding downloading firm or client documents onto home computers and devices where they can be accessed by others.
- be alert to cyber-security hazards and phishing, particularly in a disrupted environment. Home computer systems may also not have the same security levels as those in the office. If possible, it is best for staff to work remotely using a work-issued laptop with updated security. If not, they should ensure they have updated security and are using strong passwords.
For more information, consult other resources such as these webinars: A Legal Professional’s Guide to Securing Your Home Network and Prioritizing in a Pandemic for Law Firms.
Illness or Absence of Lawyers or Staff
Lawyers and staff should consider what tasks are affected if they are unable to attend the office, and ensure that coverage is provided so that clients are not prejudiced. Consult the firm’s diary system to ensure filing deadlines can be met and other scheduled events may be managed or rescheduled.
Firms should engage in timely communication with clients and staff if changing their business hours, using alternative means of communication, anticipating delays in communication, or changing firm operations. Consider using email updates, notices on websites, or other means, based on the needs of clients and staff.
Communication with employees is key. There is no ‘business as usual’ in the current environment. Firms should reassure their professional and support staff of measures they are taking to provide for their safety and to maintain business continuity.
Firms should also be alert to the well-being of their staff. Many will feel personally isolated, or may be facing financial stress. Provide reassurance and set up a regular schedule to keep in touch by video or phone, not just through email.
For questions about professional liability in the context of COVID-19, lawyers should contact the Alberta Lawyers Indemnity Association.
Lawyers should also contact their insurance providers to obtain information about their commercial general liability and business interruption coverage, to determine the scope of their coverage and any possible exclusions.
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?
First consider whether matters need to be addressed on an urgent basis or whether they can be delayed. Is an in-person meeting necessary? Can a closing be delayed?
In some cases, face-to-face meetings with clients may be required if the legal services are considered to be an essential service. This might be a difficult decision for some lawyers, staff and clients to make. It is otherwise reasonable to limit direct contact with clients up to the point where documents must be personally executed, witnessed or commissioned, or personal attendance is necessary.
In the case of wills, consider whether it is possible to assist the client to write a holographic will over the phone or by video, as one example. Also consider whether it is possible to engage health care professionals or staff at a residential facility to act as witnesses, if they are already working in the setting where the client is located and where the document will be executed. If this is a possibility, the lawyer can review the will by video-conference with the client, and conduct the assessment of the testator’s capacity, while the staff at the facility can witness the physical document.
In circumstances where in-person attendance is an essential service, and may be required for the execution of certain documents or for other purposes, firms should engage in a number of best practices to maintain the safety of their lawyers, staff and clients. Follow all Health Canada recommendations to limit exposure to and the spread of the virus. This includes hand hygiene, respiratory etiquette, environmental cleaning and social distancing.
Some suggestions to prevent or minimize the risk of infection that might arise from meeting clients include the following:
- Before arranging any meetings, ask clients and other visitors about symptoms and possible exposure to COVID-19.
- Place signs at the office entrance, listing the COVID-19 symptoms and asking those with symptoms not to enter.
- Discourage those who are sick from visiting the office. If they must leave their homes, they should wear masks.
- Do not allow people to linger in the firm’s lobby. Consider removing chairs from the lobby.
- Meeting in-person does not necessarily mean being in the same room. If you can see the client in-person while they are signing, you do not have to be in the same room with them. Clients might execute a document in their cars while the lawyer stands nearby, as one example.
- Identify a designated board room where all firm meetings with clients will take place. This will make it easier to disinfect the surfaces of the table and chairs before and after each client meeting.
- Have sanitizing gel on hand in the boardroom, or a wash station nearby, and ensure all participants clean their hands before and after the meeting.
- Consider asking clients to bring their own pens.
- Keep a distance of least two metres from the client during the meeting and keep the meeting as brief as possible. Do not shake hands.
- Have the documents ready at the opposite end of the table for the client to review and sign. The lawyer should have a separate set of copies, to allow them to explain the documents to the client and to answer questions. If possible, try to have these discussions in advance of the meeting.
- Minimize the number of people in the office who handle the executed documents and ensure they wash their hands after doing so. Gloves are another alternative.
Albertans should also refer to the following resources:
- Government of Alberta: COVID-19 Info for Albertans
- Government of Canada: Coronavirus Disease: Being Prepared
- Government of Canada: Coronavirus Disease (COVID-19): Prevention and Risks
Some legal services may be offered by video conferencing. When able to use 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.
- Ensure 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 the client sends a copy of the document in advance of the online meeting and that, when it is produced, the entire document is visible and legible.
- Determine how to provide the client with copies of documents to be discussed or which may be executed remotely.
- Confirm the client’s understanding about the services they are receiving and provide adequate opportunity for them to ask questions during the video conference.
- Maintain detailed records including the date, start and end time, method of communication, identity of all present, and the details of the discussion.
As the events surrounding COVID-19 continue to unfold, we are carefully monitoring the latest updates and recommendations from the Federal and Provincial governments, Alberta Health Services and the City of Calgary.
Following the direction of health experts, the Law Society of Alberta, Alberta Lawyers Indemnity Association (ALIA) and Canadian Centre for Professional Legal Education (CPLED) have decided to extend our office closure until April 30, 2020. We will re-evaluate the office closure at that point as further information is provided from government and health agencies as well as the City of Calgary.
During this time our staff will continue to work remotely to ensure that we address any urgent needs. We ask that you do not send any couriers to our building while we are closed, as staff will not be there to receive packages. If you have any questions regarding sending us mail, please contact Customer Service.
While the Law Society, ALIA and CPLED offices remained closed, our Customer Service team is working diligently to respond to all inquiries. At this time, our general contact line (403.229.4700, or toll-free at 1.800.661.9003) is voicemail-only, as we transition to a remote system to field phone calls.
To help lawyers and members of the public, we have developed an online form that will contact members of the Customer Service team directly, and where they can respond to you via email or telephone as required. If you have questions regarding bill payments, services offered to members or general inquiries of any kind, please contact Customer Service. For other inquiries or to contact specific departments, visit our Contact Us page.
The Law Society continues to accept information about concerns and complaints about lawyers. Law Society staff are working remotely to ensure that we continue to prioritize and address concerns. Our ability to speak by telephone is limited at this time, and the best way to reach us is by email or through our website. Our staff continue to review concerns and complaints as efficiently as possible, however there may be a delay in responding to communications and to the review process.
Articling students can work remotely as long as they are still being supervised. Supervision of an articling student who is working remotely could take the form of daily telephone calls to check-in, videoconferencing, increased email communication, use of SharePoint sites to review work product, etc. There should be a plan between the student and principal about how to communicate should the student need help and they are not in the office. Consider having backup contact information for another active lawyer that a student can reach out to for assistance in the event a principal becomes ill or is not available. As long as supervision occurs (remote or otherwise,) the student would still be considered to be articling.
For those sent home who will not be supervised, this could be a break in the articling term – a leave of absence. You will need to advise the Law Society if you have a break in your articles. Students will still be expected to meet the requirements of 12 months of articling plus complete the PREP Program. If a principal gives a student 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.
When I apply to become a Student-at-Law or enrol as a Law Society member, how do I submit proof of identification without available notaries?
During the Student application process, you will be asked for proof of identification.
As a result of the COVID-19 mandate for social distancing, the Law Society has removed the obligation to provide a notarized copy of proof of identification during student-at-law and enrolment applications.
Please provide a government-issued photo ID in the form of a copy of a birth certificate, passport or driver’s licence on which your full legal name appears. Please submit this document through the Lawyer Portal.