May 27, 2020Back to Latest

As Alberta moves through its relaunch strategy, many lawyers will relish the prospect of moving forward and for many, it may be an overwhelming time. But lawyers should not let their guard down.

Even following the relaunch, Albertans may be working remotely more than they traditionally have. Ongoing social and physical distancing measures may continue to affect lawyers and their clients, and many Albertans will continue to face financial pressures. Fraudsters may prey on new confusion and fears that arise from the reopening of Alberta, as well as the ongoing threat of further spread of the virus and continued economic turmoil.

With courts reopening and society surveying the changes caused by the pandemic, new kinds of practice issues may arise. Some lawyers may be busier, some may be slower, but all lawyers will face a new reality in their own practices. Lawyers should recognize that the anticipation of the relaunch may divert attention away from practice issues and potential frauds, at the very time lawyers need to be focused and vigilant.

Loss prevention is not always top of mind for lawyers, especially during a pandemic. Lawyers are struggling to maintain their practices and serve their clients. Adding to the complexity of continuing to practise law, are challenges associated with working from home, remotely supervising students and staff, and dealing with the current economic fallout. Lawyers are required to track the rapid evolution of rules around swearing affidavits and witnessing documents by video conferencing, as well as evolving court processes and deadlines. If that was not enough, many lawyers are home schooling their children and taking care of vulnerable loved ones.

It is easy to forget about the many risks that come with practising law when faced with competing priorities. Now more than ever, lawyers need to be mindful that those risks increase in difficult circumstances. Fraud attempts tend to increase during a crisis and lawyers are often the targets. A rising economy will often hide fraudulent behaviour. It will also hide poor economic decisions made by clients. Conversely, a diving economy will reveal both, which is what happened in the aftermath of the 2008 stock market crash and the subsequent recession. Even if the client’s loss was not the result of negligence on the part of the lawyer, it is not uncommon for a client to blame their lawyer. Being a defendant in a lawsuit is something all lawyers could do without.

Considering the information above, lawyers should be especially diligent in following all loss prevention recommendations. Some suggested recommendations to mitigate against possible future negligence claims include:

1. Follow all of the Law Society of Alberta FAQs and recommendations for remotely swearing affidavits and remotely verifying client identification
2. Regularly visit the websites for Alberta Provincial Court, Court of Queen’s Bench and Court of Appeal and review their current COVID-19 updates;
3. Immediately read ALIAlerts and visit ALIA’s website for recent fraud updates;
4. Be aware of the red flags for fraud;
5. Regularly check in with junior lawyers, students and legal support staff to properly oversee their work;
6. Document, document, document. Lawyer negligence claims can come down to the lawyer’s word against the client’s word. In these situations, it can be difficult to defend the lawyer if the lawyer has not maintained good records of the steps taken on the file. Documenting every client interaction and communication, including recommendations and instructions, is key;
7. Take extra precaution in ensuring that all communication with staff and other lawyers is clear, well-documented and easily accessible;
8. Go through every file in the lawyer’s office, keeping in mind the various Ministerial Orders that have been issued in the recent weeks, and re-diarize those files if necessary. There have been changes to limitation periods in a large number of statutes and regulations. Many of the Ministerial Orders have been included in Law Society eBulletins over the recent weeks;
9. Continue to follow all Trust Safety recommendations regarding trust accounts. Even if a lawyer’s trust account is not active, lawyers must monitor the account for any unusual activity;
10. Ensure that computers being used for all client work, including computers being used at home, have the most up-to-date security software, including antivirus software, spyware filters, email filters and firewall programs. Regularly schedule scans to search for and remove malware. Maintain and test back-ups of your data;
11. Be vigilant against cyber and social engineering attacks. You should advise clients that you will not change payment instructions via email but will call them at the phone number contained in your file. They should follow a similar protocol for providing payment instructions to you. For further recommendations, review ALIAlert: COVID-19 Pandemic Increases Cybersecurity and Fraud Risks.

If lawyers have any questions about practice issues during the pandemic, the Law Society of Alberta’s Practice Advisors continue to be available and are working remotely. ALIA Claims Counsel are also working remotely. To report a claim or potential claim please contact ALIA. ALIA also is asking Alberta lawyers to continue reporting attempted frauds and scams to ALIAlert, to facilitate warnings to the profession of fraudulent activities.