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The Law Society has developed the following guidance for lawyers to support them in the delivery of remote legal services.
Frequently Asked Questions
Can a lawyer use a virtual means of identifying or verifying the identity of a client, such as video conferencing or telephone?
Alberta lawyers may complete virtual verification of identity with the use any of the technology products dealing with client identification and verification that have been approved by the Innovation Sandbox to comply with their obligations under the Rules of the Law Society of Alberta. The client identification and verification requirements in Rules 119.45–119.58 continue to apply. However, until further notice, the Law Society will permit the use of virtual means of verifying the client with the government-issued photo identification method.
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. Nothing requires that it be completed in-person.
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 set out in Rule 119.47(6)(iii).
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 a client’s identity in the client’s physical presence. Alternative means of verification, such as face-to-face verification via video conference, will be permitted temporarily.
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;
- Obtain a copy of the client’s identification prior to the video conference, through a scan sent by email or text;
- Compare the image in the government-issued identification with the client while on the video conference to be reasonably satisfied that it is the same person, and, if possible, take a screen shot of the client with their identification;
- 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.
Lawyers should decline to act in transactions that present too much risk.
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. Learn more about proactive measures and tips to reduce the risk of theft.
Lawyers are reminded that they do not need to verify the identity of clients for all matters, and that they should keep in mind the distinction between identifying and verifying the client’s identity. If only client identification is required, lawyers can meet their professional obligations without meeting in-person or via video conference.
The Law Society verification requirements are different from the requirements of lenders. Lawyers should consult the lender’s instructions when dealing with clients who are borrowing money.
Managing the Risk of Verification via Video Conference
When 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 virtual verification 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.
Where a driver’s license or passport is used to verify client identity, the Law Society requires that the documentation be valid, original and current. Information on renewing Alberta drivers’ licenses is available here and information on renewing a Canada passport is available here.
When verifying client identity using these types of identification documents, the lawyer must determine that the document is government-issued photo ID. Alternatively, the lawyer may want to consider using another method to verify the identity of the person.
Commissioning and notarizing documents is not regulated by the Law Society.
During the COVID-19 pandemic, the government issued a number of Ministerial Orders that temporarily allowed certain documents to be signed remotely. All of these Ministerial Orders have since expired. Additionally, some Regulations have been changed either permanently or temporarily to continue to allow for remote commissioning or notarizing of documents. If a lawyer intends to sign a document remotely, they should review the legislation and related Regulations that apply to determine if it is permitted.
In 2020 the Court of King’s Bench issued a notice providing for some accommodations for affidavits to be used in that court. It permits the commissioning of affidavits using video technology and provides detailed guidance with regard to the required steps a commissioner will need to take. Lawyers should check the Court of King’s Bench website for any updates on these accommodations.
The Law Society does not accept trust safety documents sworn virtually.
The Land Titles Act Forms Regulation has been amended to allow for remote signing of Land Titles documents. There is no expiry date on this change.
The Law Society has provided this guidance to summarize the required and recommended practices. This guidance has been vetted and approved by the Registrar of Land Titles.
The Personal Directives Act, Powers of Attorney Act, Wills and Succession Act and the Guarantees Acknowledgement Act all temporarily allow for remote witnessing and execution of certain documents through their Regulations. Lawyers should check the Regulations to confirm if this temporary allowance is still in place.
The Law Society does not regulate how documents are executed. Lawyers should review the Electronic Transactions Act, however, be aware that section 7 of the Act stipulates that it does not apply to testamentary documents and documents of title.
The Land Titles Office still requires originally executed transfers of land and affidavits.
During the pandemic, the government issued a number of Ministerial Orders that temporarily allowed certain documents to be signed remotely. All of these Ministerial Orders have since expired. Additionally, some Regulations have been changed either permanently or temporarily to continue to allow for remote commissioning or notarizing of documents.
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.
- 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.