What if I have a question about how to comply with my professional obligations or about practice management issues arising out of COVID-19?
Law Society staff are available to assist you. You can contact Darcia Senft at firstname.lastname@example.org or leave a voice mail message at 204 – 926 – 2023. Inquiries will be returned by email or telephone as soon as possible.
How can I still communicate safely yet effectively with clients?
Public health advice on social distancing should be respected. Meet with clients by phone or using video-conferencing options (Zoom, Skype, FaceTime, etc) whenever possible.
Rule 3.2-1, Commentary 3 of the Code of Professional Conduct says what is 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.
In some situations, it may not be possible to avoid meeting with clients and others. Take precautions to minimize the risk of exposure to COVID-19 as recommended by Public Health Authorities.
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, you should:
Record the proceeding if possible
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.
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, and minutes of content of meeting.
Confirm advice, discussions, and/or decisions in writing to the client immediately or shortly after the virtual meeting.
Be sure to preserve the recording of the proceeding.
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 as it goes without saying that if there is a need for ILA it 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 the advice you provide should be made.
What should I consider when working from Home?
Keep client information confidential from family members or others. If your nonlawyer staff are able to work remotely impress on them the importance of confidentiality and continue to supervise them.
Make arrangements to secure and receive mail and deliveries to your office – you don’t want important client documents sitting on your doorstep.
Communicate information about changes in your business operation to clients and staff as soon as practicable. Use email updates, notices on your website or office door, or other means, as appropriate, based on the needs of your clients and staff.
How do I identify or verify a client under the Anti-Money Laundering Rules if I can only meet with them by telephone or video conference?
The anti-money laundering and terrorist financing rules permit members 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 by using information in a client’s credit file. You can find documents on our website to assist you with these processes.
Also, you may be able to rely upon the previous verification by another person who is a reporting entity to FINTRAC (for example, a real estate agent or mortgagee) as permitted under the rules.
If the dual process method, credit file or previous verification by a FINTRAC reporter is not possible, in these unique circumstances and as a last resort, the Law Society will take a reasonable approach in its compliance activity if you were to conduct the verification of the client’s identity by using video conference technology, provided that:
You can compare the image in the government issued identification with the client to be reasonably satisfied that it is the same person;
You can be reasonably satisfied that the government issued identification is current and authentic;
You record, with the applicable date, the method by which you verified the client’s identification;
You treat the transaction as a high risk transaction and continue to monitor the business relationship as a high risk transaction;
You document the efforts that were made to verify the client’s identity in accordance with the existing rules and the reasons why you were unable to verify the client’s identity in accordance with the existing rules;
You consider whether there are any red flags associated with fraud or money laundering, attempt to mitigate risk, and determine if you should proceed;
You stay alert to the fact that people may attempt to use situations like COVID-19 as an opportunity to commit fraud or other illegal acts;
You are particularly alert to these red flags to ensure you are not assisting in or being reckless in respect of any illegal activity; and
You document any red flags, what measures you have taken to mitigate that risk, and your decision on how you proceeded.
For more information on anti-money laundering check out these resources:
Can I use virtual commissioning in the context of COVID-19?
The Court is making an accommodation that affidavits and declarations that are subject to formal requisites (i.e. they have to be properly sworn/affirmed and signed by the deponent or person declaring and properly witnessed etc.) can be filed without compliance with
these formal requisites (such as original signatures or witnessed in the presence of the commissioner or other officer or person administering the oath etc.). Such documents must be filed together with an undertaking by the lawyer that an original of the affidavit or declaration that complies with the formal requisites will be filed prior to the hearing date, failing which the party would not be entitled to rely on it or would be required to withdraw it.
For this purpose, The Court is invoking section 66 of The Manitoba Evidence Act which provides as follows:
No informality in the heading or other formal requisites to any affidavit or declaration, made or taken before a commissioner or other person authorized to take affidavits under this or any Act, is an objection to its reception in evidence, if the court or officer before whom it is tendered thinks proper to receive it.
To be clear, this does not affect in any way the exclusive jurisdiction of a judge or master to ultimately receive any affidavit or declaration in evidence.
What about Documents to be filed in the Land Titles Office?
The Manitoba Evidence Act, together with The Real Property Act do not permit an affidavit or statutory declaration to be sworn, affirmed or declared electronically. As this is mandated by legislation, the Law Society does not have the jurisdiction to waive this requirement.
In consultation with the Law Society, the Registrar-General of the LTO has now issued a Directive which will allow for the video witnessing of transfers and other instruments as a temporary accommodation in response to COVID-19 and until May 15, 2020 or as extended.
Can I witness my client’s Declaration as to Possession by video conference?
It is standard practice for lawyers to have their vendor- and mortgagor-clients execute a Declaration as to Possession in the form prescribed under The Manitoba Evidence Act. The MEA provisions require the witness to be in the physical presence of the deponent – a declaration under that Act cannot be commissioned electronically – and the Law Society has no jurisdiction to change the law. However most offers to purchase and mortgage instructions do not specifically obligate the vendor/mortgagor to provide a statutory form of declaration that complies with the MEA. In circumstances where it is not possible or is medically unsafe to witness a client’s declaration in person, the parties might agree that a non-conforming declaration would be a sufficiently actionable representation of the state of matters canvassed in the declaration.
Take care, though, to not misrepresent the nature of your client’s statements. Section 65 of the MEA makes it an offence to sign a jurat or attestation knowing that the declaration has not been made in conformity to the Act. You can’t attest that a document was signed in your presence if it wasn’t. A declaration or statement to be made using video conferencing should contain an attestation at the end describing that the declarant was not physically present before the witness but was linked to the witness by video technology.
Instead of the MEA attestation and jurat, the Declaration as to Possession could have the following attestation:
I, A.B., do solemnly declare and represent that:
(state the fact or facts represented)
and I make this declaration and representation not in the physical presence of the witness but linked to the witness by video technology, conscientiously believing it to be true, and knowing and intending that it will be relied upon by the purchaser or mortgagee, as the case may be, of the within property.
Witnessed by me by means of video ) technology at , in Manitoba, ) this day of , 2020. )
Documents can be sent to clients electronically, along with written explanatory materials describing the nature and effect of the documents.
Schedule follow-up telephone calls with clients for the asking and answering of any questions
Minimize Personal Contact
Limit in-person meetings to 10 minutes, and confine your activity to the verification of identity and document execution steps which require personal attendance
Maintain the recommended 1 metre distance between yourself and the clients
Follow all other precautionary protocols set out by public health authorities, including washing your hands thoroughly after each meeting.
Postpone when necessary
There may be circumstances where you cannot safely meet with your client, including cases where your client is hospitalized or quarantined or is incapable of attending to execution due to illness. In those circumstances, closings will need to be postponed just as in the event of any other unforeseen disability. Extend to other lawyers the same courtesy and cooperation you would expect when such postponements become necessary.
Can I have clients use electronic signatures to execute documents?
This is a substantive legal issue and is context specific. Please review The Electronic Commerce and Information Actand any other applicable legislation to determine if electronic signatures are permitted in the context of your matters.
What should I do about the disruption to my practice?
If you already have a disaster or business continuity plans in place, review those now. Here are some links to resources on disaster planning for lawyers.
Disaster Planning and Recovery, published by Lawyers Mutual Liability Insurance Company of North Carolina, a bar-related American lawyers’ insurer, provides sample plans, forms and checklists and excellent advice from a hurricane prone state.
I am feeling overwhelmed by the impact of COVID 19. Is there help available?
The Law Society’s Health & Wellness Program offers free and confidential service to practising lawyers, articling students and their families through Manitoba Blue Cross. It offers help with stress, relationships, psychological disorders, financial crisis, family and parenting, emotional and behavioural concerns as well as addictions.
Services are available 24 hours per day, seven days per week, by calling the Manitoba Blue Cross Employee Assistance Centre at:
Hearing Impaired Line
For additional support check out this mental health resource developed by Manitoba Blue Cross to assist all of us to cope with the stress and anxiety associated with the impacts of the COVID-19 pandemic, including tips for self-care, managing anxiety and accessing support: Mental health support through the coronavirus (COVID-19) pandemic.
What about my practising fees?
Practising fees are presently due April 1, 2020. The Law Society is prepared to waive any late payment penalties and extend time for payment to April 30, 2020. We will reassess at that time in the event that the situation has not resolved.
Can I still access The Great Library?
The Great Library is not open given the recent access restrictions at the Law Courts. We encourage members to use remote access, starting with the collection available behind the Member Portal. For help navigating these resources, please refer to our guide, “Accessing Library Resources behind the Member Portal”, located on our Legal Ease page at lawlibrary.ca. We will continue to distribute the newsletters in our Current Awareness collection. Please contact the library by email (email@example.com) for any of your legal research needs.
Are Law Society events cancelled?
All scheduled meetings and CPD sessions have been postponed until further notice. CPDonline remains available on our website.
Do I still have to file my Annual Member Report?
The usual deadline for filing the Annual Member Report is April 2020. Although most of you complete it on-line, we appreciate that many of you are occupied by more pressing issues in your practice as you respond to the COVID-19 crisis. In the circumstances, the Law Society is extending the deadline to submit your annual member report to May 1, 2020.