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.
What are my ethical obligations relating to disclosure if I test positive for COVID -19 or am being treated as presumptively positive?
You may be required to provide information to a provincial health officer or their designate, pursuant to the relevant provincial public health act and regulations. The information sought might include the names and contact information of individuals with whom you have had recent contact. This may include the names of and contact information for clients. Under some circumstances, health authorities may also seek more detailed information such as the nature of your recent encounters with individuals or their duration. Such information is confidential and, in some circumstances, may be privileged.
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.
An undertaking must be something that you, as the lawyer, can do. It must be within your control. With that in mind, The Law Society of Manitoba offers this sample undertaking as an example and recommends that this, or a similar written undertaking, dated and signed by the lawyer be submitted with the filing in court of an affidavit or declaration that does not comply with the formal requirements.
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.
Another Option: Remote Witnessing
Rather than file a non-compliant document, another option is now available. Lawyers should be aware that on May 13 the government issued an Order under The Emergency Measures Act relating to remote witnessing under several statutes including The Evidence Act. The Order permits lawyers to remotely witness the taking of an oath or affirmation or the execution of a statutory declaration. Lawyers should review the Order which contains specific steps that must be taken if a document is signed through a glass or plexiglass partition or by videoconference. The Order is in effect from May 13, 2020 to October 1, 2020.
The Law Society has created a checklist relating to the requirements set out under the Order to provide assistance to lawyers.
What about Documents to be filed in the Land Titles Office?
In consultation with the Law Society, the Registrar-General of the LTO has issued a Directive, subsequently extended and clarified, which will allow for the video witnessing of transfers and other instruments as a temporary accommodation in response to COVID-19 until March 30, 2021. The Directive may be revoked prior to that date or further extended at that time.
The Order under The Emergency Measures Act on Suspension of In-person Commissioning or Witnessing of Documents temporarily suspends the requirements for in-person commissioning and witnessing of certain critical documents. It sets out steps which will permit the taking of a statutory declaration or witnessing consents or releases under The Homesteads Act by video conferencing or through glass or plexiglass. The order originally in effect May 13, 2020 to October 1, 2020 has been extended until March/April 2021. This temporary suspension of in-person commissioning and witnessing requirements provides a way for someone in isolation to sign documents safely.
Last updated: September 28, 2020
Can I witness my client’s Declaration as to Possession by video conference?
On September 10, 2020, a number of orders under The Emergency Measures Act were renewed by the Government of Manitoba until March/April 2021. For more information see this latest LSM update COVID – 19 Update: Emergency Order Update
Last updated: September 17, 2020
If I must meet with clients, what can be done?
Maximize non-face to face communications
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 financial support is the federal government providing that could be available to lawyers and law firms?
Below is a list of resources compiled by the Law Society of Ontario – last updated May 21 ,2020
To support Canadian individuals, businesses and industries facing hardship as a result of the global COVID-19 outbreak, the federal government has put in place the Canada COVID-19 Economic Response Plan. This plan is made up of multiple programs, some of which may be available to lawyers and paralegals practising law and providing legal services through a variety of business structures. These programs include, for instance:
Canada Emergency Response Benefit (CERB): The CERB is a taxable, income replacement benefit of $2,000 for a 4-week period (the same as $500 a week) for up to 16 weeks (or four months). The CERB is being delivered jointly by Service Canada and the Canada Revenue Agency (CRA) and the online application portal can be accessed through either of their websites:
Wage Subsidies: The federal government has implemented two separate wage subsidy programs:
Canada Emergency Wage Subsidy (CEWS): The CEWS is a program that will provide a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020. This new program was implemented through Bill C-14, A second Act respecting certain measures in response to COVID-19.
Canada Emergency Business Account (CEBA): The federal government will provide interest-free loans of up to $40,000 to small businesses and not-for-profits, to help cover their operating costs during a period where their revenues have been temporarily reduced.
UPDATE Regarding CEBA: On May 19, the federal government announced an expansion of the Canada Emergency Business Account (CEBA). The expansion makes loans under CEBA available to lawyers and paralegals who do not have annual payrolls of at least $20,000, provided they meet the new criteria.
In addition, the federal government is deferring the time to file income tax returns until June 1, 2020 (for individuals) and until after August 31, 2020 (for businesses). It also is placing an interest-free pause to the repayment of Canada Student Loans until September 30, 2020.
The Great Library has reopened with some restrictions. In order to follow public health orders, access is currently limited to lawyers and the judiciary only, and only when staff are present. At this time staff will be available from 8:30 – 12:00 and 1:30 – 4:00 Monday through Friday. When arriving at the library please call 204-945-1958 at the door and a staff member will then let you in. Please keep your visits to 30 minutes or less.
Library staff continue to be available by email at email@example.com. If you require print materials, you can request them by phone or email, and we will collect them for you. You can pick them up at the security entrance on Kennedy, and return them there as well.
Online Library Resources
We continue to 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. Members can also subscribe to the library’s Current Awareness service to stay current and receive the most recent issues from this collection of NetLetters and Newsletters.