At this time, the client identification and verification requirements of By-Law 7.1 continue to apply. However:
Lawyers and paralegals should review the information below as they do not need to verify the identity of their clients for all matters.
If only client identification is required, lawyers and paralegals are able to comply with their professional obligations without meeting face-to-face or via video conference.
As a result of COVID-19, until further notice, the Law Society will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client. Rather, alternative means of verification such as face-to-face verification via video conference will be permitted. Nonetheless, lawyers and paralegals should conduct a risk assessment to ensure that it is appropriate in their circumstances to verify identity via video conference. If a lawyer or paralegal chooses to verify identity via video conference, they should also attempt to manage some of the risks associated with this practice as outlined below.
Current Requirements: Because there is no obligation to meet with a client face-to-face to identify the client, lawyers and paralegals should
Keep in mind the distinction between identifying and verifying the identity of a client:
Identifying the client means obtaining certain basic information about your client and any third party directing, instructing or who has the authority to direct or instruct your client, such as a name and address. You must obtain this information whenever you are retained to provide legal services to a client unless an exemption applies. This step can be done by email, phone, video conference, or other forms of communication. There is no requirement that it be completed face-to-face.
Verifying the identity of a client means actually looking at an original identifying document from an independent source to ensure that your clients and any third parties are who they say they are. You are only required to verify the identity of your client and such third parties if you are involved in a funds transfer activity, that is, you engage in or instruct with respect to the payment, receipt or transfer of funds, and an exception does not apply.
Assess whether verification of identity is required in the matter.
Verification of client identity occurs face-to-face unless
The individual whose identity is being verified is present in Canada and an attestation from a commissioner of oaths or other guarantor is provided; or
The individual whose identity is being verified is not present in Canada and verification is provided by an agent.
For more information, please review the Law Society’s Client Identification and Verification Requirements resources. For specific information about attestations or retaining an agent, please see Appendices 4, 5, 7, and 8.
Managing the Risk of Face-to-Face Verification via Video Conference:
Where a lawyer or paralegal is considering using video conference as a means to conduct face-to-face verification of client identity instead of being in the physical presence of the client or by attestation or an agent, the following factors should be reviewed to help manage some of 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 Federation of Law Societies’ Risk Advisories for the Legal Profession resource.*
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 to be particularly vigilant for red flags of fraud or other illegal activities.
Where virtual methods are chosen lawyers and paralegals must be particularly alert to these red flags to ensure they are not assisting in or being reckless in respect of any illegal activity.
Lawyers and paralegals should document any red flags, what measures they have taken to mitigate that risk, and their decision on how they proceeded.
If many red flags are present, lawyers and paralegals should consider whether they are permitted to 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 Federation of Law Societies’ Guidance for the Legal Profession resource.*
After conducting this risk assessment, if the lawyer or paralegal decides to use video conferencing to conduct face-to-face verification of client identity, the lawyer or paralegal should
Consider requesting that the client send a high-resolution image of the identification document by secure means in advance of the video conference and asking the client to show the original identification document during the video conference;
Ensure that they are reasonably satisfied that the identification document is valid and current;
Compare the image in the identification document with the client to be reasonably satisfied that it is the same person;
Record, with the applicable date, the method by which the lawyer or paralegal verified the client’s identification; and
Document the efforts that were made to verify the client’s identity in accordance with the existing requirements and the reasons why the lawyer or paralegal was unable to verify the client’s identity in accordance with the existing requirements.*
In response to COVID-19, lawyers and paralegals should be aware that validity periods for government issued forms of identification that expired on or after March 1, 2020 have been extended. For further information, see the FAQ, “In the context of COVID-19, what if a client’s identification has recently expired?” *[See disclaimer.] Last updated: March 30
Lawyers and paralegals should be aware that provincial and territorial governments are taking measures to ensure the health and safety of their employees and the public. This includes extending the validity of identification documents, including drivers’ licenses, that have expired on or after March 1, 2020, so that in-person visits to renewal facilities can be avoided. 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.
As the approach to this issue may vary among provincial and territorial governments in Canada, lawyers and paralegals should check with the appropriate authority in the relevant jurisdiction(s).
Information on the extended validity period for drivers’ licenses in Ontario is available here.
Last updated: March 30