In the context of COVID-19, public health best practices include physical distancing. Lawyers and paralegals should consider conducting routine meetings with clients by phone or using video-conferencing options such as Zoom, Skype, Facetime and other platforms. It is also important for lawyers and paralegals to be aware of the types of engagements with clients that in typical circumstances would require an in-person meeting and that in the context of COVID-19 require a heightened risk-based approach if an in-person meeting is not going to be conducted.
Lawyers and paralegals should be mindful of their obligations to communicate effectively with clients in selecting an alternative means of communication:
Commentary [8.1] to Rule 3.1-2 of the Rules provides that 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.
Rule 3.01(4)(e) and (f) of the Paralegal Rules defines competence as including communicating with the client at all relevant stages of a matter in a timely and effective manner, and answering reasonable client requests in a timely and effective manner.
Guidelines 10, 10.1, and 10.3 of the Paralegal Professional Conduct Guidelines state that a paralegal can provide more effective client service by keeping the client informed regarding his or her matter, and being clear about what the client expects, both at the beginning of the retainer and throughout the retainer.
In the context of COVID-19, if lawyers and paralegals choose to change their means of client communication, they should consider notifying clients about the alternative means of communication that they intend to use as soon as practicable. For more information about best practices in using alternative means of communication, please see the questions and answers below.
Last updated: March 16
Lawyers and paralegals should continue to consult the relevant legislation and case law that govern capacity, and consider whether or not they have the ability to adequately assess a person’s capacity through remote means, such as on video conferencing or telephone.
Applicable legislation includes the Substitute Decisions Act, the Rules of Civil Procedure, and/or other legislation and regulations, depending on the context of the matter. The legal requirement(s) for assessing a person’s capacity to make a decision are not regulated by the Law Society, and vary based on the task or decision at hand.
In using video conferencing or telephone as the exclusive means of communicating with a client, lawyers and paralegals should also assess whether there is a risk that the client may be subject to undue influence or duress.
Last updated: April 8
Yes, however the rules impose a duty on lawyers and paralegals to inform their client(s) of their intention to do so. The benefits, risks, requirements, and risk management best practices are described in more detail below.
In the context of COVID-19, where client communication and confirmation of instructions may be more challenging due to remote working, physical distancing protocols, and/or where lawyers and paralegals are attempting to quickly adapt to the use of new technologies in their practices, there are benefits to recording meetings. However, if lawyers and paralegals choose to record such meetings, they should be mindful of the associated risks of doing so and take steps to manage these risks.
Benefits of Recording
Some of the benefits of recording of a meeting with a client include providing the lawyer or paralegal with the ability to:
Capture client instructions where an in-person meeting is not possible due to public health protocols
Focus on listening and, for virtual meetings, observing visual cues, rather than note taking
Transcribe important or complex information after the meeting, and
Demonstrate the process followed for the virtual meeting rather than simply documenting it.
Risks of Recording
These benefits should be considered in the context of the following risks:
Access by others to audio or video files of client meetings that were not securely stored, as this may result in breaches of confidentiality or privilege.
Some clients may be less open and honest with a lawyer or paralegal if they know they are being recorded.
Important client meeting information could be lost if there are limits on access to the recorded files.
Requirement to Inform
After balancing the benefits and risks, if a lawyer or paralegal wishes to record a client conversation or meeting, the lawyer or paralegal must inform the client of the intention to do so (r. 7.2-3, Rules of Professional Conduct; r. 7.01(6), Paralegal Rules of Conduct). Lawyers and paralegals are prohibited from using any device to secretly record a discussion with a client, irrespective of whether such recording is permitted by law.
Lawyers and paralegals should be aware that the Law Society rules also require them to inform other legal practitioners of their intention to record them if they intend to do so. Although not required by the Law Society rules, if other persons are present for a meeting that a lawyer or paralegal intends to record, the lawyer and paralegal should also inform such persons about their intention to record them, as there may be other legal requirements to advise persons about the recording.
Risk Management Best Practices for Recording
In addition to complying with the Law Society’s rules, to manage the risks of recording identified above, lawyers and paralegal should also consider taking the following steps:
Reviewing the virtual conferencing service agreements to determine security, location, and accessibility of recordings and taking appropriate steps to address any issues that arise.
Where possible, confirming the intention to record the client in writing in advance. If that is not possible, confirming the intention to record the client at the start of the recording.
Reminding the client at the outset of the call or meeting that it is being recorded.
Assessing on an ongoing basis whether the recording of the client meeting is undermining the client freely sharing relevant information with the lawyer or paralegal.
Last updated: April 2
When using video conferencing for the provision of legal advice or services, lawyers and paralegals should:
Confirm the client’s consent to proceed in this manner.
Ask that all individuals in the remote location introduce themselves.
Consider whether the presence of any of the individuals in the remote location impacts privilege and confidentiality, and assess the most appropriate next steps to protect same.
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.
Maintain detailed records including: date, start and end time, method of communication, identity of all present, and minutes of content of meeting.
Last updated: March 24