Virtual Identification, Verification, and Witnessing of Clients During COVID-19

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During the OBA Law Practice Management Section series we discussed Virtual identification of client identity: What tools are you using?.

You are required to identify your client when you provide legal advice. Identifying the client means obtaining certain basic information about your client and any third party instructing you. This information includes items like the person’s name, address, and occupation.

Verification is different than identifying your client. Verifying your client’s identity means looking at an original identifying document from an independent source. These documents can include a passport, driver’s licence, or a birth certificate. Lawyers can take the extra step of verifying a driver’s licence on the Ministry of Transportation website.

Verification is required when a lawyer engages in or is instructed with respect to payment or receipt of funds. By-law 7.1 sets out further details.

The Law Society of Ontario has provided guidance on the requirement of face to face verification in the time of COVID-19. Face to face verification can occur virtually.

If the client’s identity card (e.g. driver’s licence) has expired on or after March 1, 2020, then lawyers can still consider the card as valid during the COVID-19 crisis.

Lawyers should ask their clients to send the identifying document in advance of verifying the client’s identity online. They should look for a high resolution image, a valid identification card that is current, and should record the method and date that the identity is verified.

Lawyers should also document why they were unable to meet in person, the start and end time of the meeting, and the method of communication.

For commissioning and notarizing documents, lawyers can commission and notarize virtually. However, documents that must be certified as original copies must be physically inspected at a later date.

The Electronic Commerce Act, 2000, sets out when electronic signatures are allowed. Electronic signatures are allowed in most cases, except for the items listed under subsection 31(1). Recently, the Ontario Government has modified subsection 31(1) to allow wills and powers of attorney to be witnessed virtually.

While meeting with clients online, lawyers can record meetings with clients online. However, the client must agree to it in advance, and ideally agree to it in writing.

The following tools can be used to speak online with your client:

  • Office 365 (using Teams)
  • GoToMeeting
  • FaceTime
  • WhatsApp
  • Cisco Webex
  • Google Duo
  • Zoom

Wired has set out a comprehensive review of the privacy features of some of these tools in the article How to Keep Your Zoom Chats Private and Secure.

While speaking with clients online, lawyers should look out for red flags. The Anti-Money Laundering and Terrorist Financing Working Group has set out some red flags. These include: the client having no email address, no physical address, foreign buyer, p.o. box, shell business, being paid an unusually high fee for little to no work, or being unclear as to why you are being chosen do the job.

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(Views are my own and do not reflect the views of any organization.) heatherdouglaslaw.com 

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