Practicing Law and Social Distancing: Time to Get Creative

By Emily Vereshchak

As lawyers, we are accustomed to adapting to change. Whether it is a new take on an old common law principle or the introduction of a divisive piece of legislation, lawyers must keep pace with the law as it transforms alongside society. However, these changes are often gradual, even predictable, and often discussed and debated within the legal community before they are put in place.

As the COVID-19 pandemic continues to wreak havoc throughout our nation and around the world, many lawyers are now embarking on a crash course in remote working, virtual meetings and even hearings by telephone.

In these challenging times, the legal community is quickly realizing that despite the physical closures of offices, reporting centres and the court, there are alternative means to ensure that matters keep moving forward and clients’ interests are advanced.

The use of technology in the law is not new. It has slowly made its way into practice for several years. For example, Statements of Claim can be filed online, deponents from abroad have attended discoveries by video conference, offices have made the switch from paper to electronic filing, and trials have even been conducted with the assistance of computers and tablets.

As social distancing has become essential in the context of COVID-19, the Law Society of Ontario has encouraged lawyers to consider meetings with clients by phone and video conferencing.

Holding virtual meetings over applications such as Skype, Facetime or Zoom (to name a few) are great ways for lawyers to keep in touch with each other and their clients safely.

When using video conferencing, the Law Society of Ontario has put forth the following recommendations for best practices when providing legal advice for legal professionals:

• 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.

Beyond virtual meetings, digital methods can also be used to conduct negotiations, mediations and arbitrations.  As the courts have largely suspended operations including trials, there are options for parties to resolve disputes informally.

Online Dispute Resolution (known as “ODR”) allows parties to resolve disputes without requiring that they meet in person. Social distancing at its finest!

ODR must be voluntary, confidential, and assisted by a neutral third party. Though this process may not be suitable for complex cases with multiple parties, it does provide an option for many cases with a small number of issues and parties.

The ADR Institute of Ontario offers a searchable directory to assist in the search for dispute resolution professionals who offer their services online (https://adr-ontario.ca/how-to-find-onlinedisputeresolutionprofessionals-ask-adrio/).

As our society continues to navigate its way through this pandemic, we will be required to keep our distance from each other for the next while. Several reporting centres are now offering video conferencing bookings, and we anticipate that many more mediators and arbitrators will make the jump to offer their services online.

As we know, not all disputes can be resolved informally. As the courts have suspended their regular operations, it is currently unknown when normal functions will resume.

However, efforts are currently under way to implement and expand telephone and video access to the court. The Advocates’ Society, for example, has recently developed an “E-Hearings Task Force” to help increase access to justice while maintaining social distancing. We look forward to further updates in regards to this objective as they become available.

To help keep track of the rapid changes and responses to COVID-19, the Law Society of Ontario has compiled a convenient list of responses by various organizations to keep everyone informed. The list can be found here: https://lawsocietyontario.azureedge.net/media/lso/media/news-events/covid-19-resources-list.pdf

Though it may be a while before we can shake hands again, this does not mean that the legal community cannot adapt. These tools can help bring professionals together to serve clients, from a distance.