COVID-19 gives rise to unprecedented and evolving new processes and requirements.



Whether you are conducting an initial interview, providing ILA, or taking an affidavit or instructions to draft a will, here are some steps to consider to reduce the risk of a negligence claim:

Now more than ever checklists are a critical tool in effectively managing and communicating with your client. Consider having your client complete an initial client questionnaire and provide you with any relevant documents before your meeting. Review the completed questionnaire and other documents before your intake meeting to be in a better position to effectively communicate with your client. Also use a checklist during the virtual meeting to remind yourself of the questions to ask and areas to consider. The checklist can also be used to form a record of what was discussed. The Law Society has produced a number of helpful checklists including: Best practices for video-conferencing,  LIF Annotated ILA Checklist, Family Practice Interview, Will Maker-Interview, Will Drafting, and  Practice Checklists Manual.

Make sure everyone has consented to proceed by video conference. While many are comfortable with video conferencing some clients may be uncomfortable disclosing personal information this way. Also consider if the legal work is too complex to accomplish only by virtual client meetings. If there is no concern about delay, it may be advisable to put off the completion of the legal work until you are able to have face-to-face meetings. If you proceed, take the time to make sure everyone can see and hear everyone else and that the audio and video feeds are stable.

At the outset of a virtual meeting with the client ask the client if anyone else is in the room or can hear what is being discussed and if so, why. Make a record of everyone who is present on the call or within earshot. It may be that the client needs assistance with technology. However, lawyers should be alive to the possibility of someone influencing the client. This is not a new risk; however, your ability to identify circumstances where undue influence is occurring may be more difficult with a virtual connection because you can’t see what is going on off-screen. For example, it is important to ask clients why they are seeking a will at this time and ask questions to satisfy yourself that the client is acting independently. Further, if a client is instructing you to make a change to their will, make inquiries into the relationship your client has with each beneficiary. Encourage the client to ask you to repeat anything you’ve said and to ask questions. Summarize what you understand to be your instructions. Take detailed notes reflecting your consideration of undue influence, particularly if there are circumstances of concern.

This is a continued responsibility but may take longer in a virtual setting. Spend time to confirm the decision the client has landed on or the remaining options that the client will be thinking about. Often the tools available will allow you to share the screen with your client so that they can follow along with you when reviewing specific parts of a document. Consider highlighting specific client requests in the document and share your screen. Discuss and confirm in writing how your client’s concerns have been addressed.

This is not a new risk but if it is an issue, your ability to assess may be more difficult. Ask open questions and dig as deep as may be necessary. If your client is someone about whom you have concerns about mental capacity, see Acting for a client with dementia (Practice Watch, Spring 2015) for helpful suggestions. Consider also whether your client is capable of successfully participating in a virtual meeting with you.

Take more notes than you usually would and be detailed in documenting what occurred, what was said, the timing and your consideration of capacity, particularly if you have any concerns.

As part of your standard practice consider sending a reporting letter soon after virtual meetings and confirm what was discussed. This will help ensure that you and your client are on the same page, and will serve to confirm your legal advice and your instructions. If the client needs to provide you with additional information or instructions, ensure you put that in writing as well.

Where necessary, remember to diarize following up with the client. Don’t let matters fall by the wayside on the assumption that the client doesn’t want to deal with them during the COVID-19 lockdown.

Consider whether it is appropriate to proceed virtually or if you should physically meet with your client.

Continue to monitor the Law Society’s FAQ for further updates and practice resources.