I understand that the Ethics Committee of the Benchers of the Law Society of BC are meeting today and are considering whether it is ethical for a lawyer to draft a will for a client whom he or she has never met in person.
This question is interesting to me because Heritage Law currently offers simple estate planning services to clients entirely over the internet through a secure online portal on our firm web site. We received approval to do so from the Law Society of BC in January.
In the interest of hopefully avoiding a precedent such as the recent New Jersey ethics opinion , which I believe discriminates against solos and particularly many women lawyers who practice law from home but for security or optics reasons and do not want to provide their home address to clients, I thought I would quickly set out some thoughts on the current issue on Slaw.
Legal services are increasingly only available to individuals who are very low income through legal aid or who are very high income and can afford high hourly rates. Small businesses and middle income individuals are increasingly finding that basic legal services are beyond their budgets. On top of these financial pressures, law firms are grappling with technological changes and new competitors that are altering the business landscape. The democratization of information and access to forms through the internet has started to level the playing field between lawyers and clients.
Non-lawyer competitors are taking an increasing share of the traditional legal marketplace, particularly in more commoditized areas of law such as wills and estates. During the last decade we have seen the emergence of a new category of non-lawyer, legal information web sites, that offer very low cost solutions directly to the consumer. Unconstrained by the ethical rules that govern the legal profession, non-lawyer entities are providing wills to the general public at very low cost without the benefit of the quality, knowledge, professionalism and insurance protection available from a practicing lawyer.
Approximately 50% of Canadians die without any will at all. By offering basic estate planning services online or via phone, email and fax, lawyers can reduce costs and enhance access to this critical service for an unserved client base.
Meeting Our Ethical Duty
Identity and Retainer Issues
Despite the lack of an in person meeting, proper procedures can be put into place to ascertain client identity. For an estate planning matter, there is no barrier to meeting the current Law Society of BC client identification rules even though the client is exclusively “on-line” or on the phone. Specifically, a lawyer practicing in BC is currently only required to inspect and make a copy of a client’s driver’s licence, birth certificate or other similar record if the matter is classified as a “financial transaction” (defined as the receipt, payment or transfer of money on behalf of a client or giving instructions on behalf of a client in respect of the receipt, payment or transfer of money). The lawyer practicing online or on the phone could make it a uniform policy to request that a client scan and email or fax their drivers licence for added security. A valid credit card is usually required for payment which is a further level of identity confirmation.
A client can accept and agree to a retainer agreement outlining the scope of legal services at the time they become a client via the internet, fax, email or regular mail. The acceptance of the retainer agreement establishes the lawyer/client relationship.
Capacity and Undue Influence Issues
Many jurisdictions have older professional rules of conduct or ethics opinions that require that a lawyer meet with a client in person before drafting a power of attorney for that client to ensure capacity and that there is no undue influence. The majority of these rules were created without consideration of how newer, often web-based technologies, in combination with other best practices may be used to address these issues.
Through communications on the a secure web site, via email and on the phone, a lawyer can assess whether a client appears to understand, for example:
– the extent and value of her property;
– The persons who are her natural beneficiaries;
– The disposition she is making; and
– How these elements relate to form an orderly plan of distribution of property.
If from the communications a concern arises with respect to a client’s capacity, the presence of undue influence or there appears to be any red flag at all, the lawyer can refrain from acting further and refer the client to a lawyer who can see the client in person or else schedule an in person meeting with the client themselves if possible.
In the case of Heritage Law Online, our online screening questionnaire asks questions such as if the person is a Status Indian or US citizen, whether assets are over a certain amount, if it is a blended family, if there is a disabled beneficiary, if an expected beneficiary such as a spouse or a child is not receiving a typical distribution etc. If any of these answers are yes, then the client is directed to obtain legal advice from a traditional firm with an in person meeting. Further, if during the course of the retainer it becomes clear that a simple will is not appropriate for the client for any reason, the process is stopped, any payment is refunded and the client is advised to seek traditional legal advice with a detailed explanation as to why that is the case.
It should be noted that there are now numerous online and paper self help resources available for members of the public to acquire legal documents without a lawyer ever communicating with the client or reviewing the documents. By lowering access barriers to legal services, the public in fact will likely be better served by the higher duty of care offered by a lawyer versed in potential problems in an estate planning file.
Access to Justice Issues
Offering legal services online or over the phone means more affordable pricing, convenience and less intimidation for a large segment of the lower to middle income people who are currently not being served at all.
If the Law Society’s mandate is to act in the public interest, then surely that must include enabling the delivery of affordable and convenient legal services to lower and middle income clients to meet their basic legal needs. Further, there are well documented lawyer shortages outside the urban centers of Vancouver and Victoria. Permitting BC lawyers to practice online or over the phone will enhance access to critical legal services for the rest of the province.
So my plea to the Benchers is as follows: let’s not be a profession which restricts our ability to provide affordable legal services to an unserved public. While recognizing the legitimate professional issues to be addressed, the overarching benefit to the public is worth the challenge.