Is It Ethical to Draft a Will for a Client You Have Never Met in Person?
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.
It’s a tough call. If someone has few assets but a strong desire to make a bequest to a certain charity, or to leave nothing to a particular family member, it seems unethical to deny them an opportunity to have a will prepared at low cost.
On the other hand, it seems highly unethical to prepare a will for someone without having met them if they have substantial assets or if they want to try to leave everything to their accountant.
Lawts, I hear you. I do note that in more complex instances (i.e. where a client has substantial assets or wants to leave everything to their accountant) we would decline to prepare a will online and would require that they meet with us or another lawyer in person.
Read more: http://www.slaw.ca/2010/04/22/is-it-ethical-to-draft-a-will-for-a-client-you-have-never-met-in-person/#ixzz0lrE0zCHP
Thanks for the update in this area from the Law Society of BC. Here in the states, the NC State Bar Ethics Committee has recently opened an inquiry into the use of cloud computing in law practice management. This would extend to those of us using technology to deliver unbundled legal services online. It will be interested to see what guidelines emerge from this examination and how that may influence other state bars.
I’ve been providing estate planning to clients through my virtual law office several years now also without meeting my clients face to face. Whether or not you should represent a client online is the individual responsibility of the attorney to make on a case by case basis. Your points about the benefits to the general public and access to justice are spot on.
I’ve been thinking a lot about this lately myself; your article is very timely. I disagree about estate planning being qualified as “commoditized.” First, I find that most clients really don’t know what they have or what they need, and why would they? Almost all of my clients think they “don’t have anything” and “just need a simple will” when in fact most of them have a whole lot more than they realize and would be better able to accomplish their objectives in creating an estate plan with trusts. So the process of sitting down and talking through everything really helps to educate them and allow them to make well-informed decisions.
Second, I have yet to have 2 sets of clients with the precisely same plan needs). Sure, I’ve created templates from which to start drafting, but I change them, sometimes dramatically, to suit each client’s needs. Third, I think it’s partly a generational shift that we Gen-Xers & those behind us are so comfortable on the computer that we think we’re sufficiently well educated and intelligent to do it ourselves without the help of professional legal counseling and advice (the DIY approach) and so we come to (I believe mistakenly) believe that wills and trusts and such are semi-customizable commodities we can just buy online. We are only seeing the tip of the iceberg and I expect we will see more and more unintended consequences and outright failures of those “plans.”
Yet all that aside, I understand where my clients are coming from on this because I have been right there with them. And because I believe it’s so important to take care of these important matters, I am anxious to make things more accessible for them to be able to do so. Most of my clients struggle to find a time to come in to meet with me because of all of our extremely busy work-life schedules. Online alternatives may address that part of the problem.
My concern in foregoing an in-person meeting is about how much you lose in terms of facial expressions and body language when discussing extremely important matters, particularly where you’re representing a couple together and it’s helpful to see their interaction with one another and reactions to what the other says. Perhaps it’s the nature of my process that differs in not just plugging information into blanks. I am trying to find a compromise solution to this challenge and may actually try it soon… I guess I’ll see how it works out for me. Thanks for shedding light on the changes in this area and best wishes!