As we continue to move into our new normal in the context of the evolving COVID-19 pandemic, many law practitioners have found that virtual client meetings are beneficial in terms of providing access and availability to our clients. Even as we hope to leave the pandemic behind us, many will agree that virtual client meetings should continue.  

How we communicate with our clients while relying on video conferencing technology is especially important in the context of wills and estates law because there is the heightened potential for undue influence when a client seeks our advice in drafting or revising wills and power of attorney documents, or even when bringing a challenge to a testamentary document or the use of a power of attorney. 

The Law Society of Ontario Rule of Professional Conduct 3.1-2 at Commentary [8.1] tells us that what is effective communication with the client will vary depending on the nature of the retainer, the needs and sophistication of the client, and the need for the client to make fully informed decisions and provide instructions. 

Certainly, one of the advantages of in person meetings is that we can easily identify who else is in the room with our client or witness, whether they are relying on notes to provide instruction, or testimony, and whether the client’s location permits them to be able to speak privately and in confidence. 

The Law Society of Ontario has advised that, as a matter of best practice, a lawyer when conducting virtual client meetings will:

• Ensure that everyone has consented to proceed by video conferencing.   
• Make sure that they can hear and see all parties in the remote location. 
• Ensure that there is no one else at the remote location who may be improperly influencing their client, potential client, or witness. 
• Consider whether the presence of any party will impact their client’s privilege and confidentiality. 
• Ensure that a new client’s identification documentation is sent to their law firm in advance of a virtual meeting. 
• Provide adequate opportunity for a client to ask questions during the video conference.  
• Allow themselves enough time, especially if this is a first meeting, to ask questions in order to adequately understand why this individual is seeking to make a new will, grant a power of attorney, or make changes to their existing will or power of attorney documents at this time; what impact this might have on beneficiaries or attorneys under an existing instrument; whether this could trigger a challenge at a later time; and to document their understanding of the reasons for this new transaction. 

Undue influence is not a new risk; however, it may be more difficult in a virtual setting to gauge body language or to know what is occurring off-screen. Furthermore, not all clients are comfortable disclosing personal information in this way. As we move into our new normal, there is still room for old school face-to-face meetings, especially if it means we can better manage this risk. 

Thank you for reading. 

Suzana Popovic-Montag and Susanne Myers