PRACTICE TIPS, by Dave Bilinsky, Practice Management Advisor
Confidential emails, mandatory e-filing of land title documents
A moving stream of information
That is floating on the wind
The secrets never end
And now they call,
They sing, they play, they dance
For you, from out of the blue,
What can you do?
Lyrics and music by Jeff Lynne, recorded by Electric Light Orchestra (“Secret Messages”)
You are a family law lawyer. One day, a client walks into your office and drops off an envelope of papers for you to review.
You open the envelope and start to read. Your eyes grow wide as you see printouts of emails between your client’s spouse and the spouse’s solicitor.
Now a host of questions come into your mind. How did your client obtain these emails? Did his wife print and leave them lying around? Were they in a locked filing cabinet? Did your client legitimately have access to his spouse’s email or did he guess or find her user name and password, perhaps with stealthy key-logging software on a shared family computer? Did he install such key-logging software on his spouse’s computer? Does it matter?
Notwithstanding how your client obtained these emails, placing them in an envelope and delivering them to you clearly places you in the middle of an ethical quandary, both legal and technological.
Chapter 5, Rule 15 of the Professional Conduct Handbook deals with these questions. It reads:
Use of opponent’s documents
15. A lawyer who has access to or comes into possession of a document which the lawyer has reasonable grounds to believe belongs to or is intended for an opposing party and was not intended for the lawyer to see, shall:
(a) return the document, unread and uncopied, to the party to whom it belongs, or
(b) if the lawyer reads part or all of the document before realizing that it was not intended for him or her, cease reading the document and promptly return it, uncopied, to the party to whom it belongs, advising that party:
(i) of the extent to which the lawyer is aware of the contents, and
(ii) what use the lawyer intends to make of the contents of the document.
So what should you do? Well, as they say, that all depends on the circumstances. Following are extracts from Ethics Committee or hearing panel decisions in prior cases:
Your client obtained the emails innocently:
The parties negotiating a separation agreement were living in separate residences. Their child innocently obtained a copy of the husband’s notes to his lawyer about the agreement and brought them to the wife’s home. The wife’s lawyer was required to return the notes in accordance with this Rule. The husband would have had a reasonable expectation of privacy about the notes and they were released in error. (Ethics Committee, October 2004)
No steps were taken to secure the emails:
A party’s expectation of privacy regarding a document will depend on the steps taken to secure it. When that issue is in dispute, the lawyer who has received the document must return it. That does not prevent the lawyer from later seeking its disclosure on the basis of relevancy. (Ethics Committee, October 2004)
(It would be a very rare case indeed that a party to litigation would not have an expectation of privacy regarding emails with their counsel. After all, solicitor-client communications are privileged and there would be no right of disclosure by the other side. If there were emails in that envelope that were not solicitor-client communications, then the issue of the security taken to keep those emails private becomes relevant.)
What should you do with the emails?
A lawyer acted for a client who purchased a strata lot. A portion of the building was in dispute between the client and the strata corporation, with the client claiming that a storage area constituted part of his strata lot. After raising the issue on behalf of the client with the strata corporation, the client found a binder of documents in a closet in the living area of his unit. The binder included letters from the strata corporation’s lawyer regarding the dispute. Some of the documents were likely privileged and were not intended for the lawyer or his client to see. Rule 15 required the lawyer to return the material to the strata corporation or its lawyer. After returning the documents, the lawyer was free to apply to the court to have the documents produced to him on the ground that privilege was lost as a result of their disclosure and they should be available to the lawyer’s client for use in proceedings to resolve the dispute. If the client’s instructions prevented the lawyer from carrying out his obligations under Rule 15, the lawyer must withdraw. (Ethics Committee, October 2006)
What use can you make of these emails:
A lawyer was guilty of professional misconduct when, prior to his retainer, he accepted a recording of a telephone conversation between his client’s wife and her lawyer (without consent of either party), prepared a transcript of the recording, and used the transcript to prepare for an examination for discovery. (Law Society v. Kirkhope, 2005 LSBC 23)
What if the client issues instructions contrary to Rule 15?
If client instructions prevent a lawyer from carrying out the lawyer’s duty under Rule 15, the lawyer must follow the client’s instructions but may not act for the client any further in the matter. (Ethics Committee, September 1999)
What if there were more than just solicitor-client emails in that envelope?
A lawyer’s client, the wife in divorce proceedings, had access to her husband’s email which contained evidence of undisclosed assets and income. Her husband had given her the password to two email accounts, but had subsequently changed only one. The client provided the emails to the lawyer from the account where the husband had given the wife the password. The lawyer did not have an obligation to turn over the emails in question to the husband or his lawyer because the husband had provided his wife with the password. Any information obtained from an account where the husband had changed the password and not provided it to the wife would trigger an obligation under Rule 15. (Ethics Committee, December 2006)
In summary, solicitor-client emails are (and possibly further correspondence could be) privileged and there is an obligation under Rule 15 to inform opposing counsel that you have the emails and are returning them. You must also inform counsel how much you know about the content of the emails and what use you plan to make of that knowledge.
If the envelope contained emails that were not solicitor-client communications, then you should embark on a line of inquiry as to how your client obtained these emails, such as whether they were left in hard copy form in a folder in an unlocked filing cabinet or whether the client was previously provided with a password to the spouse’s email account. How you ethically deal with these emails depends on the answers that you get to your inquiries.
If your client has “hacked” into the spouse’s email account, then you have an obligation to comply with Rule 15 and seek instructions to return the emails to opposing counsel. If your client refuses to provide you with those instructions, your duty is to withdraw and no longer act for that client.
Hopefully this column has provided a bit of helpful advice if some secret messages come into your office one day.
As we know, phase 2 of the mandatory electronic filing (as opposed to hard copy paper filing) of certain land title documents will start May 7, 2012 pursuant to s. 168.111 of the Land Title Act.
The schedule for the required electronic filing of forms and associated applications is as follows:
July 1, 2011
Posting plan and associated application and certificate
January 16, 2012
Form A – Freehold Transfer of Fee Simple
Form B – Mortgage
Form C – Charge
Form C – Release
May 7, 2012
Claim of Builders Lien
Form A – Freehold Transfer of Life Estate, Determinable Fee Simple and Fee Simple on Condition
Form 17 (including supporting documents)
Strata Plan not requiring local government or provincial approving officer’s approval
Forms and applications under the Strata Property Act, S.B.C. 1998, c.143
Reference, Explanatory or Statutory Right of Way Plan filed in support of a Form C – Charge or Form C – Release
Statutory Right of Way Plans not accompanying a Form C – Charge
Reference Plan pursuant to s. 100 of the Act
Public Official Plan
There are only a few exemptions from this requirement to e-file that are applicable to lawyers:
Phase 1 (July 1, 2011 to May 6, 2012)
- Any land title form that is submitted as part of a package where the package includes one or more other documents, such as a survey plan requiring local government or provincial approving officer approval by the Land Title Office, are not required to be filed electronically.
Phase 2 (effective May 7, 2012)
- Applications requiring preliminary inspection, specifically:
- Caveat (Land Title Act, s. 282)
- Certificate of Pending Litigation (Land Title Act, ss. 215-217, 252-258)
- Provincial Expropriations (Expropriations Act, ss. 6(1), 16(2), 18(5), 19(2) and 23(1))
- Injunction (Land Title Act, s. 284)
- Provisional Indefeasible Title (Land Title Act, s. 193)
- Securities Act Charge (Land Title Act, s. 151)
- A hard copy Land Title Form, Posting Plan or Claim of Builders Lien that has been executed prior to the effective date of a requirement to electronically file under s. 168.111(1)(b).
What can you do to get ready for e-filing?
The Land Title Survey Authority and BC Online offer training online or at your office as well as ongoing telephone support. This can be arranged by calling 1.800.663.6102 or 250.953.8200.
What do you need?
Go to the Land Title Survey Authority website at https://help.ltsa.ca/cms/getting-started for what you need to get started with electronic filing, including:
- setting up a BC OnLine account, with access to land title applications;
- computer system requirements;
- scanner requirements;
- setting up folders for your electronic filing system (EFS) files;
- downloading electronic form templates and accessing EFS;
- obtaining a digital certificate registered with Juricert (juricert.com);
- Adobe Acrobat 9 or 10 (standard or professional edition);
(Note that LTSA recommends that users of Adobe Acrobat 8 purchase an upgraded version within the next few months, as Adobe Systems has discontinued support for version 8. Current LTSA electronic forms will support Acrobat 8 until newer versions of these forms are introduced by the LTSA, tentatively in Spring 2012.)
- setting up electronic payment (separate from your BC OnLine electronic funds transfer agreement).
There are a number of online video tutorials on how to get started with EFS on the Land Title Survey Authority website (https://help.ltsa.ca/cms), such as:
- Get a Digital Certificate from Juricert
- Set up the Digital Certificate in Adobe Acrobat
- Submit a Package
- Create or Contribute to an Electronic Meet
- Authorized Electronic Payment
What do you do with the signed documents?
Many people wonder what to do with the signed land title documents.
Section 168.51 of the Land Title Act states:
Production of evidence
168.51 The registrar may, before the registration or cancellation of an estate, interest or claim evidenced by an electronic instrument, require that an applicant do one or more of the following:
(a) produce for inspection
(i) the executed true copy of the electronic instrument referred to in section 168.3 (3) (a),
(ii) a supporting document referred to in section 168.41 or a true copy of a supporting document, and
(iii) the executed true copy of the electronic instrument referred to in section 168.3 (3.1);
(b) produce evidence, satisfactory to the registrar, to verify that a transferor
(i) if Part 5 applies in relation to an instrument, executed a true copy of the electronic instrument in the presence of an officer and made the applicable acknowledgement under that Part, and
(ii) if Part 5 does not apply in relation to an instrument, executed a true copy of the electronic instrument in compliance with the applicable enactment;
(c) produce evidence, satisfactory to the registrar, to verify that the requirements established under section 168.3 (3.2) are met.
Once the time period has passed by under s. 168.51 (i.e. the estate, interest or claim has become fully registered or cancelled), there is no need to retain the “executed true copy” (the originally signed document). It is recommended that you scan or copy this executed true copy and send the originally signed document to your client for their records.