Introduction
Since the pandemic, more of us are increasingly working online, and for many clients, this has become a non-negotiable when looking for a solicitor. As a lawyer, you may feel torn between wanting to provide a convenient service for clients, whilst still being compliant and protecting against risk.
The one area where we see this tug-of-war playing out is the question of whether documents can be witnessed virtually, and the answer, unfortunately, isn’t always straightforward.
At Lawhive, we are passionate about making legal services simpler and more accessible for both clients and solicitors who want to work online. Clearly being able to witness documents virtually is a big part of this vision, so we posed this question directly to the Solicitors Regulation Authority for their thoughts.
The SRA’s Response
Generally, the rules around signing and witnessing a legal document (including oaths and statutory declarations), will be either set out in statute, case law or by the organisation requiring the document. For example, the Land Registry will have its own rules about whether a Deed can be witnessed online.
In practice, the rules will not always be crystal clear about whether physical attendance is required and there may be room for interpretation. We have spoken to the SRA about these grey areas and they have confirmed:
Where the law allows flexibility and does not require physical attendance, then as long as solicitors have ensured their actions meet the legal requirements and have addressed any risks for their client, then we do not consider our rules would be engaged here.
It seems the key conclusion that can be drawn from our conversation with the SRA is that the mitigation of risk and compliance with the rules of the receiving organisation are the most important factors when deciding whether to witness a document virtually. The next question to consider is what this looks like in terms of practical steps.
What Does This Mean For You?
When deciding whether or not you are able to witness a document virtually, we suggest the following:
Find out where the document is being sent, e.g. Companies House. That organisation should have guidance on their website confirming whether it can be witnessed online, or whether physical attendance is required. The SRA agrees, stating
[Solicitors] need to check with the body requiring the document if it is happy for them to witness the document remotely.
If there are other solicitors involved in the case, it is good practice to speak with them before witnessing virtually to make sure they are happy.
Consider if you want to take extra steps to verify the identity of your clients beyond your usual AML checks. You may even want to keep a recording of the meeting on file as evidence.
Make a file note with an accurate record of how the document has been witnessed. When you are making a judgment call, you should keep a clear note of the reasons for your decision, and how you have interpreted the rules and handled any risks to the clients.
Our response from the SRA does go on to caution that where vulnerable clients are involved, it would be wise to err on the side of caution to make sure there they are not being subjected to any undue influence. In these cases, they recommend that you see clients in person to witness documents so that any risk can be assessed.
The Law Society has some helpful advice on how to handle specific document types in their Practice Note, “The Execution of Documents by Virtual Means”.
This is an area that is constantly in flux and, indeed, The Law Commission has recently recommended a formal review. It is hoped that the law on electronic signatures can be codified to ensure simple, fair access to legal support. That is something that the team here at Lawhive are excited to be a part of.
We are seeing a rise in clients from all over England & Wales wanting to speak to a solicitor online for convenience and speed. Our platform conducts identity, AML and Know Your Client checks on every client onboarded via an SRA-compliant verification technology, saving you valuable time to focus on the legal work.
Lawhive carefully selects the solicitors who work through our platform to ensure they meet our high standards and they earn on average £80,000 of new billables per year. To find out more and apply to join our network, click here.