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Mobile Commissioning

Delegation and Supervision Responsibilities, Risks, and Practice Tips for Lawyers

In response to client demands for more convenient access to legal services and reduced legal costs, some lawyers are delegating the task of meeting with clients to sign or commission documents to non-lawyers. When this occurs outside lawyers’ offices, the practice is known as mobile signing or commissioning.[1]

Mobile commissioning is different than remote or virtual commissioning. With remote commissioning, the commissioner (lawyer or non-lawyer) uses web-based video technology tools and platforms to commission documents. In other words, with remote commissioning the commissioner is not physically in the presence of the deponent at the time the oath or declaration are administered. For additional information about and guidance on remote commissioning, lawyers should consult the Law Society’s Remote Commissioning resource.

This resource reviews the professional responsibilities of lawyers engaged in mobile commissioning.  It reminds lawyers of their obligations when delegating work to and supervising non-lawyers, identifies the risks associated with delegating mobile commissioning services to a non-lawyer, and provides some practice tips to help lawyers manage these risks. [2]

Complying with Professional Responsibilities: Delegation and Supervision

Before assigning tasks or functions to a non-lawyer in connection with the lawyer’s practice, the lawyer must

  • Assess if the task is one that can be delegated, and
  • Ensure the non-lawyer to whom the task will be delegated is competent to perform the task.

Once the lawyer decides to delegate a task to the non-lawyer, the lawyer must

  • Provide express authorization and instruction and ensure that the non-lawyer does not act without the lawyer’s instructions

  • Continue to assume responsibility for the delegated task, including maintaining a direct relationship with the client, and

  • Directly supervise the delegated task, including reviewing the non-lawyer’s work at frequent intervals to ensure proper and timely completion.

Chapter 6 of the Rules of Professional Conduct (the “Rules”) and Part I of By-Law 7.1, Operational Obligations and Responsibilities outline the specific obligations placed on lawyers who delegate legal work to others.

Recognizing the Risks of Delegating Mobile Commissioning Services to Non-Lawyers

Engaging non-lawyers to deliver mobile signing or commissioning services gives rise to a number of professional responsibility and practice management risks. These include, but are not limited to, the following:
  • Unauthorized practice of law or provision of legal services. Lawyers have a duty to assist with preventing the unauthorized practice of law or provision of legal services (Rules, r. 7.6). Where a lawyer engages a non-lawyer to provide mobile signing or commissioning services, there is a risk that the non-lawyer will provide services that only the lawyer is authorized and skilled to provide (e.g., giving legal advice to a client about their legal interests, rights, and responsibilities associated with the documents the client is being asked to sign).

  • Inadvertent disclosure of confidential information. Some non-lawyers may be less attuned to issues of confidentiality than lawyers and, depending on where or how the mobile signing or commissioning services take place, confidential information may be inadvertently disclosed (e.g., if commissioning takes place in a public location).

  • Failure to recognize undue influence or duress. Non-lawyers may be less alert to undue influence or duress in clients who are signing documents than lawyers. Not recognizing such issues may impact on the legal effect of the document(s) signed.

  • Inadequate delegation or supervision. Depending on the lawyer’s practice, the lawyer may not have the time or resources to comply with their duties to appropriately delegate to and directly supervise each non-lawyer engaged in mobile signing or commissioning services.

Managing the Risks of Delegating Mobile Commissioning to Non-Lawyers

Lawyers are encouraged to be available any time a client is signing documents. Where this is not possible, lawyers should consider whether delegation is appropriate in the circumstances. If delegation is appropriate, lawyers should consider implementing the following practice management strategies to reduce the risks associated with non-lawyer mobile signing or commissioning:

  1. Document the working relationship with non-employees. Where the non-lawyer is not the lawyer’s employee, the lawyer should consider clearly documenting the working arrangements in writing. Among other things, the document may outline the scope of services to be provided by the non-lawyer, the manner in which instructions and supervision will be provided, and the required measures to protect client confidentiality.

  2. Prepare policy and process documents, and offer training. Lawyers may consider developing policy documents that outline what non-lawyers should do and refrain from doing when providing mobile signing or commissioning services. Such documents may outline steps that non-lawyers should take, risks to which the non-lawyer should be alert, and any considerations to manage these risks. To ensure these documents are understood, consider providing training on them or opportunities for non-lawyers to ask the lawyer questions.

  3. Prepare written instructions. A lawyer should provide clear instructions to the non-lawyer regarding the specific delegated task.  If not covered in a general policy or process document provided to the non-lawyer, instructions should include answers to important questions that may arise at the signing meeting with the client, including:

    • How the non-lawyer commissioner should answer general inquiries from the client (e.g., what the document or its legal effect is, what will be done with the document, etc.)

    • How to reach the lawyer if support is required at the signing meeting and what steps to take if the lawyer is unavailable or cannot be reached

    • What steps the non-lawyer commissioner should take if he/she feels the client is being pressured to sign the document

    • What the non-lawyer commissioner should do if he/she has a safety-related concern or is unsatisfied as to the identity of the person signing the document

  4. Explain the working relationship to the client. As part of a lawyer’s duty to maintain a direct relationship with each client throughout the retainer, lawyers should inform clients about the scope of services to be provided by non-lawyer commissioners. Lawyers should also review and explain to clients the legal effect of all documents that the clients will be signing in advance of the signing meetings. To manage risk, lawyers should consider documenting these explanations in writing.

  5. Require the non-lawyer commissioner to document and report on the meeting. Lawyers should consider requiring non-lawyer commissioners to report to the lawyer about the signing meeting, including any issues identified or inquiries made by the client. The lawyer should ensure that all issues and questions are appropriately addressed with the client and documented in the client’s file.

Lawyers who have further questions about their professional obligations related to the delegation and supervision of mobile signing or commissioning to non-lawyers may wish to contact the Practice Management Helpline. To do so, call the Law Society at 416-947-3315 or 1-800-668-7380, ext. 3315 and ask to be connected to the Helpline. The Helpline is available Monday to Friday, 9:00 am – 5:00 pm EST.

[1] The Law Society of Ontario does not regulate the commissioning of documents. Lawyers should review the Commissioners for taking Affidavits Act for more information about their obligations related to commissioning.

[2] This resource has been prepared to assist lawyers with complying with some of their professional obligations with respect to delegation and supervision. Lawyers should refer to the actual Rules and By-Law 7.1 to determine the full extent of their obligations.

Additional Resources

Commissioners for Taking Affidavits
Remote Commissioning
Notary Public

Terms or Concepts Explained