Digital Signing of Documents for Business Lawyers

  • May 07, 2022
  • Kathleen Robichaud

Many of us have become comfortable with remote and digital signing.  Some of us even believe that there are only the oddest of people left in the world who thinks that paper is even necessary. This is not the reality though. People are still using wet ink signatures.  Documents are still being created. Some of them are being authenticated - paper documents that is - and most of us still need to deal with that reality even those of us who think it pure insanity.

So, while remote and digital signing can simplify things, they can also complicate things.  For example, they are not one and the same.  They can be, but I recall the maxim that a square is a rectangle, but, a rectangle is not a square. It is also possible to have an in-person meeting where everyone signs documents digitally.  It is also possible to meet remotely, but not have anything signed digitally. Remote signing does not mean that a digital signature was or must be obtained.  With remote signing, it is still possible to have documents that are signed with wet ink signatures.  

There are questions we should be asking and considerations we need to keep in mind with any method of signing. In relation to digital signing and remote meetings, the questions include:

1. Is an in-person meeting required?  Perhaps the Lender, who is coming up with all of the money, requires in person identification of the client and will not be satisfied with a video meeting.  Perhaps there are concerns you have, suspicions of fraud for example, about a party that make you think that you need to meet with your client or that the other lawyer needs to confirm having met with the other lawyer’s client in person to be satisfied that your concerns are without merit or to determine that they are with merit and decide on next steps.

2. Are there reasons that a pen and ink signature is required?  Perhaps one of the parties like the Lender, is alright with a video meeting, but still wants a wet ink signature on a hard copy of the document for themselves or confirmation from you that you have one.  Perhaps you are being assigned an HST rebate and have not yet heard CRA say that it will accept a digitally signed HST assignment, and you do not wish to be on the hook for multiple $25,000.00 plus in HST for your client who gets denied a rebate on audit because you accepted digitally signed documents on your client’s behalf. Perhaps something you are working on needs to travel outside of the country and go through an authentication and legalisation process where, to my knowledge, there is no option for virtual signing.  Perhaps your client is of the view that paper documents are more secure than ones produced only in digital form.

3. Is your client able to meet with you remotely?  There are regions in this country where remote signing is a challenge at best.  There are also people who are not comfortable with remote meetings or digital signing who are paying your bill.

4. Is your client able to sign digitally?  Some people only have access to computers with security features they either cannot change or do not know how to change and so this feature is blocked.  If it is sufficiently important to you to work only with digital signatures, consider learning the difference between the two and how to walk your client through changing the settings if your client has control of them as opposed to their employer’s IT department for example.

5. Can you use remote and/or digital signing securely?  Do you have adequate computer security in place to ensure you are not exposing your own technology to viruses or other forms of cyber-attack which can increase each time you use a remote or digital method of service?

6. Do you have a way of delivering electronic documents?  Do you have a secure means to deliver important and confidential documents?  Can the other party receive and process the documents as in open them and sign or print them and return them?  Not everyone has printer.  And not everyone can receive and/or open attachments.  Note also that you should assume that your regular email account is not a very secure method of communicating.

7. Have you considered timing?  Just because you are sending things electronically, and/or meeting remotely, you should continue to consider whether the documents can be processed in the time frames they need to be by the method of delivery you have chosen.  There is a tendency to assume that because things are sent digitally, or meetings are remote that it will and always will be instant.  That may not be the case.  It may be something like a power outage that thwarts your plans. It may be a corrupted file. It may be that as it turns out the internet got disconnected or was not set up on schedule.  These things happen.  It is useful to have a back plan.  The digital world is not perfectly reliable.

About the author

Kathleen Robichaud is a sole practitioner practising in Manotick Ontario in the areas of Wills & Estates; Business/Corporate Law and Real Estate. She is the past Chair of the Business Law Section of the Ontario Bar Association and a generally active member of the Ontario Bar Association and of the County of Carleton Law Association.

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