Lawyer disciplined for allowing staff to use his password to access electronic land registry
In Dhindsa (Re), a Hearing Panel on Disciplinary Action of the Law Society of British Columbia presided over a disciplinary hearing for a lawyer who had engaged in irregular practices relating to access to the province’s electronic land registry system. Specifically, as had been found at an earlier hearing, he had disclosed his password to “Juricert” to his staff, which allowed them to affix his electronic signature to documents that were filed with the Land Title Office. There were two or three documents that had to be signed on each file, and staff testimony indicated that they had used the lawyer’s password anywhere from several hundred to a thousand times, between 2012 and 2015. The Law Society sought a suspension of the lawyer and costs, while the lawyer argued that a fine of $10,000 would be more appropriate.
The Panel made some interesting remarks about the ethical duties of lawyers regarding access to encrypted electronic systems generally and land registry systems specifically:
[15] In our earlier decision we noted at paras. 61 to 63:
The BC Code provides at section 6.1-5:
A lawyer who has personalized encrypted electronic access to any system for the electronic submission or registration of documents must not
- permit others, including a non-lawyer employee, to use such access; or
- disclose his or her password or access phrase or number to others.
The commentary in the BC Code applicable to section 6.1-5 states:
[1] The implementation of systems for the electronic registration of documents imposes special responsibilities on lawyers and others using the system. The integrity and security of the system is achieved, in part, by its maintaining a record of those using the system for any transaction. Statements professing compliance with law without registration of supporting documents may be made only by lawyers in good standing. It is, therefore, important that lawyers should maintain and ensure the security and the exclusively personal use of the personalized access code, diskettes, etc., used to access the system and the personalized access pass phrase or number.
…
(b) In 2010, a Law Society hearing panel issued the decision Law Society of BC v. Williams, 2010 LSBC 31, in which they emphasized the importance of lawyers complying with the execution and electronic submission provisions of the Land Title Act, which were important safeguards of the integrity of the land title system. The panel stated as follows at paras. 12 and 13:
Both the execution provisions under Part 5 of the Land Title Actand the electronic submission provisions under Part 10.1 are important safeguards of the integrity of the land title system in British Columbia. As officers under the Act, members of the legal profession play a key role in ensuring the integrity of transfer documents and safeguarding the system from fraud.
Given the importance of the role played by lawyers who act as officers, conduct related to the electronic submission of improperly executed documents must be viewed as serious. In this case, the executed paper copy of the Form C release was not registrable because, on its face, it had not been witnessed by an officer. The Respondent overcame this impediment to registration not by obtaining a properly executed document, but by incorporating his electronic signature and inserting his name under the signature space for the officer, then submitting an electronic version.
[16] Paragraph 14 from Williams is also worth noting:
No financial harm ensued because the document was a release of a builders lien claim and was apparently properly authorized by the corporate claimant. However, the submission of documents that are defective in their execution harms the land title system by eroding the reliability and authenticity of documents submitted for registration. Further, because the officer does not submit the originally executed document when an electronic document is submitted for registration, the defect is not apparent, and the Land Title Office cannot scrutinize the original document to ensure its registrability
[emphasis added]
[17] We also noted in our reasons several publications from the Law Society pointing out that it was an offence to disclose ones Juricert password and that the integrity of the Land Title registration system depended on lawyers not sharing their password.
Noting that the Society’s main function is regulating the profession in the public interest, the Panel added:
[32] We have noted above the importance the profession plays in the use of electronic documents. As gatekeepers of the land title electronic registration system, lawyers must use that authority ethically and responsibly. The public depends on the profession to ensure the reliability and authenticity of electronically filed documents.
The Panel took into account that by having his staff carry out tasks that he was supposed to do, the lawyer reduced the amount of time he would have spent in the office on such administrative work, and correspondingly reduced his own workload, possibly benefiting his “very busy conveyancing practice.” On the other hand it was clear that the lawyer’s practice had been harmed by the proceedings, as some banks were refusing to deal with him and he had experienced a decline in business. In the result, the lawyer was suspended from practice for 4 months and had an order of costs imposed on him.
