October 2, 2015

Failure to protect digital signature can have disciplinary consequences

October 2, 2015

Juricert is the certification authority operated by the Law Society to reduce the risk of title fraud and to ensure the integrity and security of the Land Title Act’s electronic filing system.

Juricert provides lawyers with password-protected digital signatures to file land title documents electronically under Part 10.1 of the Land Title Act. One of the terms and conditions of Juricert registration is the obligation to maintain the security of the digital signature. In addition, section 168.9 (b) of the Land Title Act makes it an offence if a person “incorporates the electronic signature of another person into an electronic application, electronic instrument, electronic plan application or electronic plan.”

Aside from the increased risk of fraud, failure to comply with Juricert terms and conditions could result in:

• loss of the right to file land title documents electronically; and
• disciplinary action by the Law Society.

Juricert terms and conditions

To obtain a digital signature, subscribers must agree to the Juricert terms and conditions and enter into a covenant to prevent any third party access to the digital signature. Clause 11 of the terms and conditions states:

You shall: covenant to take all reasonable steps to prevent any third party access to any software application that relies on your Trusted Digital Credentials to establish your identity. Such reasonable steps shall include at a minimum, maintaining in strict confidence any password that limits access to the software application, restricting access to the computer on which it is installed and turning off or disabling any such software application when you are not in attendance or making use of it. In addition to the foregoing you agree to maintain in strict confidence any password (including any challenge question and response) used to establish your identity in communications with Juricert.

Law Society Rules

Law Society Rule 3-64(8) states:

(8) A lawyer may make or authorize the withdrawal of funds from a pooled or separate trust account by electronic transfer using the Electronic Filing System of the Land Title Branch for the purpose of the payment of Property Transfer Tax on behalf of a client, provided that the lawyer …

(b) digitally signs [through Juricert] the Property Transfer Tax return in accordance with the requirements of the Electronic Filing System …

Code of Professional Conduct for BC

BC Code rule 6.1-5 prohibits lawyers from permitting others to use their personalized encrypted electronic access to register documents or from disclosing to others the password, access phrase or number. In addition, commentary [1] in rule 6.1-6 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 transactions. 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.

Conduct reviews ordered

Lawyers who fail to take appropriate steps to protect the security of their digital signature, or allow others, such as assistants or paralegals, to use the signature, may face an investigation and potential disciplinary action by the Law Society. Two conduct reviews were recently ordered to address such conduct. In one case, a lawyer improperly shared a password with a conveyancing assistant, who then used it to apply the lawyer’s digital signature to documents submitted to the Land Title and Survey Authority (CR 2014-19). In the other case, a lawyer provided an assistant with a password to allow the assistant to affix the lawyer’s digital signature when discharging a mortgage (CR 2015-13).

Lawyers are reminded to keep their passwords confidential, including from support staff. Conduct reviews form part of a lawyer’s professional conduct record and can be considered by a hearing panel should any future discipline violations be proved against the lawyer.

Double-check your password protection

In rare cases, the digital signature may have been installed on a lawyer’s computer in such a way that affixing the digital signature to an electronic document does not prompt for a password. The system is designed to require password entry each time the lawyer signs an electronic document. If you are not prompted for a password each time, please call the Land Title and Survey Authority.

For more information on Juricert services or the security and use of digital signatures, contact a Law Society practice advisor or refer to the following Benchers’ Bulletin articles:

• Lawyers who authorize others to affix a digital signature for land title documents risk discipline (Fall 2012);
• Lawyers will be required to e-file LTO documents starting January 2012 – Are you ready? (Spring 2011);
• Electronic signatures on land title documents (May 2007).