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CCCA61_032-034,036-038.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 02/07/2008 06:12 PM Page 36 Feature In the Enron debacle, there were at least two examples of “If you’re put in the position as general counsel where you have in-house lawyers attempting to exercise professional independ- to rely on outside law firms to make your point,because the organ- ence. In one, a junior in-house counsel sent a memo to the chief ization is not listening to your advice, that’s not a comfortable legal counsel to draw attention to a series of inappropriate trans- situation to be in as a lawyer,” says Paton. “That said, in some cir- actions.That was dismissed.A junior counsel also sought the opin- cumstances, having the opinion of a respected outside law firm can ion of an outside NewYork law firm to buttress his own advice. be very useful in making the case to people who might be sceptical.” “Sometimes, the best way to deal with a difficult situation,” says Armour,“is to say to the CEO, or even to the board,‘This is Duty of confidentiality an area where I believe we need to have outside counsel to give Lawyers’ codes of conduct in Canada and the U.S. stipulate a us a second opinion.’ Frankly,it’s a bit of a safety valve for the in- clear duty of confidentiality to the client. house counsel if they find themselves in a very tricky situation.” For example, the Law Society of Upper Canada’s Rules of Professional Conduct state:“A lawyer owes the duty of confidentiali- ty to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional rela- tionship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.” Accordingly, even when a corporate counsel has been fired and brings a wrongful dismissal action against her former employer, a duty of confidentiality continues. That duty of confidentiality does not mean, however, that everything the organization tells the lawyer is in the nature of solicitor-client conversations.Often,in-house counsel are consult- ed not only for their legal advice,but also for their business advice. “Whatever information is provided to you in the performance of your work as a lawyer will most likely be protected,” says Laurin.“Whatever else you do that has nothing to do with your work as a lawyer is not protected. But there remains the obliga- tion of confidentiality.” Laurin notes that if in-house counsel attend a meeting where officers of the company disclose sensitive information, solicitor- client privilege will not apply if other persons (for example,outside directors) are also present.Those other parties can be compelled to reveal in legal proceedings what they’ve been told. “So for the in- house counsel,it could be delicate,but not necessarily as delicate as it appears.” Nevertheless, says Armour, “It’s always important that you educate those you work with in-house — the executive team, staff, board members — if you wear a business hat in addition to your legal hat.The more senior you are in the corporation, the more important that becomes.” In some situations, in-house counsel may have to preface con- versations with others in the organization by indicating that the comments she is about to make constitute business, not legal, advice and would therefore not be protected.The in-house lawyer should also reflect this in the way documents are filed. “You should keep legal and non-legal materials separate,” says Armour.“Where practical, you should also try to label commu- nications. If the communication is particularly sensitive,I will put LOURENDA MASTRAMONACO Anne Giardini General Counsel that in caps on the subject line of an e-mail. I do that to alert the Weyerhaeuser Canada Co. Ltd., Vancouver recipient that this is very sensitive. You should also make clear in 36 CCCA Canadian Corporate Counsel Association SPRING 2008