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CCCA_V2No3_Privilege-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 9/18/08 5:02 PM Page 17 Cover Solicitor-client privilege in the corporate environment was difficult to pin down at the best of times — and recent rulings from Europe and the U.S. have made it even more tenuous. Here’s the latest on privilege for corporate counsel, including insights on how to keep it — and how to lose it. a question of privilege very e-mail sent. Every voicemail left. Every meeting who are in-house act for one client and one client only, not sever- convened. Every report issued. Every memorandum al,” says Ann Marie McDonald, a partner with McInnes Cooper’s Edrafted. Every casual (or not so casual) conversation, Fredericton office. In reality, however, privilege was developed on team-building exercise, media briefing, spreadsheet, and every the model of an individual client consulting an individual lawyer. single piece of paper to be filed. And that model by no means translates seamlessly into the corpo- These days, in-house counsel are telling their corporate col- rate context, where counsel is an employee of the client. leagues what the Police once sang: “I’ll be watching you.” Today’s law department is viewing any and all instances of business com- Significant global rulings munications as potential landmines of disclosure. Exhausting as it The corporation — not its constituents — is the client of in- might be, constant vigilance is part of the job description when house counsel. And that can give rise to potential for conflict, it comes to preserving corporate privilege. especially in the event that those constituents seek advice from Many would argue that that job is getting tougher. In the United counsel that may run contrary to the corporation’s interests. States, scandals like Enron and WorldCom have fuelled assaults on How and where to draw the line between the interests of the privilege and demands for increased corporate transparency. company and the interests of its officers or directors is a poten- Court decisions in the U.S. and the European Union have tial conundrum for a company’s legal officer. threatened, or even outright revoked, solicitor-client privilege for “Where the line is, I don’t know,” says Raynold Langlois, a in-house counsel, while the ease and ubiquity of e-mail means partner in the Montréal office of Langlois Kronstrom Desjardin. that privileged documents can be copied and forwarded — and “It’s a case-by-case matter. As soon as in-house counsel perceives privilege inadvertently waived — with a single keystroke. For all that there may be a conflict of interest between the officer and these reasons, it’s easy to see why the issue is top of mind for the corporation, that person would be wise to obtain or hire out- Canadian in-house counsel. side counsel to advise the director.” Solicitor-client privilege — the longstanding pillar of the legal “I am told by in-house lawyers that they bear in mind all the profession that ensures, according to the Supreme Court of time that they are first and foremost officers of the court — and Canada, “full, free, and frank” discussion between clients and their that’s the standard by which they will be judged,” says McDonald. lawyers — is supposed to apply to all client-lawyer relations. “Could that, on occasion, collide with business interests and the “In terms of privilege, the only difference should be that lawyers instructions of your employer? Potentially.” ROB BLANCHARD By Susan Goldberg AUTOMNE 2008 CCCA Canadian Corporate Counsel Association 17