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CCCA_V2No3_Privilege-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 9/18/08 5:02 PM Page 19 Cover tantamount to showing it to a third party.” A lawyer’s obligation to distinguish between legal and business In light of the decision, Canadian corporate counsel — espe- advice, in fact, has been elevated to an ethical duty in Ontario. cially those with parent companies based in Delaware — might When in-house counsel is asked for legal advice as part of a team, want to consider whether non-committee board directors have says Fraser, it’s important to document that advice in such a way been or could be named as individual defendants in litigation, and that it is not merged or confused with the non-legal aspects of how best to transmit the information in light of potential conflicts. the meeting. “It’s much easier to deal with two sets of notes than it is to deal with a redaction after the fact, when meeting content Advise with caution is documented into one set of minutes.” Potential for conflict is also heightened by the fact that in-house With so many business meetings taking place virtually, Fraser counsel are as likely to be consulted for their business acumen as points out the importance of reminding colleagues at the other end they are for legal advice. Often, the lines are blurred. of the phone line or WebCam about the need to segregate their legal “For a company like Xerox that really values cross-functional and non-legal notes. “It’s really good to say at the outset of the meet- experience, you might play a role on a team where your input is ing, ‘I’m assuming that some of you are going to be taking notes, so going to be a hybrid of legal and non-legal advice,” says Sacha let’s talk about the protocol for taking and storing those notes.’” Fraser, senior counsel with Xerox Canada in Toronto. “As an out- Even the ubiquitous Excel spreadsheet — a handy device for side counsel, things are just so much more clear-cut. Everything is gathering and analyzing business data on a given topic — is risky. privileged, essentially. Internally, you’ve got to be very clear on Be wary of contributing legal input to spreadsheets, says Fraser: what hat you’re wearing, especially when it switches in the course “If you had asked me in private practice, I would never have of one meeting. thought about this. But in a business setting, it occurred to me “I learned very early on that you have to set expectations at the pretty early that it was a dangerous practice to have legal input outset when you join a team or a committee that you’re their commingled with business data in an Excel spreadsheet. To the counsel,” she notes. “And that might mean taking a separate set of extent that it contains legal advice, the legal column should be in notes, depending on whether you’re speaking to legal issues or a separate document.” speaking to corporate issues over the course of the meeting.” While Fraser doesn’t believe that privilege in Canada is under “ For a company like Xerox that really values cross- functional experience, you might play a role on a team where your input is going to be a hybrid of legal and non- ” legal advice. MARK STEGAL ALENA GEDEONOVA Sacha C. Fraser Senior Counsel Xerox Canada, Toronto AUTOMNE 2008 CCCA Canadian Corporate Counsel Association 19