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CCCA_V2No3_Privilege-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 9/18/08 5:02 PM Page 20 Cover the same sorts of threats posed in other jurisdictions, her approach e-mail message — especially after commenting on it — that’s like- — and her advice to other corporate counsel — is to have “solid ly a waiver of privilege, says Fraser. “The only way to control that is practices in place to make sure you’re not exposed.” to say very clearly in the subject line at the top of the message, ‘Please don’t distribute or forward without speaking with me.’” Training and communication The role of in-house counsel is often one of training the com- Chief among those “solid practices” is cultivating good internal pany’s employees and officers on what privilege means in simple communication templates and habits. terms. In addition to briefing people on proper e-mail, note-tak- Separating legal and non-legal files — even minutes from the ing and filing protocols, Fraser suggests corporate counsel should same meeting — is standard practice. Privileged material should post a definition of privilege on the legal department’s intranet be stored separately from the rest of the company’s documents. As and regularly explain at meetings the concept — including the well as labelling legal documents “Privileged and confidential” or fact that writing “P&C” on a document does not automatically “Prepared for in-house counsel for the purpose of providing legal make it privileged if the content is not legal advice. advice,” in-house counsel should preface written documents with The role of in-house counsel also extends to media training. their legal purpose, and use legal department letterhead rather “If an executive says to the media something to the effect of, than the general corporate letterhead. ‘Our legal advice is as follows,’ or ‘Our lawyer told us we can’t And then proceed wisely. “If you put ‘P&C’ on a document and do this,’ or ‘Our lawyers told us to do this,’ they’re waiving priv- then send it to the entire firm of five or six thousand people across ilege,” says David Byers, who heads up Stikeman Elliott LLP’s the country, it’s unlikely that it will be accorded solicitor-client Toronto litigation practice. privilege,” says Sahagian. “So be very focused on who you’re giv- “I think it’s part of the responsibility of corporate counsel to ing it to. Make sure that [those individuals] have a need to know educate executives on how to respond to questions where the the information based on making a management decision, and company’s course of action has been dictated to some extent by that they are actually looking to you to provide them legal advice legal advice. That’s tricky for lawyers to do, let alone non-lawyers.” on that management decision. You have to be very careful.” If the company’s actions are questioned, says Byers, “then the Counsel should also include headers and footers on all corporate appropriate response would be, ‘When we discovered that there legal communications, including e-mail messages, inter-office mem- was an issue, we acted prudently by retaining legal counsel, either orandums and PowerPoint presentations. If a client forwards an internal or external, to assist us in assessing the situation. And after David Byers Stikeman Elliott LLP, Toronto “ It can be a difficult task for the corporate counsel to assess how much effort he or she should be taking to maintain corporate privilege — especially ” under the gun. MARK STEGAL 20 CCCA Canadian Corporate Counsel Association FALL 2008