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CCCA_V5No4_FightClub-FIN_CCCA_V5No3_Metrics-V1.qxd 11/20/11 10:50 PM Page 34 Feature In the ring were: really about fulfilling the individual’s right to counsel. For the affirmative: Adam Dodek, associate professor in the Individuals have a right to counsel, they also have a privilege Faculty of Law, University of Ottawa, and author of a discussion against self-incrimination and the essence of solicitor-client priv- paper commissioned by the CBA on solicitor-client privilege. ilege is to allow an individual to exercise both those rights. If we For the negative: Mahmud Jamal, partner at Osler, Hoskin & did not have solicitor-client privilege, an individual would be Harcourt LLP. forced to choose between having the right to counsel or protect- The debate was moderated by Paul Paton, then chair of the ing their right against self-incrimination. Having that privilege and CBA ethics and professional responsibility committee and a pro- having the individual control the right to confidential communi- fessor of law at McGeorge School of Law, University of the cations with their legal adviser, allows that individual to exercise Pacific in Sacramento, CA. autonomy and to protect their dignity as a human being. Understood properly as a human right, the privilege makes no sense when applied to non-human entities. To me, saying that gov- Round 1 ernments and corporations enjoy a constitutional right to solicitor- Be it resolved that solicitor-client privilege should not be client privilege makes as little sense as saying corporations have a available to corporations or government. right to equality or governments have a right to freedom of speech. In the name of humanity and all that is holy, we should strip Adam Dodek: organizations of the right to claim solicitor-client privilege and I sort of feel like an apostate in the temple of the legal profession, reserve the most sacred of protections for the most sacred of but what I hope to convince you today is that the view that I beings: humans. espouse represents the true faith in terms of solicitor-client privi- lege and that we, as a profession, have strayed from that true faith. Mahmud Jamal: We have lost sight of the true meaning and purpose of solici- There are three points I will give in response. tor-client privilege. It was created in order to protect the pow- The first is that the foundation or the premise of Adam’s argu- erless, not to further strengthen those with power.The privilege ment is wrong, with respect. It is true, corporations are not natural was recognized in order to allow vulnerable persons to seek persons — they are not humans, but the privilege has been articu- expert legal advice.It was not created in order to help those who lated and defended as being more than just an individual right; it exercise power, whether in the public sphere or the private stretches beyond the parties and is integral to the operation of the sphere to hide behind the protection of the privilege. legal system. The modern rational of the privilege is one of a sys- In Canada, we have now largely constitutionalized the privi- temic interest — a systemic principle for the functioning of the lege. I think that the best way to understand the privilege as a legal system itself and corporations are just as essential for the func- constitutional right is part of the individual rights to privacy, to tioning of that legal system. autonomy and to dignity.The privilege, properly understood, is My second point is that corporations like humans — like CARLOS AMAT 34 CCCA Canadian Corporate Counsel Association WINTER 2011