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CCCA_V5No4_FightClub-FIN_CCCA_V5No3_Metrics-V1.qxd 11/20/11 10:54 PM Page 35 Feature individuals, need privacy in order to seek and obtain legal advice shown that corporate counsel is now doing more and more non- and they have the same interest in this respect as everybody else. legal work; the good corporate counsel is corporate counsel who Without the assurance of the zone of privacy, of confidentiality is involved in strategy and who knows the business of their client. and protection of the privilege, corporations will simply not seek One of the great challenges we have is unravelling legal advice legal advice and this will not be in the broader public interest. from the business advice and I would say that stripping the cor- Lastly, the concern to eliminate the privilege for corporations is poration of its right to solicitor-client privilege is only going to really overkill; it will not just eliminate the privilege for corpora- put it on par with other essential parts of business advice that cor- tions, it will effectively eliminate the privilege for everyone else porations need — financial, marketing and technology. because a large part of legal activity and legal advice is channelled My last point is about access to justice, I think it is offensive to through corporations. notions of access to justice to try and claim that solicitor-client Providing a privilege for government,fundamentally helps pro- privilege is about access to justice. It is about people who cannot mote the rule of law within government because government can afford to hire a lawyer; it is not about the fear of something they then obtain legal advice, as everybody else, and organize public might say will be disclosed.The idea that [privilege] is an access to policy and the development of public rules in compliance with justice issue for corporations and government, I think, is inimical the law.That is, surely, a fundamental interest of all Canadians. If to the serious access to justice problem that we have in Canada. transparency is the object, the appropriate role is one of selective waiver — voluntary waiver,which is really a political decision and not a legal one. Round 2 Be it resolved that the solicitor-client privilege should be Rebuttal: Dodek: extended to non-lawyer professionals, including paralegals. I have three points in response. We really have this idea that government could not function Dodek: without the cloak of solicitor-client privilege. I really find it quite [W]e like to say that the law is a jealous mistress.Sometimes I think fanciful. If you take that argument seriously and say that govern- the law is just plain jealous or insecure! And I would say: do we ment lawyers and civil servants who have a duty of loyalty as pub- think so low of ourselves as a profession that we fear extending the lic servants would not be able to fulfill their duties, which are rec- same rights to our clients if they consult with another professional ognized as constitutional conventions, without the protection of legal adviser and sadly, I fear this is often the case because it is not the privilege. I think that is, actually, offensive to public servants for nothing that the solicitor come first in solicitor-client privilege. and to government. Too often we lose sight of the fact that the privilege is about On the idea of leaving it up to voluntary and selective waiver, I the client. [W]e are the last major jurisdiction in the world that would just say that is not a part of our history or culture in Canada. calls it solicitor-client privilege. In the U.S., of course, it is attor- On the second point about corporations, recent studies have ney-client privilege, but everywhere else in the common law HIVER 2011 CCCA Canadian Corporate Counsel Association 35