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CCCA_V7No1_Dept-Ethics-FIN_CCCA_V6No4 2/12/13 3:12 PM Page 12 Ethics Privilege and confidentiality: What’s black and white and grey all over? CCCA-CBA committee develops FAQs to help in-house counsel navigate tricky terrain. By Kim Covert he company for which you are in- difference in the kinds of Thouse counsel was caught up in concerns faced by the two what PWC Canada calls the country’s groups. “Understanding “gravity-defying” M&A activity. You the boundaries of in-house kept your job as corporate counsel, but counsel is complicated in what do you say when the new own- that context,” because the lines between it does not exist,” says Jean Nelson, a mem- ers ask for information that was part of legal and business advice, as well as be- ber of the advisory group who is also privileged communications between tween privilege and confidentiality, are involved in preparing a webinar on the you and your former employer? Does easily blurred. topic.The FAQ addresses the idea that com- it belong to the new owner? Confidentiality is not discretionary — munications between Canadian in-house What if you know your company is it’s a duty owed by lawyers and covers counsel and European subsidiaries may not committing fraud that is likely to cause every piece of information acquired in be protected by solicitor-client privilege. injury to another’s financial interests? Can the course of an in-house counsel’s job, “I cannot speak for all, but another fre- you — should you — blow the whistle? no matter the source, the FAQ explains. quent concern is when in-house wear Good questions.In fact,they’re among 22 There are some exceptions to the duty of several hats in addition to in-house legal addressed in a FAQ for in-house counsel confidentiality, which may vary depend- and where are the parameters of the priv- about privilege and confidentiality prepared ing on the jurisdiction. ilege in those instances,” adds Nelson, by the CCCA and the CBA’s Ethics and Solicitor-client privilege is more strict- director, governance and legal services at Professional Responsibility Committee. ly defined as communications between the Canadian Medical Association. After preparing a popular FAQ on the the counsel and the client for the purpose Because they do quite often fill several topic for private counsel in 2010,the com- of legal advice. This privilege exists in roles within their organizations, in-house mittee decided to turn its attention to the common law and there are only a few, counsel have to be more careful than pri- specific issues faced by corporate counsel narrow exceptions to it. vate counsel about what they say, to going about their day-to-day duties. While the definitions of confidentiality whom it’s being said and which hat The questions were derived in part and privilege are fairly black and white, they’re wearing while they say it. from the group’s previous work, in part there are many areas of grey — the FAQs “For in-house counsel, the client is the from discussions in the working group quite often advise counsel to consult the sole client — subject to subsidiaries and and also from jurisprudence in the area, as legislation in their jurisdiction, do further affiliates — and there is a tendency toward well as debates on the topic. research or seek guidance applicable to informality in discussions that blur the “Unlike external counsel, it is not their own situation. lines of confidentiality and privilege,” uncommon for in-house to be both busi- When it comes to privilege and confi- says Mercer. ness and legal adviser,”says committee chair dentiality, the biggest concern of in-house “Just because you are in-house does not ISTOCKPHOTO.COM Malcolm Mercer,a partner with McCarthy counsel is, “losing it… especially in the mean everything you say or do with a Tétrault in Toronto, underlining a crucial wake of European case law which confirms client is privileged,” Nelson adds. 12 CCCA Canadian Corporate Counsel Association SPRING 2013