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CCCA_V7No1_Dept-Ethics-FIN_CCCA_V6No4 2/12/13 3:14 PM Page 13 Ethics For example, “privilege does not may well be that solicitor-client privilege when a “deal team” made up of individu- extend to advice regarding purely busi- does not exist yet the Law Society code als with specialized expertise is formed to ness matters even if that advice is obtained will prohibit voluntary disclosure.” negotiate a transaction; what happens to from legal counsel,” the FAQs note. Furthermore, the current Model Code privilege when an in-house lawyer is Another area where the waters can be of Professional Conduct of the Federation fired; or when the company is sold. murky is the question of what to do of Law Societies requires lawyers to To that last point, when a company is when there is a possibility that a crime or report problems “up the ladder.” “It does sold or taken over, privilege depends on fraud is being or will be committed. The not permit whistle-blowing to third par- the type of sale — in a share sale, privilege FAQ notes the area of law is “uncertain ties which would amount to a breach of remains with the corporation. When and controversial, and awaits clarification the lawyer’s ethical duty to maintain assets are purchased, “solicitor-client priv- from appellate courts.” client confidentiality.” ilege flows through to successors-in-title,” If the client is seeking advice to facili- In cases where up-the-ladder reporting the FAQ states. tate a crime or fraud, “the information is does not result in a cessation of the prob- not covered by solicitor-client privilege, lematic activity, a lawyer is still not able to A recording of a webinar on the FAQs is and the duty of confidentiality does not release privileged information and may available for purchase by members at apply,” the FAQ says. Yet it notes that while have no other choice but to resign. http://www.cba.org/pd/details_en.aspx?id law society codes of conduct provide The FAQs address the question of to =NA_ONFEB113. exceptions to confidentiality requirements whom privilege pertains when external in the case of public safety, “(w)here the counsel are retained, or in cases where a Kim Covert is an editor in the CBA’s public safety exception does not apply, it single lawyer represents multiple clients; Communications Department. WE CAN HANDLE ANY PITCH. LITIGATIONBOUTIQUE.COM WOODS LLP LITIGATION . ARBITRATION . CLASS ACTION 2000 MGILL COLLEGE AVE. SUITE 1700 MONTREAL, QUEBEC H3A 3H3 T. 5149824545 PRINTEMPS 2013 CCCA Canadian Corporate Counsel Association 13