Canadian Lawyer InHouse

Feb/Mar 2010

Legal news and trends for Canadian in-house counsel and c-suite executives

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" state T and By Kelly Harris In-house lawyers walk a fine line between their business and legal functions when invoking privilege. here is a common refrain amongst those in the in- house bar; they are either lawyers first and business- people second or the other way around. Hydro One Networks Inc. senior counsel Sanjeev Dhawan says he is always quick to remember what capacity he is working in when he enters the room, businessman or lawyer, and if need be tell everyone in the room to avoid confusion in contentious situations. It is the sort of church and state of the in- house bar, the separation of which is key for counsel who want to cite their role as a lawyer when calling upon the privilege shield. The distinction is also important for others in a company; many employees may also believe what they tell their company's in- house lawyer is always protected under solicitor-client privilege or try to use counsel to hide what they are doing. Those who attempt to break through the claimed privilege shield are quick to point out in these types of situations that in-house lawyers have to consider who their client actually is. "I'm the enemy," says David Debenham. "I'm the litigation enemy who tries to break the privilege shield that [an] in-house counsel claims." The Ottawa-based Lang Michener LLP part- ner and forensic accountant spends his time looking for the "Bernie Madoffs" of the world; white-collar crooks trying to hide behind corporate structures and in-house lawyers. "Privilege is, in my view, a bit of an illusion, in the sense that people think . . . and say, privilege is this sacrosanct cloak of invisibility that allows you to do whatever you want and that is sort of the mythology." In an article Debenham wrote for Law Times, Ontario's Hydro One Networks Inc. senior counsel Sanjeev Dhawan. Church INHOUSE FEBRUARY 2010 • 23 John Hryniuk

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