Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50875
people would certainly take us to task immediately if they thought we didn't do the right thing by their personal information. We would hear about it. GARCIA: We tend to be involved in privacy concerns regarding payroll. We are currently going through a project of consolidating all the payroll infor- mation in the U.S. so we have some of those cross-border issues. Again, we just try to look at it in terms of devel- oping the highest standard possible and making sure that people are noti- fied of the fact that the information is going to be . . . transferred to the U.S., obtain consent, and answer questions that people might have regarding the level of security and ensuring that we use contracts to ensure that security and to take the highest possible level of protection. INHOUSE: Following the European Court of Justice decision in Akzo Nobel Chemicals Ltd. v. European Commission, are you worried solicitor-client privilege for in-house counsel is under pressure? What are some other issues in-house counsel face in this particular area? FISHER: [In Europe], the rule about the independence of employed lawyers is not particularly new. It has been around since the early '80s, so we are conscious of that in that jurisdiction. You also need to consider that particu- lar judgment is EU-related. It, there- fore, falls primarily into two major areas of competition and merger. And there are two things that will allow the preservation of that privilege within the community: One is that it is for defence purposes and; secondly, it is with an independent lawyer, meaning an independent EU-admitted lawyer, so your American or Canadian law- yer would not qualify sitting in the Paris or London office. It also, though, applies only in EU-related matters, so in many jurisdictions, the Nordic countries, Iberia and England, for exam- ple, they do have protections for privi- lege that are better known to us. And as a matter of domestic law within those jurisdictions, will still be preserved for privilege within those particular jurisdictions. KREBS: You make a very good point in the scope of the action in the Akzo deci- sion. The decision was very limited, in that it was EU, and it was EU competi- tion matters. . . . I think a critical point is if we say "Oh, there's no privilege in the EU or no privilege in Europe," that will become a self-fulfilling prophecy because in other jurisdictions, if you are not vigilant in either recognizing or protecting what you have, then you are going to lose in other areas. GAUDI: I definitely think it takes some vigilance. If you have two seats at a company, for example, anybody who is secretary to the board or has a seat on the board has a very different role than they do as counsel to the company. And anybody who sits at the executive table, helping to manage the business from a business perspective, as well as being counsel, and that is a lens through which they sit at that table, which is my case, it is rife with issues for privilege, for sure. So that takes quite a lot of vigilance, and a little more formality around the things that are truly legal, than you may otherwise have to do. As core counsel I tend to agree with what was said before about waiver of privilege, and it is, unfortunately, quite common for counsel — especially with e-mails. If you send an e-mail, even if you mark it "privileged" and have one person that you send it to, they will then inform their entire team, "Here's what the lawyer said," without thinking about it. Well goodbye privilege. GARCIA: Also, I think as we said before, as you do more in the organization, you become more involved in the strategic business decisions, you have to be very careful that you know which hat you are wearing at that particular point in time. Are you giving legal advice? Are you giv- ing business advice? And that becomes a very difficult balancing act. IH ... from the wild west all the way to the far east. Plug into Bennett Jones. CALGARY | TORONTO | EDMONTON | OT TAWA | BEIJING | DUBAI | ABU DHABI Your lawyer. Your law firm. Your business advisor. Your lawyer. Your law firm. Your business ad BennettJones-3_IH_Aug_11.indd 1 INHOUSE AUGUST 2011 • 6/27/11 9:20:47 AM 23