Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50879
external, is seen as a key pillar of the legal system. The European case high- lighted how much rules can differ from one jurisdiction to the next. But it also pushed many Canadian corporate law- yers to look at their own practices. In a sense, Canadian in-house coun- sel have it far easier than their colleagues across the pond. Every Canadian law- yer InHouse approached for this story said the same thing — what happened in Europe would never happen here. No one in Canada would challenge the privilege of communication between in- house counsel and the companies they work for, as long as the conversation is about legal issues. "Canadian courts have consistently held that there is no distinc- tion between in-house counsel, acting in their capacity as lawyers, and external counsel regarding the legal privilege . . . [in] their communications. Provincial law society rules are to the same effect," says Pascale Elharrar, associate general counsel at BMO Financial Group. But any challenge to privilege anywhere in the world is seen by the legal commu- nity as undermining the core aspect of the solicitor-client relationship, adds Elharrar. "While the decision does not threaten or challenge the status quo of legal privilege in Canada, it has sparked discussion and concern amongst Canadian legal counsel, both in-house and outside counsel, in the same way that positions taken by some Canadian authorities that solicitor-client privilege should be ignored or waived give rise to concern." In Luxembourg, the European judg- es backed their ruling, noting in-house counsel could not be independent enough from their employer to be afforded privi- lege. "[T]he in-house lawyer's economic dependence and the close ties with his employer" mean "he does not enjoy a level of professional independence com- parable to that of an external lawyer," the panel of 11 ECJ judges noted in their decision. "An in-house lawyer cannot, whatever guarantees he has in the exer- cise of his profession, be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence." Deanne MacLeod, a partner at Stewart McKelvey in Halifax, says the ECJ decision will not lead to major changes in Canada. "It is unlikely that this decision will have any direct impli- cations on Canadian law, as privilege in this country is well known, understood, and applied," she says. "However, com- panies with operations in Europe must take note of this decision and take appropriate steps to ensure that materi- al they wish to be confidential remains privileged under EU law." That's key, because many Canadian THE LAW OF PRIVILEGE IN CANADA Robert W. Hubbard, Susan Magotiaux and Suzanne M. Duncan UNDERSTAND, INVOKE AND RESPOND TO PRIVILEGE CLAIMS EFFECTIVELY The Law of Privilege in Canada is a comprehensive guide to privilege and confidentiality. It will help you understand privilege laws and how to use them. Written in clear language, it explains everything you need to know about privilege laws, including: Looseleaf (2 volumes) • $325 Subscription updates invoiced as issued (1-2/yr) P/C 0137030000 ISBN 0-88804-454-2 • • • • • • • history and purpose the principles the various privileges, how each currently operates, and their scope a detailed look at the major cases and relevant legislation practical explanations of how to invoke the privilege exemptions and exceptions to privilege the "key points" on each type of privilege in an at-a-glance format This resource keeps you current and includes the most relevant case law. The book is divided into self-contained chapters on different privileges for quick researching. canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. CL0211 40 • FEBRUARY 2011 INHOUSE