Canadian Lawyer

"There's a whole line of authority that talks about solicitor-client privilege that doesn't just apply to direct communications between lawyer and client . . . or relates to a continuum of work that a lawyer might do in order to facilitate providing the client with legal advice." ADAM DODEK, UNIVERSITY OF OTTAWA lawyers could be compelled to testify," says Adam Dodek, an associate profes- sor with the faculty of law at the Univer- sity of Ottawa. "That pretrial was by one judge and then the trial judge, Justice Marrocco, was stuck with that decision and the issue of the lawyers' notes was argued on the basis of litigation privi- lege. might have fallen under solicitor-client privilege. In a litigation context, Dodek says there is often an overlap of liti- gation or solicitor-client privilege. "In very few cases does a court actually have to make a determination between the two of them," he says. Dodek believes there's a good case to It surprised some who believed it " be made that a lawyer's notes in Canada would generally fall under solicitor- client privilege. "There's a whole line of authority that talks about solicitor- client privilege that doesn't just apply to direct communications between lawyer and client in person or on the phone or in e-mail, or relates to a continuum of work that a lawyer might do in order to facilitate providing the client with legal advice, not a settled area of law in Canada and certainly the Supreme Court of Canada hasn't ruled on that issue, but I think there's a lot of authority to support that notes a lawyer takes to help him or her provide legal advice to a client would be covered by solicitor-client privilege. So when it comes to privilege, what " says Dodek. "That area is " other areas of privilege can lawyers find themselves operating under? To privilege, a communication must be: (1) between a client and his or her law- yer who must be acting in a professional capacity as a lawyer; (2) given in the qualify for lawyer-and-client context of obtaining legal advice; and (3) intended to be confidential. Privilege is a simple rule, says Martin Sheehan of Fasken Martineau DuMoulin LLP. The evidence, although relevant, will still be barred for another public policy reason. It could be protected under solicitor- client privilege, litigation privilege — to allow lawyers to work freely in what is an adversarial process — even settle- ment privilege to attempt to allow par- ties to settle their differences. Deal privilege A subset of solicitor-client privilege, deal team privilege is an area starting to get a lot of attention and has been recognized by Canadian courts. It could also be considered a subset of litigation privilege in a circumstance where there is a deal team acting on a transaction where there's also litigation involved. In a corporate environment on a a reflection of the reality that sometimes the 'client' must be properly viewed as including advisers who are dealing with the lawyers as an extension of the client. This is particularly prevalent in the M&A context but can arise in other situations as well. The communications must still be privileged in order to qual- ify, but the involvement of the advisers in appropriate circumstances does not vitiate the privilege. ly been applied in an Ontario decision, Barrick Gold Corp. v. Goldcorp. Inc., where a transactional evaluation in- volving an investment team of bankers, lawyers, and client representatives took place on a host of issues. Deal team privilege has most recent- " big deal there can be multiple advis- ers working on a corporate transaction — from investment bankers to lawyers and accountants. The question has been raised as to what extent are those com- munications with those practitioners who are not lawyers subsumed within solicitor-client privilege. Deal team privilege suggests that when looking at the involvement of third parties on a deal, you have to apply a functionality test asking if the person is standing in the shoes of the client when they are interacting with the lawyer. "Deal privilege should not be consid- ered particularly controversial if viewed in its proper context," says Jessica Kim- mel of Goodmans LLP, who recently co-authored the paper "Is There A Deal Team Privilege in Canada?" "It is simply In-house privilege In the Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. v. European Com- mission decision in September 2010, the European Court of Justice said that communications with management and in-house counsel can't be protected from disclosure or discovery in investi- gations by the European Commission. The appeal to the ECJ was brought by Akzo Nobel and a subsidiary. The Eu- ropean Commission was investigating them in 2003 for possible anti-competi- tive behaviour. It found two e-mails be- tween the managing director and Akzo Nobel's co-ordinator for competition law, a company lawyer who was also a member of the Netherlands Bar. The ECJ said because an in-house lawyer is an employee, he or she doesn't "enjoy a level of professional independence com- parable to that of an external lawyer. "That really strikes fear into the heart " of corporate clients and corporate law- yers all across North America," says www.CANADIAN Lawyermag.com JULY 2012 43

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