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LEGAL REPORT/LITIGATION Dodek. "The law in the United States and Canada is very clear that client communications with a lawyer, whether in-house, government, or a lawyer at a private law firm, there's no differ- ence — it's all covered by solicitor-client privilege. whether he or she is at a corporation or in a government po- sition, it's only the communication made for the purpose of legal advice that falls under privilege. "A good lawyer, whether in-house counsel or at a law firm, may be asked to provide business advice, personal advice, or government policy advice and the courts have clearly said it's not covered by solicitor- client privilege, The added challenge for in-house counsel, says Dodek, is " specifically specify that what they are seeking is legal advice. The challenge becomes one of labelling communications in terms of what was legal advice or business advice that won't be privileged. "Because of the nature of in-house counsel they are frequently providing both," says Dodek. "They are constantly faced with that challenge of trying to figure out when they are acting in a legal capacity and when they are in a business ca- pacity. The problem is when a client doesn't come to a lawyer and " he says. "In-house counsel has to be very clear in what capacity they are dealing and as much as possible separate legal advice and " PROFESSIONAL DIRECTORY Supreme Court of Canada Counsel and Agency Services Henry S. Brown, QC Brian A. Crane, QC Guy Régimbald Graham Ragan Matthew Estabrooks Eduard J. Van Bemmel, Law Clerk business advice. They need to avoid mixing the legal advice with the business advice, ing what was privileged legal advice in a matter in a separate document. "If you want to protect privilege you want to make sure you break it down. If I were asked, as in-house counsel, to give business advice on a certain number of issues I would say, 'this is the business advice' but have a paragraph that would say, 'as discussed in the attached privileged legal memo' and set out what my legal advice is in a separate document. There- fore the cover document would probably be discoverable but the attached would not," says Sheehan. " says Sheehan, who advises outlin- Settlement privilege This can occur from the very beginning of a legal dispute where lawyers are talking with each other. The courts have rec- ognized privilege for those communications on the grounds of trying to facilitate settlement of disputes. "It wouldn't be in people's interest to try and settle disputes if they knew that stuff they said in an e-mail or over the phone could come back to bite them in court," says Dodek. The exception is when a party wants to interpret that a transaction or settlement has in fact occurred. "If the media- tion privilege is overall and encompassing I could never allege that a transaction occurred in mediation unless papered in writing, " says Sheehan. Let us open right door for you the 160 Elgin StreetSuite 2600OttawaOntarioK1P 1C3T 613-233-1781 montréalottawatorontohamiltonwaterloo regioncalgaryvancouverbeijingmoscowlondon ntitled-1 1 Over1,800 MembersacrossCanada Find a Professional Mediator / Arbitrator 18774754353 arbitrator 44 JULY 2012 www. CANADIAN Lawyermag.com ntitled-1 1 12-06-08 9:18 AM uretzky_CL_May_11.indd 1 4/14/11 10:32:23 AM 12-01-17 10:50 AM We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of eleven lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504

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