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w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 7 17 evidentiary ruling, the court allowed Wadler to use attorney-client privileged information and documents as evi- dence. Wadler as whistleblower trumped Wadler as attorney. In Canada, the traditional opinion is that solicitor-client privilege and the requirement of confidentiality routine- ly apply to in-house counsel except in extraordinary circumstances. The Law Society of Upper Canada's Rules of Pro- fessional Conduct require lawyers to "hold in strict confidence all informa- tion concerning the business and affairs of the client acquired in the course of the professional relationship" (Rule 3.3-1), subject to narrow exceptions. All other provincial bar associations have similar strictures. But the Ontario Securities Commission has a different approach in mind. In 2016, the OSC adopted a policy that in certain circumstances will make in-house counsel eligible for financial incentives for reporting wrongdoing to the regulator's new whistleblower office. The policy is voluntary, not mandatory. Presumably, in-house counsel would first have to make themselves comfort- able they were acting in accordance with the rules of the law society. The OSC policy is a crack in the traditional law. It lets the light in. There is less comfort for in-house counsel than there was. Perhaps, the confiden- tiality requirement is not as strong as was originally thought. In a letter to the OSC about the policy, sent when it was first proposed, the Law Society of Upper Canada commented: "Our view is that this would create uncertainty for lawyers in fulfilling obligations to maintain confidentiality of client infor- mation and protect privileged informa- tion, and may offend the lawyer's duty of commitment to the client's cause." The root problem is conflation of solicitor-client privilege with the rule of confidentiality. It is hard to quarrel with solicitor-client privilege. It is easy to see why requiring legal advice be disclosed during litigation would detract from the administration of justice and why solicitor-client privilege should apply to in-house counsel when they are giv- ing legal advice to their employer. But applying the different principle of con- fidentiality broadly, and particularly to in-house counsel, is another matter. We all know that many lawyers who work for corporations, particularly senior lawyers, often give more busi- ness advice than legal advice. Indeed, lawyers in private practice often join corporate legal departments because they are more interested in business issues than legal problems. It seems pretty clear that solicitor-client privilege doesn't apply to business communica- tions, even if one of the people involved is in-house counsel. Why should the rule of confidentiality apply in these circumstances? It shouldn't. If they're not giving legal advice, lawyers are just private citizens like any- one else. There shouldn't be any special rules that protect them and those with whom they're talking. Philip Slayton is immediate past presi- dent of PEN Canada. He is working on a book about freedom in Canada. Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS FOR L AWYERS AND NON - LAWYERS law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] ntitled-1 1 2015-02-25 8:38 AM

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