Canadian Lawyer InHouse

41 CANADIANLAWYERMAG.COM/INHOUSE JULY/AUGUST 2018 areas that may in the future target the scope of privilege. According to one lawyer who spoke without attribution: "There's noth- ing in the hopper presently, but the federal government may take a run at more exten- sive regulation of lawyers in the field of an- ti-money-laundering, and privilege will be at the centre of that fight. We have all this jurisprudence saying the sky will fall if ever a client is told that everything they say is not secret, and yet there are countries a lot bigger than ours and quite sophisticated that have managed to have functioning justice systems without a doctrine as strict as ours." All of these developments surrounding privilege make for heady times for in-house counsel. Jean-Simon Cléroux, the director of litigation at SNC Lavalin, says it is "abso - lutely essential" for him to stay on top of le- gal developments around privilege. Or as he puts it: "Solicitor-client privilege, litigation privilege and professional secrecy is part of my everyday reality. So I have to read as much as possible on the issue." But he has had to do much more than that. Ever since the for - mer civil and commercial litigator with De Grandpré Chait LLP joined SNC-Lavalin in October 2015, he's been holding workshops on privilege, aimed not only at in-house counsel but management as well. "I quickly realized that litigation privilege and solicitor- client privilege were poorly understood, and people confused one with the other," recalls Cléroux. "People used to mark confidential or privileged on more or less all documents and think they were automatically privileged, or if I attended a meeting that all that was said was privileged." Besides holding workshops, Cléroux also "insisted" that he be involved in all litigation in which the company was involved from the onset. "I have to ensure that the maximum is done to put in place ap - propriate strategies internally to ensure that we do not waive privilege and that important and sensitive documents are circulated in the proper fashion," adds Cléroux. IH The Federal Court of Appeal confirmed the judge-made doctrine of transactional "common interest privilege, but" in-house counsel have to be nevertheless vigilant, warns Scott Bower, co-head of the research and opinion group at Bennett Jones LLP. In-house counsel have to be clear and purposeful when disclosing legal advice to the other side. Ideally, a common interest privilege agreement that governs the parties should be drawn. "As in-house counsel, you want to make sure that you papered that properly and made your intentions clear so that if it is ever challenged down the road you have something to demonstrate the purpose behind sharing that information," advises Bower. IH TIPS OVER COMMON INTEREST PRIVILEGE Master the law. Canada's leading law school offers a graduate degree in four unique streams: Business Law Canadian Law in a Global Context Innovation, Law and Technology Law of Leadership Apply today. Visit gpllm.law.utoronto.ca Questions? gpllm@utoronto.ca ntitled-8 1 2018-06-12 12:47 PM

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