Solicitor-Client Privilege

Group: Stephan Sader, Sarah Kaabar, Aman Kang, Karina Vertlib

Legal Privilege for In-House Counsel in NA Intro

The European view on corporate Counsel & privilege

European Union’s unique institutional set up:
The EU’s broad priorities are set by the European Council, which brings together national and EU-level leaders
Directly elected MEPs represent European citizens in the European Parliament
The interests of the EU as a whole are promoted by the European Commission, whose members are appointed by national governments
Governments defend their own country’s national interests in the Council of the European Union.
Two main sources of European Law
- The Treaty on European Union (TEU)
Treaty on the Functioning of the European Union (TFEU)
Main institutions involved in EU legislation
Conflicts and Compliance
The European union’s legal abilities
Privilege
Akzo Nobel Chemicals Ltd v EC Commission[2010] ECR 1-8301
In-house counsel in different member states

Ethical Challenges for Transnational In-House Lawyers

Introduction:

Globalization of Globalization of In-House Counsels
Code of Conduct
- Analyzing the similarities and differences between North America and Europe
- Conflict of interest issues
Duty of confidentiality & Privilege
- Analyzing the similarities and differences between North America and Europe

Globalization of In-House Counsels

Performing company management duties and integration functions
More proactive lawyering in North America then UK
Expected to implement knowledge of global capital markets and educate foreign lawyers

Culture Dynamics
- Judge’s control for litigation in civil law countries vs. lawyers’ control for litigation in North America
- Culture Clash

Code of Conduct

American Bar Association – Model Rules of Code of Conduct
Canadian Bar Association – Code of Professional Conduct
- Acknowledging diversity and responding to changes in the cultural landscape
- Acting on public interest in a complex and ever-changing society
Conflict of interest differences:
- North America has more rules and systems in place; Europe does not
- Detection is hard or can be missed
- Can result in political issues

Duty of Confidentiality & Conflicts of Interest
Europe

European Union do not extend in-house counsels attorney-client protection
- Example: John Deere case
Reasoning: In-House counsel are not viewed as independent due to close ties with employer
- Example: Azko Nobel Chemicals Ltd. and Akcros Chemics Ltd. v. European Commission
Implications:
- Multi-national corporations who rely on their in-house counsel to manage their legal affairs in the European Union will face corporate compliance challenges
- In-House counsels will be disadvantaged and will need to exercise high degree of prudence

North America

Confidentiality is when the speaker intended the statement to be heard only for the ears of the person addressed
- It is a public interest for companies to adhere to the law, therefore In-House counsels are encouraged as it promotes corporate compliance
In US: Federal Rule of Evidence 501 describes the necessary elements of attorney client privilege in United States & in Canada the CBA also describes Attorney-Client privilege
Privilege is obtained during communications between lawyer and client + made when client is seeking advice + with intention of confidentiality
- This applies to all lawyers
Difference in confidentiality vs privilege
- Privileged records entail billing documents, legal opinions,
- Confidential records are broader in scope and include real estate transactions, corresponding with opposing counsel, etc.
Critics: In-House counsel who depend on one company can be viewed as not providing independent advice because of their financial interest and dependence with the company

Protecting privilege

First seizure of solicitor’s cellphone and laptop May 2019
- What happened to Nick Wright?
Canada
- Customs Act, RSC 1985
  - “goods”
- Case law & how it applies to privilege
  - R v Fearon, 2014 SCC 77, [2014] 3 SCR 621
  - Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53
  - Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General)
  - Festing v Attorney General (Canada), 2003 BCCA
  - R v Simmons, [1988] 2 SCR 495
- Smith v Jones, [1999] SCJ
  - Smith v Jones: Exceptions to solicitor-client privilege
    - “Protection of public safety”
      - 3 Requirements:
        
        identifiable person or group of persons;
        
        risk is of serious bodily harm or death;
        
        the risk is imminent
      - Travelling to the US
        
        S. Customs and Border Protection & privilege
      - Suggestions for protecting solicitor – client privilege
        
        Establish a policies & notify clients
        
        “Clean” your device
        
        Segregate your info
        
        Carry legal identification
        
        Resort to the cloud?
        
        Notify the officer about the presence of privileged information
        
        Encryption and other security methods

Group Presentations