Group: Stephan Sader, Sarah Kaabar, Aman Kang, Karina Vertlib
Legal Privilege for In-House Counsel in NA Intro
- Whistleblower Award Programs in USA and Canada
- USA
- Dodd-Frank Whistleblower Program in 2011
- Canada
- Ontario Securities Commission (OSC) Whistleblower Policy in 2016
- Eligibility for In-House Counsel USA
- Dodd-Frank Whistleblower Program
- Section 205 of SOX
- Wadler v. Bio-Rad Labs Inc. 2017
- Canada (Ontario Securities Commission (OSC) Whistleblower Policy)
- USA
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
- Doctrine of incompatible profession
- The complex challenge of being a legal advisor and a business advisor
- Proactive lawyering
- 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
- Complexity of regulations
- Expectations of navigating and complying with jurisdictional differences
- Concerns with the everchanging legal landscape
- Cultural Challenges
- 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
- 3 Requirements:
- “Protection of public safety”
- Smith v Jones: Exceptions to solicitor-client privilege
- Customs Act, RSC 1985
