Law Times

Oct 7, 2013

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COLLECTIVE BARGAINING SCC NOMINATION Justice Marc Nadon to join top court bench Follow LAW TIMES on $4.00 • Vol. 24, No. 32 P2 LAO staff lawyers just want respect FOCUS ON P6 L aw TIMes P8 Insurance Law CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M October 7, 2013 ntitled-4 1 12-03-20 10:44 A Lawyers in associations get confidentiality reprieve Master rules against presumption that counsel share client info BY YAMRI TADDESE Law Times L awyers who work in association with each other can't be assumed to be sharing confidential client information, according to a Superior Court master. In Jajj v. 100337 Canada Ltd., the defendant, citing confidentiality, sought to remove Kenneth Alexander as the plaintiff 's counsel. The defendant had previously consulted with a lawyer who works in association with Alexander and, it suggested, it can be assumed that the two had discussed the information. The case, according to Master Benjamin Glustein, presented "a novel legal issue." While the Supreme Court made it clear in MacDonald Estate v. Martin in 1990 that lawyers who work in a law firm can be assumed to be sharing information, Glustein said there was no jurisprudence on what to do when lawyers work in separate practices but share office space and support staff. "Consequently, I deal with this issue as a matter of first instance," he wrote in his Sept. 20 reasons for decision that dismissed the defendants' motion. Unless lawyers work for the same law firm, their clients can't assume they share confidential information, Glustein found. "Even if two lawyers in an association share an assistant, receptionist, or bookkeeper or meet socially in the office from time to time, there ought to be no presumption that the assistant, receptionist, or bookkeeper transmit confidential information, or that it is discussed on social occasions," he wrote. "If a common assistant or bookkeeper worked a few days each week for two lawyers with separate practices in separate locations, or if two lawyers with separate practices were friends While the master arrived at the right conclusion by looking at the evidence, his overall decision 'sets a dangerous precedent,' says Ben Hanuka. but did not share premises, there would be no such presumption of disclosure either through work or socially. That analysis ought not to change simply because lawyers with separate practices share premises." Previous cases in Canada have in fact dealt with the issue, says Heenan Blaikie LLP partner Simon Chester, who says the central issue is what constitutes a law firm and what protocols are in place to keep information secret. Photo: Robin Kuniski "I think the live issue, which this case explores, is what's a law firm," says Chester. For lawyers who work in association, "Master Glustein says, quite rightly, that there's no presumption that the lawyers will function as a law firm and share confidence," he adds. Glustein's analysis is consistent with the way the British See Dangerous, page 5 Technology posing added challenges for privacy law 'I'm a lot more worried about what some of my clients are doing with the information than I am about what the federal government might do with it,' says Tom Bell. OTTAWA — From tracking customers on their mobile phones to monitoring employees via GPS devices, rapidly evolving technology is posing new and unprecedented challenges for privacy lawyers and lawmakers. "We're moving from a world of the Internet and the Internet of things to the Internet of everything where everything from your toaster to your baby's diaper may have an IP address assigned to it and be pushing data up into the cloud for harvesting," Dave McMahon, chief operating officer at the SecDev Group, told a Canadian Bar Association symposium on access to information and privacy law on Sept. 27. The question of privacy and snooping through technology — whether it be by governments or companies — has been in the spotlight in recent months with the revelation by whistleblower Edward Snowden that the U.S. National Security Agency has been intercepting metadata from phones in the United States and Europe. "It really created a firestorm in the United States because it started to point out to people just how much information — not that the companies were collecting about them — but that their own government was collecting about them," Tom Bell, a partner with the U.S. law firm of Perkins Coie LLP, told the conference. Bell said Snowden's revelations also shed light on the existence of the Foreign Intelligence Surveillance Act court whose proceedings are secret and ex parte. Companies targeted by orders don't have an opportunity to plead their case except through U.S. Justice Department lawyers who are seeking them in the first place. Bell, who represents a number of technology firms, said a number of companies, including Google Inc., Facebook Inc., Yahoo! Inc., and Twitter Inc., have petitioned the Foreign Intelligence Surveillance Act court for permission to disclose more information to the public about the types of requests the Department PM #40762529 BY ELIZABETH THOMPSON For Law Times See Stores, page 5 Get more online • Fresh Canadian legal news and analysis every day Canadian Lawyer | Law Times | 4Students | InHouse | Legal Feeds Visit Us Online 1-8-5X.indd 1 2/28/11 2:37:34 PM

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