Law Times

PAGE 2 Nortel privilege ruling smells like pyrrhic victory NEWS lawyers for Nortel Networks Corp. executives won't have to hand over the notes they took during their clients' interviews with company investigators smells like little more than a pyrrhic victory for the criminal defence bar. "The fact remains that the lawyers will O ing last week that rul- BY JULIUS MELNITZER For Law Times ntario Superior Court Justice Frank Marrocco's being required to disclose his or her notes of the evidence would inevitably mean that the barrister' said Marrocco. "The prospect of a barrister Glen Jennings have to come and testify against their cli- ents," says Glen Jennings of Gowling Lafleur Henderson LLP. "Ordering the lawyers to go read the notes to see if they refresh their present memory and then come tell the court and the Crown what they remember is pretty small comfort indeed. protection of litigation privilege because they were made in contemplation of litigation. "In performing his or her duty, a barrister has to be free from unnecessary interference," Marrocco found that the notes had the " month that Dunn's counsel, Tom Heintzman that Crown attorneys in the trial of former Nortel CEO Frank Dunn and former chief financial officer Douglas Beatty had successfully argued last observations are no longer his or her own." The fact remains, however, and Junior Sirivar of McCarthy Tétrault LLP, and the lawyers for Beatty, James Douglas and Kara Beitel of Borden Ladner Gervais LLP, were eligible to testify about what hap- pened and what was said during an internal investigative meeting in March 2004. In that ruling, Marrocco reasoned that traditional solicitor-client privilege didn't apply because third parties were present during that meeting. But Jennings points out that the meeting s thoughts and as I'm concerned the ruling protecting the notes is much ado about nothing in this case, he says. "But if the events in question were more arose in the Nortel trial is an unusual one because the accused' source of last resort from the Crown's perspec- The silver lining is that the situation that s lawyers were truly the " counsel for the accused — as witnesses. But the Americans indicated that they had no rec- ollection of the meeting and pointed out that the U.S. rules extended privilege to their notes. "The unfortunate thing was that tive. Indeed, the Crown first attempted to have the U.S. lawyers who conducted the investiga- tion — they were the company' s lawyers, not accused's lawyers were the last ones stand- the ing, so to speak," says Jennings. "Had a recording of the interview been made, as is commonly done nowadays, the issue of the lawyers testifying would not have arisen." Despite the concerns, Tyler Hodgson of took place almost a decade ago. "I suspect the lawyers won't remember a whole lot, with or without the notes, so as far BLG, who represents Douglas and Beitel, is satisfied with Marrocco' think it's the right decision," he says. "I can say that we're very happy and we LT s ruling last week. current, lawyers would be put in a very awkward situation whether or not the notes were produced. " May 14, 2012 • Law TiMes Tradition triumphs at law society name debate BY KENDYL SEBESTA Law Times M keep the regulator's 215-year-old embers of the Law Society of Upper Canada have over- whelmingly voted to name in what one proponent of changing it says was a triumph of tradition over merits. "I didn't expect the motion to go forward," says Omar Ha-Red- eye, who supported federal gov- ernment lawyer Thomas Vincent' proposal to change the name to the Ontario Law Society. "But I do think it was important to have that discussion. From my impression of the debate, the vote wasn't actu- ally based on merits but rather on tradition, which is disappointing given lawyers are trained to debate issues on their merits. " In a lively debate mixed with s passionate comments and bursts of laughter, a packed house of 50 people gathered at Osgoode Hall' Convocation Hall on May 9 to de- bate Vincent' took the time to consider the law society' the need to support them," says LSUC spokesman Roy Thomas. "Looking at the debate that "I was glad to see people s traditions and felt s motion. took place, I think there was a consensus among most members that there wasn't any compelling reason to change the law society' name, that the cost would be too great, and that there were more important priorities. So it was nice to see that support." Vincent argued the law so- ciety's name creates confusion s among the public and should change to reflect Canada' WEBCAST OPTION AVAILABLE FOR EACH COURSE! Accessibility for Ontarians with Disabilities Act (AODA) Toronto - June 18, 2012 Canada's New Anti-Spam Legislation: a Very Wide Objective, a Very Wide Swath Toronto - May 28, 2012 Vancouver - May 30, 2012 Calgary - May 31, 2012 Franchising: Diving Deep Toronto - June 11, 2012 Calgary - June 12, 2012 Vancouver - June 13, 2012 Oil and Gas: Current Issues and Trends Calgary - May 31, 2012 LEXPERT LEGAL EDUCATION SEMINARS SPRING 2012 SCHEDULE Social Media Law Conference: Cutting Edge Practical Advice From Canada's Advertising Law Experts Toronto - May 28, 2012 Vancouver - May 30, 2012 Calgary - May 31, 2012 Tendering and Procurement: Mastering the Complexities Toronto - June 6, 2012 Vancouver - June 12, 2012 Calgary - June 13, 2012 The Evolution of Renewable Generation Projects Toronto - June 20, 2012 rent geography. For his part, Ha- Redeye disagrees with arguments for keeping the law society' s cur- that cited a lack of evidence that the public was confused by it. "Typically, law society mem- are dealing with highly s name bers educated and sophisticated indi- viduals and so they may not be aware of people in the general public who might be confused by the name, Toronto lawyer. "In this case, I would say the ab- " says Ha-Redeye, a sence of information doesn't lead to a conclusion and we should study the issue further to see if there truly is a problem and then find the best way to address it." Alan Heisey, a lawyer who op- posed the motion, says the debate was encouraging. "I thought the debate was very healthy and it was encour- aging to see so many people who knew about the law society' history," says Heisey. "I learned s For more information or to register for these seminars, please visit www.lexpert.ca/events quite a bit and I think those who were dissatisfied with the name perhaps didn't know the law so- ciety had such a history. vote, a vote by hand indicated that three people supported Vincent' While there was no formal " s motion. 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