Law Times

Law Times • October 7, 2013 Page 5 NEWS 'Dangerous precedent' set Stores tapping customers' Wi-Fi Continued from page 1 Columbia Court of Appeal dealt with the issue in Baumgartner v. Baumgartner in 1995, Chester notes. According to Glustein, lawyers who work together in a law firm are a part of its overall resources and can be presumed to share information while those who work separately have a legal obligation to keep their clients' information private. The evidence showed Kevin Fox, the lawyer Alexander worked in association with at Davenport Law Group, never discussed the issues raised by the defendant with him, Glustein noted. Ben Hanuka, principal at Law Works Professional Corp., says that although the master arrived at the right conclusion by looking at the evidence, his overall decision "sets a dangerous precedent." The master is "drawing a broad stroke" when he says sharing support staff wouldn't lead to presumption of shared information, according to Hanuka. In this case, the lawyers used the same letterhead and shared an e-mail domain, Hanuka says, noting doing so can give clients the impression they are in fact a part of the same law firm. "They're telling the whole world they're part of Davenport Law Group. The client has no way of knowing that they're separate practices. For them, it's one law firm." Sharing a bookkeeper and an email domain administrator also means there could be sharing of some information, including transaction details, says Hanuka. But for Glustein, "a reasonably informed person" wouldn't expect lawyers in associations to share files. "If the lawyers work in separate practices, with separate bank accounts and separate conflict search systems, a reasonably informed person would not expect those lawyers to discuss files with each other — in fact, the opposite expectation should apply," he wrote. "To require lawyers with separate practices to implement common conflict search systems would be contrary to the professional confidentiality and non-disclosure obligations to which they are bound." Julia Holland, counsel at Torys LLP, agrees with the master. "I think the master was correct to reject the presumption that lawyers with separate practices who work in association discuss their files with one another," she says. "The presumption that applies in a law firm setting should not be extended to lawyers working in association. We should, and I believe we can, trust lawyers to take their obligations of confidentiality seriously." In his ruling, Glustein said lawyers with separate practices in an association are bound by s. 2.03(1) of the Rules of Professional Conduct that forbids them from disclosing anything about their clients to another lawyer in the association. For his part, Alexander says the decision "makes sense given the kind of case it is. It is a continuum, really, so on one end you have separate practices and separate offices. On the other, you have partnership in the same office. We have a bit of hybrid but clearly separate practices." He notes the clients in the matter knew he and Fox worked separately and says they have separate accountants and bookkeepers. LT Continued from page 1 of Justice has been making of them. Asked whether Canadian companies should worry about processing information in the United States, Bell suggested the debate over the National Security Agency's collection of information has been blown out of proportion. "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," he said. Bell described a patchwork of laws in the United States that touch on privacy but noted there's no overarching legislation on the issue and no prospect of one in the near future. Instead, the regulator indulges in "drive-by regulation" to address problems as they arise. In Europe, lawmakers are trying to harmonize the wide range of privacy regimes in each country into one set of rules. Guadalupe Sampedro, managing associate with Spanish law firm Garrigues LLP, said some European countries have very lax penalties for privacy violations while others, like Spain, are very punitive by handing out stringent monetary penalties to companies that run afoul of the law. Sampedro said it's now common practice for companies to take out insurance policies to protect themselves from fines. Much of the focus of the symposium, however, was on new challenges developments in technology pose for privacy law practitioners. Case law over the past year has dealt with everything from elevator repair companies that used GPS systems to track the movements of their employees to police forces using software to scan licence plates as they drive through town. One emerging challenge is the "Internet of things" through everyday devices with smart chips that can upload information to the Internet. "As soon as we put chips in other devices that people carry or have in their house or in their office and the network has the ability to monitor so many different activities and functions, then the privacy and security issues become very interesting," said Bell. Stores that track customers by tapping into their Wi-Fi signals is another emerging issue, said Bradley Weldon, a policy analyst with the B.C. information and privacy commissioner's office. "This is something that is currently being made use of in retail environments where stores are tracking the [cellphone] address through the store and combining that information with camera surveillance information where they are tracking individuals in the store, they are determining their gender, their possible age, and possible ethnicity from the information in the camera." Weldon questioned whether a sign at the door to notify shoppers of the practice is sufficient. Michelle Chibba, director of policy and special projects for Ontario's information and privacy commissioner, said data from smart grids and smart meters is in demand from companies like Google. Closed-circuit surveillance is another concern. Chibba said her office is working with companies to develop ways to conduct surveillance without violating the privacy of those who aren't the targets. If the public has to choose between security and privacy, it will choose the former, but they can have both, she said. LT Part-time, Executive LLM program for corporate counsel and practising lawyers Information T Faculty of Taught by U of Session Wednesday, December together with top Law professors, 7, 2011 5:30 - 7:00 pm Friday, December 9, 2011 8:00 - 9:30 am international faculty from U of T School of Management MIT-Sloan Faculty of Law, Faculty Lounge 78 Queen's Park, Toronto and Please feel free to drop in anytime during these hours. expert practitioners. No registration required. EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. GLLM_LT_July8_13.indd 1 www.lawtimesnews.com 13-07-03 10:51 AM

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