Law Times

May 16, 2011

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/50231

Contents of this Issue

Navigation

Page 12 of 15

Law TiMes • May 16, 2011 FOCUS PAGE 13 Alarm sounded on solicitor-client privilege Canada behind in addressing emerging issues, report suggests BY ROBERT TODD Law Times I t's perhaps the single most important guarantee they possess, but lawyers must not take solicitor-client privi- lege for granted in a changing legal landscape increasingly in- fl uenced by globalization, a re- cent discussion paper suggests. With the release of the paper on challenges related to solicitor- client privilege in Canada earlier this year, University of Ottawa law professor Adam Dodek issues a wide-ranging review of the state of this quasi-constitutional right. He fi nds that the Supreme Court of Canada's jurisprudence doesn't go far enough in off ering a system to deal with the many is- sues that have now come to the forefront in modern society in re- lation to solicitor-client privilege. "Moreover, the Canadian approach to the privilege is in many ways at odds with how the privilege is treated in other common law jurisdictions," writes Dodek in the paper. At the same time, the privi- lege has often been mistaken for other legal protections, such as the ethical duty of confi den- tiality, litigation privilege, joint client privilege, common inter- est privilege, and the implied undertaking rule, he says. Dodek further highlights the discrepancies between solici- tor-client privilege in Canada versus other countries. Th ese diff erences must be accounted for, he suggests. "In a globalized legal world, international pressures will im- pact on the privilege in Cana- da, and Canadian clients and lawyers will engage in transna- tional transactions or litigation where the privilege will apply diff erently," he writes. "Moreover, Canadian courts are likely to consider the law in other jurisdictions either be- cause foreign law will be directly engaged or because of the need to consider persuasive authority in other common law countries to deal with new privilege issues for which there is a dearth of Canadian authority." Dodek also outlines how technological innovation may alter lawyers' perspective on privilege. He notes that Inter- net communications, for ex- ample, may give clients a false sense of confi dentiality. Other changes within the le- gal industry, such as outsourc- ing and other predictions of thinkers like Canadian Bar As- sociation special adviser Rich- ard Susskind, could also have a signifi cant impact on the issue in the decades ahead, Dodek notes. "Th e challenge for the CBA is to consider how this ancient concept which is a fundamen- tal part of the administration of justice should apply and adapt to the changes of the 21st cen- tury," Dodek concludes. Paul Paton, chairman of the CBA's ethics and professional responsibility committee, says it's important for the organiza- tion to continue to highlight the fact that privilege remains For example, he identifi es privi- lege in government as a top area for further study. Th ere's a colli- sion on that topic between the desire for government transpar- ency and accountability and the need for government as a client to have legal advice from law- yers protected by privilege. "As government moves for- ward in considering what in- formation to release and what not, it's important to at least think about, in a thoughtful way, what some of the conse- quences are of these actions," says Paton. He notes as well that Dodek's Paul Paton argues for extend- ing privilege to accountants. a live concern for lawyers and help them manage issues relat- ed to it in their own practices. He notes the committee re- leased a set of frequently asked questions on the topic last No- vember and held a sold-out we- binar shortly thereafter. "Th ere is a real appetite for further information and edu- cation within the profession," says Paton, a professor of law and director of the McGeorge School of Law's Ethics Across the Professions Initiative at the University of the Pacifi c in Sac- ramento, Calif. At the same time, he be- lieves it's equally important for those outside of the profession to gain knowledge about solic- itor-client privilege. In addition, Paton says Dodek's report outlines some of the key pressures on privilege. THE ONTARIO MUNICIPAL SERVICE DIRECTORY 2011 A Comprehensive Guide for reAl estAte professionAls, 2011 All the municipal services information you need for real estate searches under one cover. With introduction and historical linkages by michael l. Young, ll.B. this handy resource helps you process your real estate transactions more efficiently, saving you time and energy. published annually, the ontario municipal service directory: A Comprehensive Guide for real estate professionals, 2011 gives you up-to-date and easily accessible municipal contact information. includes: contact information for each municipality • • municipal addresses, telephone/fax numbers and email addresses Perfectbound • March 2011 one time purchase $89 p/C 0517010999 on subscription $84 p/C 0517140999 issn 1206-694X multiple copy discounts available prices subject to change without notice, to applicable taxes and shipping & handling. CANADA LAW BOOK® www.lawtimesnews.com OMSD 1-4 pg 3X.indd 1 2/24/11 9:33:06 AM What's Inside 2X long.indd 1 5/12/11 5:01:06 PM • • • • all registry offices' contact and clearances information addresses, telephone numbers for conveyancers and/or solicitors list of clearances including: tax certificates, water arrears, outstanding work orders and zoning compliance sheriffs' office addresses and telephone numbers Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation To advertise In an upcoming issue of Law Times, contact our sales team: Karen Lorimer 905-713-4339 karen.lorimer@thomsonreuters.com Kimberlee Pascoe 905-713-4342 kimberlee.pascoe@thomsonreuters.com paper highlights the fact that there are several questions re- lated to privilege that remain to be answered. So while the courts have given some over- arching guidance on the topic, a comprehensive reconsidera- tion of privilege is essential. Paton remains particularly interested in privilege in the corporate context, especially given the debates raging in the United States following the infamous Enron collapse in late 2001. Many experts have argued privilege shouldn't apply in civil contexts. "I disagree and I think it's important for the corporate bar to be attuned to both the pressures on privilege and the need to reinforce its impor- tance in dealing with their clients so that people can con- tinue to seek and obtain the best legal advice possible," says Paton. Now that Dodek's discus- sion paper is out there, Paton believes the CBA must consid- er the best response to its fi nd- ings. He suggests the organiza- tion must educate lawyers and those outside the profession about the threats to privilege and the possibility of extending it to other areas. Paton has long been an advocate for the exten- sion of privilege to accountants in Canada, for example. "Professor Dodek has placed a number of important ques- tions before the CBA, and I think it'll be up to the executive and to council — perhaps at the [CBA conference] in Halifax — to consider what the right next steps will be," says Paton. It's what's inside that counts! ISSUE DATE FOCUS SECTION May 30 Criminal Law June 6 June 13 June 20 June 27 July 11 July 25 August 8 August 22 Internet/E-Commerce Law Real Estate Law Family Law Municipal & Planning Law Legal Specialists & Boutiques Forensics/Private Investigators Corporate/Commercial Law Health/Life Sciences Law September 5 Class Actions September 12 Human Rights Law September 19 Business/Competition Law September 26 Intellectual Property/ Trademark Law Litigation October 3 October 17 October 24 October 31 November 7 Insurance Law Trusts & Estates Law Real Estate Law Family Law November 14 Labour & Employment Law November 21 Environmental Law November 28 Business of Law December 5 ADR/Mediation News • Commentary • Focus Sections • Analysis • CaseLaw

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - May 16, 2011