The Lawyers Weekly - In House Counsel, Spring 2012

each situation must be assessed on a
case-by-case basis to determine if the
circumstances were such that the privi-
lege arose. Whether or not the privi-
lege will attach depends on the nature
of the relationship, the subject matter
of the advice, and the circumstances in
which it is sought and rendered.” The
Saskatchewan Court of Queen’s Bench
had considered this issue in Potash Corp.
of Saskatchewan v. Barton (2002), ob-
serving that, “when corporate counsel
works in some other capacity, such as
an executive or board secretary, infor-
mation is not acquired in the course of
the solicitor/client relationship and no
privilege attaches.”
ost corporate counsel al-
ready have a keen appre-
ciation of the challenges
of preserving privilege
when their company clients seek both
legal and business advice from them in
the course of any given day. Ensuring

that correspondence or e-mails are segregated and redacting legal from business advice are a start; simply slapping “ privileged and confidential” on a document is not enough. And the worst time to find out that you’ve managed it incorrectly is after the fact.

Where a corporate secretary has legal training but isn’t functioning as a lawyer is even more important. Even if the corporate secretary is also general counsel, whenever he or she is playing an executive role that is not necessarily a legal role, the safest course is to assume that he or she should not be providing legal advice in that capacity. This means operating under the assumption that privilege will not apply.

Canada hasn’t been immune from cor-
porate scandal: Bre-X, Live-Ent, Nortel
Networks and YBM Magnex are but a
few examples. And the scandals keep
coming. The recent collapse of what was
once Canada’s largest publicly traded
forest products company, Sino-Forest,
serves as a reminder of the importance
both of the decade of reforms and the
need for continuing vigilance. The
RCMP and the Ontario Securities Com-
mission are continuing to investigate,
and U.S. investors launched a class ac-
tion lawsuit in January. The February
report of an independent committee of
the Sino-Forest board into allegations of
fraud at the company noted that its in-
vestigation had been hindered by miss-
ing and incomplete corporate records
and documentation.

Paul Paton is a professor at the University of the Pacific in

Sacramento, Calif., and comments frequently on in-house counsel issues.

It’s about getting service and value from your outside counsel.

In today’s business environment, you need service and value that helps you stretch limited resources. If you’re not getting this from your outside counsel, we should talk: