Privilege and Confidentiality

This book is essential for: all lawyers, particularly those who are litigators.

Current to: June 2011

Essential practice information
Issues of privilege and confidentiality are some of the most difficult and interesting issues in the practice of law. In this publication, you will hear from senior counsel on how to deal with issues that you will certainly face in your practice. When is legal advice privileged? What about advice given by in-house counsel? What is the scope of counsel’s brief privilege? Is there a “right way” to deal with your expert in order to avoid potential embarrassment through disclosure of drafts and correspondence? When can you refer the court to a letter marked “Without Prejudice”? What is the proper thing to do when you inadvertently send opposing counsel an opinion letter intended only for your client?; what about when you receive it? What should you do when you are preparing to examine a witness and you discover that she has been examined before in another proceeding and the evidence she gave may be critical to your case. What do you do when you get a call from a potential client who wants you to take a big case against a client for whom your firm acted recently? Find out some answers to these challenging issues.

CONTENTS

• overview of privilege and confidentiality: legal advice privilege, litigation privilege, settlement privilege, the implied undertaking, confidentiality
• litigation privilege: overview and and two-part test, vs. solicitor-client privilege, litigation privilege and self-represented parties, expiration, laying a foundation, tips for asserting/attacking litigation privilege claims
• accidental waiver of privilege: overview, waiver of solicitor-client privilege by allegations made in pleadings, waiver by affidavit evidence, waiver by disclosure of privileged documents
• misuse of confidential information or breach of confidence: different categories of confidential information, the test for an action in breach of confidence, misuse of confidential information in the employment context, remedies
• common interest privilege: origin, scope, and duration
• communications with expert witnesses: privilege and experts, experts under the new Supreme Court Civil Rules, joint experts, court-appointed experts, the experience in other jurisdictions: United Kingdom
• conflicts of interest relating to the misuse of confidential client information—current issues: the legal framework, the aftermath of Martin v. Gray
• the implied undertaking of confidentiality—theory and practice; a brief look at confidentiality and sealing orders
• privilege and complex class actions: in-house litigation privilege, differences in approaches to privilege in Canada and the US, joint defence agreements, electronic documents and practical tips for maintaining privilege, practice tips for preserving privilege
• confidentiality clauses in settlements: options that should be considered to maximize the effect of a confidentiality clause