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Mark Tonkovich and Stephanie Dewey

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After IGGillis Holdings: Protecting privilege when giving common legal advice

By Mark Tonkovich and Stephanie Dewey March 26, 2018 26 March 2018

After IGGillis Holdings: Protecting privilege when giving common legal advice

 

The Federal Court of Appeal’s recent decision in IGGillis Holdings brings comfort and certainty to transactional and advisory lawyers working collaboratively in today's complex legal environment.  While the case arose in the context of a tax audit, its teachings on privilege should reach all areas of practice.

IGGillis Holdings soundly affirms that sharing legal advice with other transacting parties, or working together with other parties' lawyers to develop that legal advice, will not waive solicitor-client privilege where the collaboration is done in pursuit of a transactional common interest.  As explained in CBA National last fall, the CBA intervened in this closely-watched appeal to assist in fully canvassing the underlying issues and the common practices of the Canadian bar.

The CBA argued in its factum that "[t]he more significant and complicated a legal issue, the more likely that clients will engage teams of specialized lawyers across multiple firms to jointly provide legal advice to them."  The practice of active collaboration between different parties and their respective lawyers was thrown into serious doubt by the Federal Court's earlier ruling, which held that the common interest exception to the waiver of privilege rule did not apply in the transactional or advisory (non-litigation) context. 

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