Last week we talked about the attorney-client privilege. Now let's discuss how to use it. Here are five tips to help you use the privilege to shield internal audits and other information from disclosure. There's also a model memo in the Tools section of SafetyXChange that you can adapt.

Tip 1: Involve Attorney from Outset

Get the attorney involved at an early stage. For example, talk to your attorney before conducting a special audit to determine your organization's compliance with OSHA recordkeeping requirements. Running the audit reports through your attorney will make them easier to protect.

Take the same measures when handling the reports of any outside consultants you use. Ask your attorney for legal advice on the issue being audited. If possible, position things so the attorney hires the consultant to aid in the legal work.  The consultant should also report back to the attorney rather than to your organization.

Tip 2: Put the Request for Legal Advice in Writing

To invoke the privilege, an attorney must be giving advice to a client in the capacity of an attorney as opposed to, say, an officer of the corporation. So make a request for legal advice and put it in writing. This is especially important for corporations where the in-house attorney is also a compliance director, corporate secretary or other officer. The writing should make it clear that you're seeking advice from the person as an attorney, not as an officer, like the Model Memo in Tools does.

Tip 3: Separate Legal from Business Duties

To avoid blurring the lines between persons who act as both corporate attorneys and officers, consider separating the functions. If the attorney sticks to legal functions, you won't have to explicitly state that you want legal advice each time you consult him.

Tip 4: Mark Information as Confidential

To keep sensitive information like internal safety audit results confidential mark them with the words "attorney- client privilege." Many attorneys do this as a matter of course. But clients often don't realize they should or forget to do this. Marking something as privileged will alert whoever handles it to take special steps to protect it and guard against accidental disclosures.

Caveat: Simply marking information "privileged" won't automatically protect it. The privilege only protects legal advice, not business advice or facts. So, for example, you probably can't protect the resultsof a standard safety audit or accident investigation just by marking them "privileged and confidential."

Tip 5: Don't Disclose Privileged Information to Third Parties

A privilege can be waived if you disclose privileged information to third parties. So keep privileged memos and other documents away from people who don't need to see them. If a third party does need to access to review privileged materials, reveal only the information necessary to carry out the purpose of the review and make sure they know that the documents are confidential.

Example: If you hire a remediation consultant to advise on potential OSHA violations you identified during a special self-audit, don't share the full results of the audit with him. Prepare a new report that tells him what issues you want him to consider. Tell him that all documents he reviews are confidential and must be returned as soon as possible after accessed.

One good way to keep privileged documents confidential is to place them in a locked filing cabinet marked "Protected by Attorney-Client Privilege." This will let investigators know that the materials are privileged and protected from any search warrant they may have.

THE CANADIAN PERSPECTIVE

As noted last week, safety coordinators in Canada can rely on the solicitor-client and contemplated litigation privilege to keep internal documents confidential documents. Last week, we discussed the latter privilege. So now let's focus on the former one.

Solicitor-Client Privilege

Establishing the solicitor-client privilege is trickier than many think. "There's a popular misconception among safety professionals - and even some lawyers who are not OHS experts - that all you have to do is give your lawyer a copy of the document and it will be privileged," warns Ontario OHS consultant Yvonne O'Reilly. But just sharing the document with a lawyer or getting the lawyer involved in what is essentially a routine incident investigation doesn't cut it. The document must be part and parcel of the confidential communication between lawyer and client for the purpose of obtaining legal advice. More precisely:

• The document must be part of a communication between you and your lawyer;
• The communication must be made in confidence; and
• The purpose of the communication must be to seek legal advice - even if the communication isn't for the purpose of dealing with a specific lawsuit.

Example: An Ontario court ruled that a company's internal environmental audit was covered by the solicitor-client privilege because it was prepared for a lawyer to review for the purpose of seeking legal advice [McCarthy Tétrault v. Ontario Ministry of the Environment]. However, the outcome would have been different if the lawyer had simply accompanied the manager on a routine internal audit. In that case, the document would not have been privileged since it wasn't prepared for the purpose of getting a lawyer's legal advice. In other words, just having a lawyer on hand doesn't trigger the privilege; the document must be part and parcel of the counseling process.

POP QUIZ

U.S. v. Canada: Which Country's MSDS Rules Are Stricter?

Glenn Demby

Both the U.S. and Canada require employers to keep Material Safety Data Sheets (MSDSs') at the workplace for each hazardous product to which they're workers are exposed. But in which country are the requirements more stringent in terms of the content the MSDS must display?

Answer: Canada

Explanation: Both countries require the MSDS to include the same basic information - product ingredients, physical characteristics, precautions/PPE, first aid measures, etc. But Canadian WHMIS rules are more specific about the presentation and format of how information is displayed on the MSDS than is the OSHA Hazard Communication Standard.

Example: Under WHMIS, the required information must be displayed in nine specifically marked sections; Haz Com doesn't say anything about separately marked sections.

Implication: If you're a Canadian employer, you may not be able to rely on an MSDS prepared to meet OSHA standards to satisfy your legal obligations under WHMIS.

AUTHOR WANTED

As many of you may be aware, there's a global effort to standardize the MSDS so that one form will work in all workplaces. If any of you SafetyXChange members out there are familiar with MSDS standardization, please submit an article to glennd@bongarde.com. Of course, submissions on other legal topics are greatly needed and appreciated.

Glenn Demby
Editor-in-Chief
SafetyXChange

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