2 McCarthy Tetrault Lawyers Testify About Files for a Current Client, the Ex-CEO of Nortel Networks

Updated: In what may be the first such testimony ever in a Canadian white-collar crime trial, two Bay Street lawyers for a former CEO of a major corporation are being called upon to offer potentially incriminating evidence against the client they are representing in ongoing legal proceedings.

Attorneys Tom Heintzman and Junior Sirivar of McCarthy Tétrault testified Tuesday in a Toronto fraud case concerning their legal files about ex-CEO Frank Dunn of onetime telecom giant Nortel Networks Corp., the Financial Post reports.

Although they sought to assert traditional attorney-client privilege, the lawyers were required to testify about notes they took during conversations their client had with third parties, on the theory that these matters were adversarial rather than confidential, the article explains.

“This is completely unprecedented,” said an unidentified lawyer described by the Financial Post as “close to the trial.”

The Globe and Mail and the Toronto Star also have stories.

However, a subsequent Globe and Mail article says a judge must still rule on whether the attorney notes are admissible before the lawyers testify in greater detail.

Dunn’s lawyer, Mark Sandler, argued Wednesday that a litigation privilege applies and said the government has alternative ways of getting evidence in the case against Dunn. A prosecutor is expected to argue to the contrary later on Wednesday.

Justice Frank Marrocco of the Ontario Superior Court will then rule on the issue at a later date.

Related coverage:

ABAJournal.com: “9th Circuit Says Privilege Waived re Superman Comic Docs Stolen From Lawyer and Sent to Warner Bros.”

Updated at 2:20 p.m. to include information from subsequent Globe and Mail article.

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