Ethics and the law: In-house counsel's dilemma

CPD Professionalism Program for General CounselNovember 9, 2015

Legal Project Management: The roles and responsibilities of law firms and in-house counsel

agenda

• Introductions and Objectives• Project Management Fundamentals• Framework for Legal Project Management

– Define– Plan– Monitor and Manage– Review and Improve

introductions

• Rick Kathuria, National Director PMO and Legal Logistics

• Bryce Kraeker, Partner

Slide 5

benefits of legal project management

value knowledge

appropriate workefficiency

get paid for the work completedpredictable cost

clarity on each matter

enhance trust/relationships/teamwork

client satisfaction

clients participants law firm/dept

Every project has three key constraints that must be considered together.

The consequences of scope changes should be explained to clients proactively

iron triangle – triple constraints

A four step-framework making LPM easy for us and our clients

gowlings practical™ framework

http://www.youtube.com/embed/ekz0MBVHhSg?autoplay=1

case study #1 – Project Rio

• North American engineering and environmental consulting firm

• Privately held and owned by over 100 shareholders• Approximately $300 million merger with a global

engineering firm• Partial cash and exchangeable shares

consideration with Canadian shareholders acquiring approximately one-third of the global firm

roles on a legal matter (overall)

Client Sponsor Client Team

client team Lead Lawyer Matter Team Legal Project Manager

legal team

third partyNote: A person can play multiple roles a matter.

Slide 10

RACI matrix

People responsible to complete the tasks

The one (and only one) person accountable for the outcome

People who add knowledge and expertise

People affected by the outcome – Stakeholders

R

A

C

I

Responsible

Informed

Accountable

Consulted

1 Define Matter goals Client objectives Scope of work Timing Staffing Value

Understand client expectations

Key Legal Team Responsibilities Clearly articulate expectations and a

definition of success

Key Client Responsibilities

R

A

C

I

Lead Lawyer

Lead Lawyer

Client Sponsor

Matter/Client Team, LPM

gowlings practical™ framework - define

Slide 12

types of pricing arrangements

2014 Corporate Counsel Survey• In-house counsel are

changing the conversation regarding billing options with their law firms.

• When in-house counsel identified their “primary” arrangement, the billable hour is still the most predominant billing method, but there was a considerable drop from 55% to 47%

Source: http://www.canadianlawyermag.com/5353/Seeking-alternative-arrangements.html

http://www.canadianlawyermag.com/5353/Seeking-alternative-arrangements.html

2 Plan Agree scope; assumptions Establish plan; key milestones Allocate resources Identify baseline fee estimate

R

A

C

I

LPM

Lead Lawyer

Client Sponsor

Matter/Client Team

Engagement Letter outlining plan with scope, fees and assumptions

Key Legal Team Responsibilities Review, validation and feedback on

scope, fees and assumptions


gowlings practical™ framework - plan

Slide 15

sample plan template – transaction

Slide 16

sample plan template – litigation

Slide 17

sample project plan template – task view

Assumptions

Links to precedents

efficiency / value

• Does it need to be done?• What’s the “best” resource to do it

– Internal– Level of external resource

• Reasonable cost / What is it worth?

Slide 19

sample staffing profileLawyer - 15+

Lawyer - 9-14

Lawyer - 5-8

Lawyer - 1-2

Clerk/Paralegal

Internal Counsel

3 Monitor & Manage Track progress (dockets) Identify variations

(scope, schedule, estimates) Take corrective actions Identify and track risks Communicate status

R

A

C

I

LPM

Lead Lawyer

Client Sponsor, Matter/Client Team


Status reports Addendums to engagement letter

Key Legal Team Responsibilities Provide direction on new circumstances Provide feedback


gowlings practical™ framework – monitor & manage

Slide 21

overall progress and task view

Progress

Status

4 Review & Improve Lessons learned Client satisfaction

R

A

C

I

LPM

Lead Lawyer


Lead Lawyer, Client Sponsor

New and updated precedents Historic matter data for comparison

Key Legal Team Responsibilities Provide feedback


gowlings practical™ framework – review & improve

questions?• Bryce Kraeker, Partner

– [email protected]– 519-575-7545

• Rick Kathuria, National Director PMO and Legal Logistics– [email protected]– 416-814-5613

Ethics and the Law: In-House Counsel’s DilemmaNovember 9, 2015

25

•Ethics:

• Well-based standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness or specific virtues

26

•Ethics and Lawyers

Can a good lawyer be a good person?

- Charles Fried

27

•Importance of Role:

• Legal ethics as a system of norms, values and standards of behaviour intrinsic to one’s role as a lawyer

28

• Testimony of Enron’s lawyers before Congressional Committee:

“We did everything in an ethical manner.”

29

• Testimony of Enron’s lawyers before Congressional Committee:

“In our role as lawyers acting for our client, we did everything in an ethical manner.”

30

•Perspectives on Role:

“Hired Gun” “Counsellor”

31


• Lawyer +• Employee

32


• “Cop”• “Counsellor”• “Entrepreneur”

33

•Integrity:

• Reflection• Acceptance of Role’s Implications

34

•Small Farmers Act: How Big is Small?The Small Farmers Act (Canada):

32. Control means with respect to any Person at any time (i) holding, whether directly or indirectly, as owner or other beneficiary (other than solely as the beneficiary of an unrealized interest) securities or ownership interests of that Person carrying votes or ownership interests sufficient to elect or appoint 50% or more of the individuals who are responsible for the supervision or management of that Person.

156. Person means a natural person, partnership, limited partnership, company or corporation, joint venture, sole proprietorship.

35

•Ethical Issues: Hard to Indentify

“Most of us think the important ethical decisions in our lives will be delivered with a blinking red neon sign: CAUTION: IMPORTANT DECISION AHEAD… The problem is life….comes with no warning signs.”

- Clayton Christenson

36

•Ethical Issues: Hard to Resolve

“Being an ethical lawyer is challenging….a lawyer is required to strike the difficult balance between competing ethical obligations so as to make the best ethical decision she can.”

- Alice Wooley

37

•Casey at the Tee

The Rider and the Elephant

39

•Moral Intuition• Sudden appearance in consciousness of evaluative

feelings

• Absence of conscious awareness of investigation, analysis, evidence weighing, reaching conclusion

•Subsequent search for reasons to justify the judgment to self or others

40

•Cognitive Biases• Obedience to Authority

• Conformity

•Over-confidence

•Egocentrism

•Confirmation

41

•Authority Effect •the CEO or CFO as business person knows best

•the senior lawyer on the file knows best

•the corporation knows best

OBEDIENCE TO AUTHORITY

CONFORMITY

42

OVER-CONFIDENCE

43

SELF-SERVING BIAS

•Emotion Based Judgments

•Automatic Decisions

•“The (Honest) Truth about Dishonesty”

44

BOUNDED ETHICALITY

•Intended Behaviour

vs.

Actual Behaviour

45

BOUNDED ETHICALITY (cont’d)

•Intended Behaviourvs.

Actual Behaviour

Unintentional Unethical Behaviour

46

BOUNDED ETHICALITY

47

PredictionForecasting Errors

RecollectionMemory revisionism Shifting Standards

Decision TimeEthical Fading

Visceral responses

“I should behave ethically…therefore I will”

“I should have behaved ethically…therefore I did”

“I don’t see the ethical implications of this decision…so I do what I want to do”

-------------------------------------------------------------------------------------------Want

Should

From “Blindspot” by Max Baxerman and Ann TenbrunselCopyright 2011 Princeton University Press

WE’RE ONLY HUMAN

•Fatigue

•Hunger

•Time Pressure

•Ambiguity and Complexity

48

49

•Potential Effect on Legal Ethics•Morals of the marketplace

•Client seen as decision maker

•Commercialisation of law

•Privatizing of lawyers’ professional conduct

•Organizational culture

50

•Objectives:• Awareness and recognition• Enhance capacity to exercise judgment

51

•Focus on the Elephant• Importance of narrative

• Compliance programs:

• rules-based

• values-based

• Procedural fairness

52

•Focus on the Elephant• Identity Model:

• Who am I?

• What kind of situation is this?

• What would someone like me do in this situation?

CASE STUDY

•Things that Go Boom in the Night (and Ruin Your Day)

53

Thank You

montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london

Michael HermanPartnerGowlings Toronto

[email protected]

Conflicts From Both Sides of the Fence - Outside Counsel and the GC

November 9, 2015

56

Agenda

1. Who is the Client?

2. McKercher decision: a new test for conflicts?

57

Who’s the client?

• Conflicting instructions CEO & Board• Inside counsel response• External counsel response

58

Who’s the client?

Getting off the Record

• External counsel• Inside counsel dilemma

59

Who’s the client?

• Giving advice beyond your employer• LawPro issues

60

McKercher decision

CNR v. McKercher

61

Conflict Screen

At Gowlings: a “Matter” (single file) Screen:• Two teams established – professionals and staff

(“Trustees”)• Firm wide announcement of screen• Trustees and those self-identifying give undertaking• Only Trustees on one side can access file,

documents, dockets etc.

62

Conflict Screen

A screen doesn’t cure a conflict. • Putting up a screen may be a condition of getting

client consent• A screen can be appropriate in a matter which is not

a “dispute”• Putting up a screen may be something done after a

conflict is addressed

63

Preliminary concepts

• The “unrelated matter”• The law firm wants to act for client A on a lawsuit

against B• Search B’s name • The law firm does not act for B on the new lawsuit, but

does act for B on other matters• This is the potential “unrelated matter” conflict

• McKercher is all about “unrelated matters”

64

McKercher decision

• Essential facts:• McKercher firm was CN’s “go to” firm in Saskatchewan• McKercher had three matters on for CN at the time

• (i) a real estate acquisition, • (ii) a receivership and • (iii) a personal injury defence

• McKercher launched a $1.75 billion class action against CN

• CN applied to have McKercher disqualified as counsel on the class action

“Bad facts make bad law”

65

McKercher decision

• At SCC, held:

• McKercher breached its duty of loyalty to CN• SCC of necessity must have found CN not a

“professional litigant” (though no express statement)

• Should McKercher be disqualified? SCC sent the case back to the lower court to decide remedy, i.e., to disqualify or not

• McKercher had no confidential information about CN

66

McKercher decision

• McKercher’s main issue was an “unrelated” matter situation

• McKercher firm was acting for the class action plaintiffs but did not act for CN on the lawsuit

• McKercher firm acted for CN only on other matters “unrelated” to the class action

67

McKercher decision

• SCC endorsed its own “bright line” test from R. v. Neil (2002):

“A law firm “may not represent one client whose interests are directly adverse to the immediate interests of another current client – even if the two matters are unrelated – unless both clients consent….”

68

McKercher decision

• SCC then tried to set out a practical test as well:

“When a law firm is asked to act against an existing client on an unrelated matter, it must determine whether accepting the retainer will breach the bright line rule. It must ask itself whether (i) the immediate legal interests of the new client are directly adverse to those of an existing client, (ii) the existing client has sought to exploit the bright line rule in a tactical manner; and (iii) the existing client can reasonably expect that the law firm will not act against it in unrelated matters.”

69

McKercher decision

• In a Post-McKercher World:

• Law firm’s key issue: To determine when an existing client can be presumed to reasonably expect that the law firm would act against it in this unrelated matter

70

McKercher decision

• When is it reasonable for a client to expect the firm not to act against it?• Relevant factors:

• Can consent be inferred? Is an existing client a “professional litigant”?

• What is the nature of the relationship of the firm with the existing client?

• What are the terms of the retainer with that client?• What are the types of matters on which the firm acts for

that client?

71

• Acting against a client in an unrelated matter with screens in place• GCs....what’s the problem?

Thank You


R. Ross WellsWaterloo Region Managing [email protected]

Rosa [email protected]

CPD Credits

This program will count for up to three hours of Professionalism credit toward the mandatory requirements of the Law Society of Upper Canada. It will also count for up to three hours of Professional Responsibility and Ethics and Practice Management credit under the requirements of the Law Society of British Columbia, and for up to three hours of CLE credits under the requirements of the Barreau du Québec.

Thank You
