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opinion significant shareholder of that corpora- tion. (In most cases, this is also true if the corporation is private.) But how compelling dual representation can be — particularly if the shareholder is a controlling shareholder! "Me, my com- pany — what's the difference?" the con- trolling shareholder might ask the law- yer who represents "his" company. The dilemma is even worse if the controlling shareholder takes the position that it's a package deal; you can't have the corpo- ration without him, or him without the corporation. Take it or leave it. The same principle applies to repre- senting both the corporation and the CEO or other members of senior man- agement, and it applies in spades if the CEO is that pesky controlling share- holder we were just talking about. You shouldn't do it. Management and the corporation can easily have fundamen- tally different interests. That leaves the question of whether it's all right for a lawyer who represents a corporation to sit on its board of direc- tors. Again, this can be so tempting! Part of it is about power — it's better to be the master than just a legal servant. Part of it is about security — it's harder to get rid of a lawyer if he is also a director of the corporation. And part of it is about recognition — "It's official, I'm on the board; the company really thinks I'm a valuable business guy and not just some legal hack." The Law Society of Upper Canada has views on lawyers acting as directors. A recent "practice tip" published in the Ontario Reports said: "As a lawyer, you must not allow this outside interest to jeopardize your professional integrity, independence, or competence. You must not allow your directorship to impair the exercise of your independent judgment on behalf of your client." The tip advised checking for conflicts of interest "on an ongoing basis." I don't think that the law society's vague advice is very helpful. A company director has a distinctive point of view and particular fiduciary duties. For ex- ample, he is obliged to scrutinize man- agement, and in some circumstances may have to challenge it aggressively. This is the same management that gives instructions to the company's lawyer. Is it reasonable to expect the lawyer/direc- tor to take instructions from the chief ex- ecutive officer in the morning, and then quiz him relentlessly at a board meeting in the afternoon? And it's all very well to advise checking for conflicts of interest on an "ongoing basis," but what does that mean? A quick item-by-item check as you move down the agenda for a board meeting? It's pretty clear. A company's lawyer should not serve on the board of direc- tors. That's the prudent course. And he should never — ever — represent a sig- nificant shareholder or member of senior management. DD CL HRHLFB Frntr 03 ad 4/3/08 4:46 PM Page 1 Need a height adjustment? select OFFICE & FURNITURE PRODUCTS Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com NEW AFFORDABLE HEIGHT ADJUSTABILITY The latest ergonomic table system from BRC. Like its big sister Motion, it is ruggedly built with all steel legs and top frame and easily complies with ANSI BIFMA specifications. Moves up and down instantly at the touch of a button. U PREFERRED SUPPLIER E yourONE source supplier for Office & Furniture Products Corporate Promotional Products Printing & Graphic Services Law Office Essentials Corporate Supplies Search & Registration Services C OFFICE & FURNITURE PRODUCTS Email: andrew_jackson@dyedurham.ca OR call Andrew: 416 412 4551 www. C ANADIAN mag.com M AY 2008 31 W e ' r e D a y C S a 8 I E 9 n H a p N & d 9 i m R a 1 C D n o a n A Y M