Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50878
Mitigating risks in a company are often subject to con- flict of interest guidelines and in-house counsel will often be called upon to assist with interpreting those guidelines and ensure they are doing the right thing." The premise of monitoring con- flicts of interest is integral to mitigating the company's liability risk exposure. Therefore, in-house counsel are increas- ingly called upon to implement and inform employees and board members about the gamut of prospective conflicts, which could range from doing business with a company that an employee, man- ager, or board member has an interest in, to compelling an outside law firm retained in a legal matter to deal with a possible conflict if it has a competing company as a client. Wylynko has also been dealing with the issue of gifts exchanged between corporate entities. "It's not uncommon for sales reps, for instance, to provide a gift to a client or receive a gift. But in- house lawyers will often be called in to determine if it complies with the code of conduct or if it goes too far." Wylynko said when dealing with so many personalities within a company, there can be instances pulling the coun- sel's attention away from their purpose. Ultimately, in-house counsel must be mindful of their key client, which is the company by which they're employed. "As counsel, your loyalty is to the com- pany so you always have to remember who the client is," Wylynko said. Jeffrey Leon, a partner in the liti- gation group at Bennett Jones LLP, served as chairman of the conference and acknowledges corporate lawyers are increasingly required to do more with less, so they need to prioritize. "In today's economic climate, legal depart- ments may find themselves short-staffed and without adequate resources. So it's important they make every attempt to deal with that in terms of reporting to the board and senior managers" about new developments, case law, or any problems they've encountered. There has been very little recent case law in Canada involving corporate counsel liability, although developments emanating from the courts in the U.S. — particularly regarding matters initiated by regulatory bodies — should serve as a prospective red flag. Due to the recent focus on corporate wrongdoing generally, in-house counsel must make the time to both keep up with case law developments and ensure they have a good means of dialogue with their company's board. "In-house counsel should regularly discuss their obligations and responsibilities with the board so the board understands their role," Leon says. "Establishing a formal compliance and monitoring program helps, as does keeping up on recent developments in the law." IH 32 • FEBRUARY 2010 Untitled-5 1 INHOUSE 12/23/09 2:39:28 PM