Canadian Lawyer InHouse

NOVEMBER/DECEMBER 2015 46 INHOUSE By Jason Young In Closing I n her annual report on Internet trends, Mary Meeker, venture capitalist and infl uential tech- nology observer, noted that the rise of mobile connectivity and the increase of online market- places such as Shopify and Etsy, and platforms such as Uber, Grabb and Airbnb, are changing the way an increasing number of people pay and get paid. I like this observation, because it illustrates the trans- formation in the payments industry. Payments used to be the domain of banks, but no longer. Changing consumer behaviour, new business models, and tech- nology innovation are rapidly democratizing payments. As barriers to participating in payments fall and the systems become dizzyingly complex, there are calls for increased transparency, effi ciency, and consideration of the public interest. Payments has become social infra- structure, invested with a public dimension comparable to utilities, roads, and health care. Not surprisingly, policymakers and regulators in Canada, and around the world, are scrambling to understand and address the potential risks associated with the new payments landscape. In the past year, the Canadian federal government has amended anti- money-laundering and terrorist fi nancing legislation, modernized regulations around how fi nancial service providers can identify their customers, expanded the oversight powers of the Bank of Canada, increased the accountability and governance of the Canadian Payments Association, and extended the code of conduct for the credit and debit card industry to apply to mobile transactions. Additionally, the Bank of Canada and the federal Department of Finance have launched broad consultations on prominent payment and retail payment systems, respectively, to assess risk and consider whether further changes are required. Without hyperbole, the pace of change is breathtaking. It's a fascinating time to be a lawyer in payments. I was attracted to law as a career because I felt it would offer a life of continuous learning. It has helped me grow more than I ever anticipated. In the beginning of my career, I naively assumed that my education would come from leather-bound books and jurisprudential discourse. I also assumed the subject matter would exclusively be the law. I dismissed the old axiom that law students know more law at graduation than they will at any other point in their career. I still reject it. However, I can now say that I spend most of my time understanding policies, products, technology, strategies, and the markets in which my clients operate. These are the factual matrices that inform my legal analysis and counsel. This brings me to my fi rst point. We become lawyers by virtue of our call to the bar. But to earn a place at the table as trusted advisers, we need to draw upon more than legal acumen. There is often a fi ne line between legal and business risk and very rarely does one stand without the other. As in-house counsel, we are sought out for our judgment, our ability to sort through the chaff, our institutional knowledge and networks. We earn these not only from our tenure but also from our vantage and will often be called upon for those things. This brings me to my second point. Our partici- pation in the business must be balanced against our role as guardians of the company's reputation and, of course, our obligations to the legal profession. In-house counsel typically has many internal clients and it is a perennial struggle to balance competing interests when they arise. Our ultimate client is the company itself, but that can legitimately mean different things to differ- ent people. For example, as regional head of the legal function in a global organization, the balancing exer- cise requires that I consider the needs of the regional business unit and the company's best interests in the region and to articulate and advocate a view that ad- dresses the company's regional needs in relation to its global framework. Let me conclude with an observation and caveat. As our factual matrix becomes more complex and we fi nd ourselves, as lawyers, being drawn ever more intimately to the business almost by necessity, we will be required to play roles and perform functions that are less clearly legal in nature. This will have consequences, includ- ing for confl icts of interest and legal privilege. We must take care to be clear to our clients and, most impor- tantly to ourselves, as to which hat we are wearing and when. Our ethical obligations demand it. IH The in-house balancing act As the challenges of global organizations become more complex, corporate counsel will be drawn in to tasks that are less clearly legal in nature. Jason Young is head of legal and business ethics offi cer for PayPal Canada. He is based in Toronto.

• Cover