Canadian Lawyer InHouse

JANUARY 2016 8 INHOUSE News Roundup A roundup of legal department news and trends brands are in some cases drafting terms and conditions for promotions and the compliance they came up with was "completely wrong." "The message is that companies are aware of it but in some cases don't want to do any - thing or they are aware but are doing things wrong," says Szentesi. "A lot of [ad] agencies field the legal advice for their clients." Once the private action regime is in force in July 2017, it could be open season on companies that have failed to comply. "I think plaintiff's counsel are essentially building cases against companies that are clearly doing it wrong," says Szentesi. Szentesi predicts there will be a significant amount of private enforcement. "The damages are $200 per infraction, so $200 per e-mail up to $1 million a day. It's just too easy to bring the cases after 2017. They may have a sense it's theoretically severe, but we haven't seen the CRTC do a lot in the first year and a half. I think the plaintiff's counsel are going to be much more aggressive." IH What do in-house counsel value from their external lawyers? E xternal counsel should pay attention as their in-house clients are keeping tabs on their performance even when they're acting on the other side of a deal. Three in-house counsel shared insights into how they choose external counsel dur - ing the Legal Marketing Association's an- nual general counsel panel discussion on Oct. 29 in Toronto. Stephanie Robinson, associate general counsel and managing director for capital markets at BMO Financial Group, Cath - erine Forbes, senior legal counsel at Holt Renfrew & Co. Ltd., and Nikki Latta, asso- ciate general counsel at Deloitte LLP, took questions from Lexpert editor-in-chief Jean Cumming during the discussion. Latta said she's often influenced to work with lawyers based on past experiences with external counsel on other matters where they may have been acting opposite to her. She recalled a recent large transformation contract in which the lawyer she chose to work with was one she had worked opposite to on another implementation. "I selected him because he was calm and had the right demeanour to fit in with our negotiating team. That's happened more and more fre - quently. Encourage your lawyers, even when they're acting opposite us, to think about the longer-term relationship. Don't fool yourself if you have a bad experience in Calgary that we're not hearing about it in Toronto." Latta said Deloitte frequently uses "a few key strategic lawyers" who have taken the time to "understand our business and un - derstand who we are," which means there isn't a steep learning curve each time they take on a file. "A lot of the lawyers who get a lot of work from us learn about us, know about us, and approach us when they think there is some - thing they think we may not have approached them about that they think we should be get- ting into. There are opportunities to differ- entiate by jumping in and knowing who we are and what we do," she said. Robinson said external firms should en- gage inside counsel to understand where their internal "hot-button issues" exist and where there may be disconnects over how one group works compared with another. While in-house counsel are under pres - sure to find cost savings and arrive at alter- native fee arrangements and value-based billing, Robinson said that's not the first thing she's looking for when working with external counsel. "My message to counsel would be that no one really has a silver bullet when it comes to any of that and where it has to start is com - munication and starting a conversation and keeping it going through the life of a mat- ter," she said. Panel members agreed that offering edu- cational services in terms of seminars or training for a company's business units is considered valuable. For example, work- shops for a marketing group on copyright issues can be helpful, which alleviates the load on in-house counsel to be the ones to provide that training. Latta said that when a company has a "true fire drill," it can definitely leave a last - ing impression in terms of how external counsel responds. She recalled a time when she was relative- ly new at Deloitte and was working over the holiday period. During a crisis, a contact at one of the company's primary law firms found her a litigator immediately who was able to solve the problem. "If you have a trusted adviser in a particular area, you're going to continue to go to them and you won't nickel and dime them about 10-per-cent discounts," said Latta. "You will go to them because they are thoughtful and they know your business. It sets you apart. Act as a gatekeeper for us. Your firms are huge and we need a specific set of expertise." The panel members also emphasized that they read their bills closely to find items they haven't agreed to pay for. "I would encourage your partners to read the bills before they send them through to make sure they are appropriate and accu - rate," said Latta. From a billing perspective, the panel suggested external counsel should consider carefully how they bill for legal advice. One particular example provided was one in which the client was billed for setting up a conference call. "Really? I can set up a conference call," said Latta. "That shouldn't be on the bill. In principle, it matters. "It may only be $500, but that makes a difference sometimes." IH

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