Presentation breakdown: -Ethics and lawyers -Small Farmers Act: How big is small? Ethical issues -Moral intuition -Cognitive biases -Authority effect

1. CPD Professionalism Program
for General Counsel
November 9, 2015

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

3. agenda
• Introductions and Objectives
• Project Management Fundamentals
• Framework for Legal Project Management
– Define
– Plan
– Monitor and Manage
– Review and Improve

4. introductions
• Rick Kathuria, National Director PMO and Legal Logistics
• Bryce Kraeker, Partner

5. 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

6. 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

7. A four step-framework
making LPM easy for
us and our clients
gowlings practical™ framework

8. 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

9. roles on a legal matter (overall)
 Client Sponsor
 Client Team
client team
 Lead Lawyer
 Matter Team
 Legal Project Manager
legal team
third party
Note: A person can play multiple roles a matter.

10. 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

11. 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

12. Slide 12
types of pricing arrangements

13. 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

14. 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
Key Client Responsibilities
gowlings practical™ framework - plan

15. Slide 15
sample plan template – transaction

16. Slide 16
sample plan template – litigation

17. Slide 17
sample project plan template – task view
Assumptions
Links to precedents

18. 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?

19. Slide 19
sample staffing profile
Lawyer - 15+
Lawyer - 9-14
Lawyer - 5-8
Lawyer - 1-2
Clerk/Paralegal
Internal Counsel

20. 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
Client Sponsor, Matter/Client
Team
 Status reports
 Addendums to engagement letter
Key Legal Team Responsibilities
 Provide direction on new circumstances
 Provide feedback
Key Client Responsibilities
gowlings practical™ framework – monitor & manage

21. Slide 21
overall progress and task view
Progress
Status

22. 4 Review & Improve
 Lessons learned
 Client satisfaction
R
A
C
I
LPM
Lead Lawyer
Client Sponsor, Matter/Client
Team
Lead Lawyer, Client Sponsor
 New and updated precedents
 Historic matter data for comparison
Key Legal Team Responsibilities
 Provide feedback
Key Client Responsibilities
gowlings practical™ framework – review & improve

23. questions?
• Bryce Kraeker, Partner
– Bryce.Kraeker@gowlings.com
– 519-575-7545
• Rick Kathuria, National Director PMO and Legal Logistics
– Rick.Kathuria@gowlings.com
– 416-814-5613

24. Ethics and the Law:
In-House Counsel’s Dilemma
November 9, 2015

25. 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. 26
• Ethics and Lawyers
Can a good lawyer be
a good person?
- Charles Fried

27. 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. 28
• Testimony of Enron’s lawyers before
Congressional Committee:
“We did everything
in an ethical manner.”

29. 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. 30
• Perspectives on Role:
“Hired Gun” “Counsellor”

31. 31
• Perspectives on Role:
• Lawyer
+
• Employee

32. 32
• Perspectives on Role:
• “Cop”
• “Counsellor”
• “Entrepreneur”

33. 33
• Integrity:
• Reflection
• Acceptance of Role’s Implications

34. 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. 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. 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. 37
• Casey at the Tee

38. The Rider and the Elephant

39. 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. 40
• Cognitive Biases
• Obedience to Authority
• Conformity
• Over-confidence
• Egocentrism
• Confirmation

41. 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

42. CONFORMITY
42

43. OVER-CONFIDENCE
43

44. SELF-SERVING BIAS
•Emotion Based Judgments
•Automatic Decisions
•“The (Honest) Truth about Dishonesty”
44

45. BOUNDED ETHICALITY
•Intended Behaviour
vs.
Actual Behaviour
45

46. BOUNDED ETHICALITY (cont’d)
•Intended Behaviour
vs.
Actual Behaviour
Unintentional Unethical
Behaviour
46

47. BOUNDED ETHICALITY
47
Prediction
Forecasting Errors
Recollection
Memory revisionism
Shifting Standards
Decision Time
Ethical 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 Tenbrunsel
Copyright  2011 Princeton University Press

48. WE’RE ONLY HUMAN
•Fatigue
•Hunger
•Time Pressure
•Ambiguity and Complexity
48

49. 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. 50
• Objectives:
• Awareness and recognition
• Enhance capacity to exercise judgment

51. 51
• Focus on the Elephant
• Importance of narrative
• Compliance programs:
• rules-based
• values-based
• Procedural fairness

52. 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?

53. CASE STUDY
•Things that Go Boom in the Night
(and Ruin Your Day)
53

54. Thank You
montréal  ottawa  toronto  hamilton  waterloo region  calgary  vancouver  beijing  moscow  london
Michael Herman
Partner
Gowlings Toronto
416.369.7281
michael.herman@gowlings.com

55. Conflicts From Both Sides of
the Fence - Outside Counsel
and the GC
November 9, 2015

56. 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
57

58. Who’s the client?
Getting off the Record
• External counsel
• Inside counsel dilemma
58

59. Who’s the client?
• Giving advice beyond your employer
• LawPro issues
59

60. McKercher decision
CNR v. McKercher
60

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.
61

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
62

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”
63

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”
64

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
65

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
66

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….”
67

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.”
68

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
69

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?
70

71. • Acting against a client in an unrelated matter
with screens in place
• GCs....what’s the problem?
71

72. Thank You
montréal  ottawa  toronto  hamilton  waterloo region  calgary  vancouver  beijing  moscow  london
R. Ross Wells
Waterloo Region Managing Partner
519-575-7513
ross.wells@gowlings.com
Rosa Lupo
Partner
519-575-7511
rosa.lupo@gowlings.com

73. 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.

74. Thank You
montréal  ottawa  toronto  hamilton  waterloo region  calgary  vancouver  beijing  moscow  london