- Dan – I'm pleased to report back on our July Risk Roundtable sessions in Toronto. We had great turnout across a variety of roles including: general counsels, CIOs, national directors, and KM directors. There were lots of familiar faces and a few new folks, as well. Attendees pointed to a number of changes on the short-term horizon.
- First, conflicts reform still remains on the radar, and Simon Chester at Heenan Blaikie spoke about his work with the Law Society to make it real. The CBA Task Force on Conflicts of Interest delivered their final report and recommendations August 2008 and is looking forward to bringing it into practice.
- Simon also recommended that we keep an eye on the Wallace Action that’s making its way through the Saskatchewan courts. It has the potential to be the fourth major conflicts case in the Supreme Court of Canada.
- Third, the Law Society of British Columbia is considering "sophisticated client" exceptions to current conflict rules. This would allow more flexibility when dealing with large savvy clients.
- Next, with several knowledge management directors in the room, we had a good dialogue about the challenges of balancing collaboration and confidentiality. Several suggested that overly-restricting access to internal materials can unnecessarily impede the value having smart people working together. Compliant collaboration seems to be the target, the sweet spot that allows the firm to be smarter than the sum of its lawyers while remaining within the appropriate security boundaries.
- We learned that there are more disqualification motions in Canada (per lawyer capita) than in the US. The disqualification motion has become a standard tactic, and firms have to find a way to respond defensibly without re-defining the process with every new motion.
- The risk of insider trading continued to cause heartburn. Insider trading is a crime, but the open question remains: “How much did we do to prevent the crime? What is a "reasonable effort" since it is nearly impossible to stop all rogue lawyers or staff members? “ This is the real test of collaboration vs. confidentiality and where to draw the professional responsibility line.
- Finally, there was a good deal of discussion about growing challenges tied to outside counsel guidelines: communicating their existence internally, understanding the requirements, and negotiating terms with potential clients. OCGs have become more demanding everywhere, but one attendee pointed out that the federal government has the most exhaustive (and, as they see them, unreasonable) terms for future representations.
- Client-requested information barriers and walls for sensitive matters are on the rise, and are requiring audits with greater frequency. Corporations - especially financial institutions - are insisting upon much more aggressive information access controls - a trend that we are seeing in the States as well.
Tuesday, July 19, 2011
Risk Roundtable session was held in Toronto, Ontario. Many thanks to Goodmans for hosting. Brian Lynch delivered a presentation updating attendees on current risk issues and trends, and moderated group discussion. He sent his customary summary of the wide ranging group discussion:
Posted by Dan Bressler at 6:33 AM