Tuesday, July 22, 2014

A Couple of Compliance Chronicles: Screens Standing & Waivers Working


Two updates to share today. First, from Canadian Lawyer Magazine comes: "Court approves law firm’s ethical screen: Lawyer from opposing side allowed to stay on case at new firm," which is noteworthy as it involves successful screening by a 14-lawyer firm --
  • "When a lawyer for an opposing party joined its firm, Lloyd Burns McInnis LLP faced a real possibility of removal from a case due to a conflict of interest. But in an exemplary case of a timely ethical screen, the firm was allowed to stay on the case this week despite its small size and close working relationships between its lawyers."
  • "Lloyd Burns McInnis is representing AIG Insurance Co. in a class action coverage dispute with the Ontario government. The firm’s new lawyer, Michael Foulds, represented Ontario in the same matter while he worked at Theall Group LLP. Foulds now spends 50 to 60 per cent of his time working with his colleague Douglas McInnis, who is representing AIG in the Ontario-AIG matter. In fact, McInnis and Foulds work together on other files involving AIG."
  • "Despite the province’s argument there’s a high risk of an inadvertent leak of confidential information from Foulds to McInnis, Justice Alfred O’Marra found Lloyd Burns McInnis put up a sufficient ethical screen at the right time to significantly reduce this risk."
  • "'In considering the timely and comprehensive compliance by LBM with the institutional measures set out in the guidelines, in addition to appointment of a supervising senior partner, and isolating Mr. Foulds from any Ontario-AIG matters, I find that a reasonably informed person would be satisfied that the use of confidential information had not occurred or would likely occur, and it is in the interests of justice to allow Mr. McInnis to remain as AIG’s counsel of choice.'"
  • "Davis LLP lawyer Gavin MacKenzie, who represented Lloyd Burns McInnis, says even large law firms can take notes from the steps the firm took in this case. 'I think it’s a good example for small firms and large,' he says, adding if large firms follow the same approach, 'it’s highly likely' that the courts will be satisfied."
Next comes our waiver story: "Attorneys from same firm represent Wilmette, park district in negotiations" --
  • "Sometimes being one happy family comes with a few complications, as Wilmette Park Board members learned when they heard the attorney who represents them in negotiations with the Village of Wilmette belongs to the same law firm as the attorney who represents the village."
  • "That won’t be a problem, district Director Steve Wilson assured board members at their July 14 meeting, before recommending they let him sign a so-called conflict of interest waiver so the negotiations could go forward."
  • "Wilson explained the situation originally occurred because the law firm of Tressler LLC acquired the separate practices of attorneys who had been working as outside counsel for the village and park district: Raysa and Zimmerman, in which village attorney Michael Zimmerman was a partner, and the practice of park district outside counsel Charlene Holtz. Tressler merged with Raysa and Zimmerman in 2012; Holtz joined Tressler in 2009."
  • "Negotiations between Wilmette and the park district are friendly, Frenzer said, so it makes sense to waive any suggestion of conflicts of interest. Otherwise, both governments would have to hire new attorneys to handle the issues, which could prove expensive for everyone."

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