Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1163340
LEXPERT MAGAZINE | Q3 2019 27 conflict came up exactly once." One of the benefits of being a large inter- national firm, he says, is the up-close access to best practices in areas like conflicts in so many different jurisdictions. e model Norton Rose uses is not a GC, but five regional compliance offices with teams that oversee regional and global conflicts as well as other risk-management issues. In addition, the firm has a section that does nothing but look at the reputa- tional risk of potential new clients. e teams are constantly in touch with another, Soliman says, and potential new intake matters are examined both objec- tively and subjectively — objectively for any possible legal conflict, and subjectively for business ramifications. e regulations on conflicts can be dif- ferent in different countries, he acknowl- edges, but when differing standards apply, "you work through it. "Where you have an issue with a jurisdic- tion, you're respectful of it. It doesn't neces- sarily have to be a different standard in the law; it could be just a sensitive business-type issue. We engage very constructively with our clients. I can assure you it [conflicts] is not a top issue internally. "We know who we are, we know what practice areas we're good at, we know what business we want, and we're very mind- ful that new matters we take not disturb our existing clients. You don't want to do something that's going to hurt your partner, whether that partner is in Toronto, Sydney or London." Soliman, who's also chair of Norton Rose Fulbright Canada LLP and co-chair of the Canadian special situations team, says even he has had to let things go. "I had an inter- esting opportunity in my practice area that I had to turn away last week because it pre- sented a business conflict. We're very care- ful about bringing in new files." NO ONE likes to give up work. So, when it comes to setting out expectations around client conflicts, engagement letters are "re- ally important," says Sue Grundy, general counsel at Blake Cassels & Graydon LLP. Conflicts are really a two-part process, she says. Not legal and business. Legal and relationships. "Conflicts are about relation- ships. Very, very commonly, even if there is a conflict, the solution in almost all cases is to get a waiver from the client who says: 'at's fine.'" Best practice dictates that the potential client be told as quickly as possible that the firm does some work in a different area and on different matters for the client on the other side, she says, and request permission to contact them to make sure it's OK. "e reason for that is it's confiden- tial, the client has asked us to take on the proposed mandate for them. We need to respect our responsibilities not just with respect to conflicts but also with respect to confidentiality." One trend that's developing is clients are asking more questions, she says. rough outside counsel guidelines or Requests for Proposals, some companies are trying to find out whether the law firm acts for any of its competitors "or saying they don't want us to take on matters that would be taking legal positions they don't like. "at one's a very difficult one to moni- tor because we can have a data base of who the clients are, but we don't know the de- tails of all the work or all the issues that have come up in the different cases or that may come up in the future." e firm doesn't want to take legal po- sitions harmful to the business interests of longstanding good clients, she says, nor does it want to tie its hands and prevent its lawyers from taking the strongest possible stance for another client in the future. "It's very difficult to promise that in every single case we would do that. We've found that's a difficult one to deal with, and we try to explain why." Grundy helps out the lawyer negotiating the terms of engagement, but usually it's be- hind the scenes rather than across the table. "What I find is the conversation works the best when the lawyer the client knows is the one talking to them about conflict issues, rath- er than someone they haven't met like me." Like Goodmans, she says Blakes walks away from some business over conflict demands that can't be negotiated — although she says KENNETH CROFOOT GOODMANS LLP CONFLICTS FEATURES it's very difficult to quantify how much. e cost of failure to handle this properly was seen last fall when a firm in Toronto was ordered to pay multi-million in a con- flicts case. Crofoot of Goodmans says the deci- sion sent a ripple through the profession. "I think what the community took away was the importance of defining who your client is. e conflict was created because there was a conflict over who the firm was actu- ally representing." e terms of engagement: Like a diamond, it seems, for law firms, clarity is essential. Sandra Rubin is a writer and consultant based in Toronto. "A LOT OF CLIENT TERMS OF ENGAGEMENT WE'RE SEEING FROM LARGE INTERNATIONAL CORPORATIONS ARE PRETTY ONEROUS TO DEAL WITH."