1. The General Counsel, a Trusted Business Advisor
Presented by
Faculty #1
Title
Company
Faculty #2
Title
Company
Faculty #3
Title
Company
Spencer Enright, President & CEO, Brookfield Real Estate Services Limited
Kenneth Fredeen, General Counsel, Deloitte LLP Alan James, Partner, Gowling Lafleur Henderson LLP

2. Overview Expectations of Non-Lawyers How Lawyers Add Value
Managing Risk
Professional and Ethical Obligations
The bullet point on Professional and Ethical Obligations may or may not be relevant to your jurisdiction; please tailor accordingly (see notes under slides #9-15 for more guidance).

3. Expectations of Non-Lawyers
Maintaining regulatory compliance
Monitoring for misconduct
Supervision of the legal department
Strategic value creation
“Provide courage to overcome fear, panic, seller's remorse, buyer's remorse and risk aversion”

4. How Do Lawyers Add Value?
Minimizing the potential for ex post litigation
Reducing transaction costs
Reducing regulatory costs
Acting as reputational intermediaries
Providing client privilege and confidentiality
Creating economies of scope

5. Utilizing Non-Lawyers
Ronald Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 YALE L. J. 239 (1984).
Steven L. Schwarcz, Explaining the Value of Transactional Lawyering, 12 Stanford Journal of Law, Business & Finance (2007) [

6. Lawyers “add value primarily by performing transaction-regulatory legal work: by providing expertise in the law and regulations that generally govern the transaction and by understanding the rationale for the contractual provisions in the transaction documents.”

7. Gatekeepers vs. Value Creators
Compensation structures may impact effectiveness of gatekeeper function
Adair Morse, Wei Sang and Serena Wu, Executive Gatekeepers: The Paradox of Lawyers in the Firm, (2014). [

8. Gatekeepers vs. Value Creators
Role as value creator always subject to Rules of Professional Conduct
“[In-house counsel] are regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients…They are subject to the same duties to their clients and to the court. They must respect the same confidences. They and their clients have the same privileges.” (Crompton v. Commissioners of Customer and Excise, [1972] 2 All E.R. 354 (Q.B.), cited in R. v. Campbell, [1999] 1 S.C.R. 565)

9. Obligations Under Rules of Professional Conduct Include:
[INSERT THE RELEVANT MODEL RULES OF PROFESSIONAL CONDUCT FOR YOUR JURISDICTION. IF THERE ARE NONE, DELETE THIS SLIDE.]
SLIDE #9 - #15 COVER MODEL RULES OF PROFESSIONAL CONDUCT AND THEIR APPLICABILITY TO THIS TOPIC. PLEASE REPLACE WITH YOUR JURISDICTION’S RELEVANT ETHICS RULES/RULES OF PROFESSIONAL CONDUCT. IF NONE, PLEASE DELETE THE SLIDES. CANADIAN EXAMPLES ARE INCLUDED HERE FOR REFERENCE PURPOSES.
Relevant Canadian rules of professional conduct include:
Honesty and Candour
Courtesy and Good Faith
Avoiding Conflicts of Interest
Whistleblowing and Up-the-Ladder Reporting

10. [Model Rule #1] CANADIAN EXAMPLE: Honesty and Candour Section 3.2-2
“When advising clients, a lawyer shall be honest and candid.”
“The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.”
Section 3.2-7
A lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct or instruct a client or any other person on how to violate the law and avoid punishment

11. [Model Rule #2] CANADIAN EXAMPLE: Courtesy and Good Faith
Section 7.2-2
“A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights.”

12. [Model Rule #3] CANADIAN EXAMPLE: Avoiding Conflicts of Interest
Section 1.1-1
“conflict of interest” means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person.

13. [When Conflicts of Interest Likely to Arise]
Acting for parent and subsidiary companies
Acting as lawyer and director of officer
Advising organization and individual employees or officers

14. [When Must You Blow the Whistle?]
Section 3.2-8
a lawyer “employed or retained” by an organization
“knows” that the organization is acting dishonestly, fraudulently, criminally or illegally
must take steps to advise the person from whom the lawyer takes instructions and if necessary the CLO and CEO that the conduct should be stopped
and if necessary, advise the next highest persons or groups, including ultimately the board of directors that the conduct should be stopped
and if the conduct does not stop, withdraw from acting in the matter, which, based on the commentary, would mean resigning.

15. [Commentary on Rule 3.2-8]
“This rules recognizes that lawyers as the legal advisers to organizations are in a central position to encourage organizations to comply with the law and to advise that it is in the organizations’ and the public’s interest that organizations do not violate the law. Lawyers acting for organizations are often in a position to advise the executive officers of the organization, not only about the technicalities of the law, but also about the public relations and public policy concerns that motivated the government or regulator to enact the law. Moreover, lawyers for organizations, particularly in-house counsel, may guide organizations to act in ways that are legal, ethical, reputable, and consistent with the organization’s responsibilities to its constituents and to the public.”

16. PLEASE REMOVE OR REPLACE WITH A CARTOON THAT SPEAKS TO YOUR AUDIENCE.

17. Thank You Questions? Faculty #1 Title Company Faculty #2 Title Company