In-House Counsel - Spring 2010

Decisions have gone out of the hands of corporate
and outside counsel, and increasingly become part
of doing business with lawyers only advising.

Menu Foods did not respond to a request for comment.

With some 100 class actions currently on the go and many hundreds more under his belt over the past two decades in which he has practised in this space, Merchant has seen how companies are relying less on obtaining legal advice to deal with disputes.

“Decisions have gone out of the hands
of corporate and outside counsel, and
increasingly become part of doing busi-
ness with lawyers only advising.”
The U of T’s Sossin, who teaches a
first-year course on legal process, pro-
fessionalism and ethics, says that while
the role of in-house lawyers has “never
been more important” as members of
decision-making groups within orga-
nizations, their traditional role as only
offering pure legal advice has less “pri-
macy” than it once had when fears of
litigation, such as over product liability,
were the driving force behind many cor-
porate decisions.

“If anything, Maple Leaf Foods and
other similar illustrations of the gold
standard in crisis management make
the case for why we need to balance the
role of counsel with a broader strategy
to address public, regulatory and sup-
plier concerns.”
He says that apology protection
laws—such as those in British Colum-
bia, Saskatchewan, Manitoba and most
recently, Ontario, that shield apolo-
gies from being used against parties in
subsequent litigation or court proceed-
ings—has broken the litigation “bar-
rier” around communications and has
made it easier for corporate legal de-
partments to “act compassionately” and
move settlement discussions forward.

Survey

Percentage of respondents that indicated they were well prepared for litigation:

KPMG Forensic and Harris Interactive Inc. recently polled over 200 in-house lawyers, mostly from the Forbes 2000 list, about popular issues of concern:

Percentage of respondents
that indicated they were
well prepared for document
disclosure requests related
to litigation:
About 32 per cent —
identified (without being
prompted) some logistical
concern regarding the
collection, review and
disclosure of electronic
data and documents.