THE LAWYERS WEEKLY
June 18, 2010 | 23
Malcolm Mercer of McCarthy
Tétrault LLP and Stephen Sibold
of Bennett Jones LLP have a
unique position in the Canadian
legal landscape—they are two of
only a handful of lawyers who hold
the title of general counsel at a
Canadian law firm.
Although firms in the U.S. were
quick to adopt this position starting in the early 2000s, the vast
majority of Canadian firms have
not yet jumped on the general
“In the U.S., with the combination of the litigation exposure that
big firms were facing and the prospect of having to comply with
some statutory requirements, they
said, ‘we really need to have a dedicated person or individuals who
can look after the firm’s legal interests,’” said Sibold.
“In the U.S., the focus of the
general counsel is largely litigation
prevention. In Canada, we don’t
have the same litigation concerns
because we just don’t have the
degree of litigation generally.”
According to a survey release in
2005 by legal consulting firm Alt-
man Weil, Inc., over two-thirds of
the AmLaw 200 firms in the U.S.
that were surveyed have a desig-
nated general counsel—a number
that rose 6 per cent between 2004
Mercer said one of the driving
forces behind McCarthy Tétrault’s
decision to add the position was
the change in the conflicts law
that rose from the R. v. Neil decision in 2002.
Firms are dealing with “a
much more complicated environment in terms of conflict,” said
Mercer, adding that another
motivating factor behind the creation of this position was the
firm’s growing size.
“In our particular case, we saw
a number of issues and a number
of risks…which caused us to real-
ize that with a firm our size and
the issues of complexity that we
faced that this would be helpful
to the firm.”
Sibold agrees that the size of the
firm has a lot to do with the need
for a general counsel position.
“A number of law firms are getting to a size where they can economically justify having someone
dedicated to do legal work for the
firm, which, in the past, had always
just been parcelled out to various
partners and associates to do off
the corner of their desk,” he said.
Sibold also said he doubts that
the general counsel role in Canadian law firms will ever reach the
popularity it has in the U.S.
because there are not enough large
firms that can justify the position
from a cost-benefit standpoint.
“I wouldn’t be surprised if more
of the larger law firms developed a
role, but I’m not sure it will go
beyond the larger firms.”
However, Salima Alibhai,
senior consultant of ZSA Legal
Recruitment, thinks that as law
firms become more global in
nature, the demand for general
counsel positions may start to
“You need general
counsel at law
firms who have the
credibility and respect
of the partners.
But the unique nature of the
role means that there really isn’t
a single type of lawyer or list of
qualifications that would make a
Mercer and Sibold both come
to their positions with very dif-
ferent backgrounds and legal
Mercer began with McCarthy
Tétrault in 1984, the year he was
called to the bar. He was co-leader
of the national litigation practice,
specializing in commercial, corporate, real estate, insolvency matters and professional negligence.
How did he become the firm’s
first general counsel? “I got asked
to do it,” he said bluntly.
Sibold, who specializes in corporate securities law, left Bennett
Jones in 1996 and served as general counsel for Canadian Airlines
for nearly five years. He then
served for five years as the chair
and CEO of the Alberta Securities
Commission. Bennett Jones then
approached him about returning
to the firm, which he did for a year
and a half before taking a 10
month scholastic leave of absence
in 2007-2008 to obtain his LL.M.
at the University of California,
Berkley School of Law, as a Fulbright Scholar.
It was upon his return from
Berkley that he was asked to be the
firm’s first general counsel.
“I had been a general counsel
before…and I liked the role, so I
said I’d be delighted to give it a
shot,” recalled Sibold.
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