The Lawyers Weekly - June 18, 2010

THE LAWYERS WEEKLY
June 18, 2010 | 23

BUSINESS
CAREERS

ELAINE WILTSHIRE

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 counsel bandwagon.

“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
and 2005.

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
increase.

“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 candidate successful.

Mercer and Sibold both come
to their positions with very dif-
ferent backgrounds and legal
experience.

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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