Courage and the CLO

When McCain Foods Ltd. chief legal officer Christa Wessel received the CCCA Ontario chapter award of excellence recently it was former Ontario premier David Peterson who served as guest speaker.

He chose to speak about one of the challenges facing in-house counsel — that of defender of the corporate moral conscience.

The now chairman of Cassels Brock & Blackwell LLP spoke the same week that political and corporate scandal was in abundance. From the Charbonneau Commission in Quebec, to the Rob Ford scandal in Toronto and the Senate expenses debacle in Ottawa, he had a plethora of material to work with. He even referenced Apple’s grilling by the U.S. senate committee regarding the company’s tax “avoidance” issue. “It has been a miserable six weeks in the political life of this country and in some ways the world,” he said.

He took the opportunity to draw on the current climate and put a question to the in-house counsel present that night: What could you/would you have done if in the role of adviser to those organizations now under the spotlight?

“With the benefit of hindsight, had we lawyers been there, what would we have brought to the party?” he asked. “Would we have stuck our noses into those issues? And could we have fixed them if anybody had listened to us? If they don’t listen to us how can we make people listen to us?”

They were questions that clearly gave many in the room cause to pause and reflect.

“The greatest mistakes I’ve made in my life were when I didn’t listen to my own conscience,” he said. “I was getting fabulous advice from very smart people but I was wrong at the end of the day.”

At some point, he said, people have to stand up with a moral compass to say: “That just won’t wash.”

He challenged the in-house counsel present that night to ask themselves whether they would have had the courage to stand up and say: “We can’t agree with this.”

Corporate counsel and lawyers generally, he said, are in a position to bring ethical leadership to a world that in many ways is lacking it. “We’re all trained to serve the corporation we work for but all of us who take the oath have a responsibility to the profession and to a higher public and that is a greater responsibility.”

Peterson said he’s optimistic about the opportunities lawyers have to make a better world and for general counsel the key will be to think of their role as one of protecting the reputation of the corporation. A general counsel, he said, provides advice to the executive team but it’s not just about the law — it can have broader implications. You don’t just need to know the law, you have to make considerations within a wider context.

Determine where the company is at risk and bring those vulnerabilities to the executive group with the message that while the organization may be working within the law it may not be that way forever. So while the benefit of hindsight may prompt some to admit they might have done things differently, hindsight, Peterson noted, isn’t worth much these days. Only in anticipating and preventing problems can in-house counsel really prove their worth.

“You have to have the wisdom and confidence to speak truth to power,” said Peterson. “It’s not always an easy thing to do. Corporate counsel don’t have a lot of clients — if the CEO leaves you’re probably gone too.”

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