About two dozen in-house counsel from Ottawa-area corporations, Crown corporation and associations gathered at Osler, Hoskin & Harcourt’s offices March 2 for the Ontario Chapter’s first program and social in the national capital.
The topic was corporate whistleblowers – who don’t pose a potential threat to just the company, but also present potential pitfalls for in-house lawyers.
In-house lawyers from Export Development Canada, Nav Canada, the Canadian Medical Association, IBM Canada, Accenture, General Dynamics Canada, the University of Ottawa and the Canadian Payments Association were among those on hand to discuss how best to handle employees who step forward with allegations of corporate wrongdoing.
Yvonne Estimé, ACC’s Director of Large Law Programs and Associate General Counsel, led the session with panelists Paula Rietta, Vice-President Legal at Ford Canada Credit; Cheryl Foy, General Counsel at Carleton University; and myself.
The interactive presentation quickly turned into an informal roundtable involving everyone in the room as the in-house lawyers spoke candidly about the challenges they face. There were some important takeaways. For example, as in-house counsel we need to remember at all times we’re acting for the organization. Be wary of unwittingly developing a solicitor-client relationship with an employee who comes to blow the whistle, and may want advice on how proceed.
In the U.S., in-house counsel are required to tell whistleblowers right up front that they are the corporation’s lawyer and advise them about getting their own counsel. That’s not required in Ontario but the group agreed we always want to be careful to listen while remaining very clear about who we represent and not overstepping that line.
The question of how counsel should respond to an employee who says he or she intends to expose alleged wrongdoing to the government also provoked a lively discussion. The consensus was don’t panic, but investigate immediately.
You need to corroborate what the employee is saying; explain to them you need to get facts to determine what the company needs to do. Be honest with them, tell them that they must do what they feel is right, but you are going to start looking into the situation immediately. And then do it. It can’t be a tactic to stall, this could come back to bite your company hard.
Another item that came up was the need for companies to have formal written policies preventing their lawyers from representing employees or executives in their personal capacity, even on seemingly very minor matters. That can lead to a potential conflict later on down the road – not to mention you may be engaging in private practice of law. We’re not signed up for that and we’re not insured for it either! Be careful.
After the formal part of the presentation ended, it was on to the networking session as people stuck around and had drinks and nibbles and swapped stories from the trenches. The event was welcomed by local in-house lawyers who said it had a truly in-house voice. In fact, there was such positive feedback that we’ve already told people we’re going to start working on planning our next Ottawa event right away!