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CCCA61_032-034,036-038.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 02/07/2008 06:12 PM Page 34 Feature for conflict in the decision is exacerbated that much more.” Even many outside law firms now refuse to allow their lawyers to sit on the boards of the clients they advise, because they don’t want their lawyers exposed to the possibility of conflict. “The majority of law firms say it raises too many difficult issues,” says Sally Gunz, a law professor in the School of Accounting at University of Waterloo. Duty of independence Even though a corporation’s general counsel is part of the man- agement team, she needs to be able to step away from that role, remember that the organization is the client,and provide the best legal advice to the client in the circumstance. “If in-house counsel are not prepared to defend [their inde- pendence], there’s no point in having them,”says Gunz.“You may as well have a manager. The reason they’re hired is because they’re professionals, and they’re paid a significant premium for that. So it’s critical that they maintain their sense of independence and rec- ognize, when push comes to shove, that that’s why they’re there.” In an extreme situation, in-house counsel may have to resign from the corporation to uphold her professional independence, says Anne Giardini, general counsel of Weyerhaeuser Company Limited inVancouver.“You can never lose sight,as in-house coun- sel, of your professional obligation. The reminder should be on your desk at all times, a metaphorical string around your finger.” If the general counsel’s independence is to be respected, a great deal depends on the signals sent from the executive suite to the rest of the organization.“There’s always a tone at the top,”says Giardini. “In-house counsel need to be comfortable with that tone. I don’t think you should ever be in a position where it comes to the test, because either the tone is one you’re aligned with, or it’s not.And if you’re not aligned with the tone, it’s probably somewhere that you shouldn’t be.” Gunz agrees, up to a point.“If you’re in the right corporation, when you take a stand and say ‘This can’t happen,’ the CEO understands and backs you up,”she says.“The problem is that these issues are most difficult when the organization is under stress.” “I’ve made it clear to my CEO that I have certain obligations to advise the board of certain things,and she is supportive of that,” says Armour. “Also, I’ve been the senior legal officer in three dif- ferent organizations,and I’ve always been careful to make sure that counsel reporting to me advise me whenever they are put in an awkward situation.” A reference point Corporate codes of conduct can reinforce the in-house counsel’s independence.“Having a reference in the code to the role of the Deborah Armour lawyer as an independent professional can be very helpful in send- LOURENDA MASTRAMONACO Director of Legal Services ing that important signal,”says Paton,“but unless the organization Powerex Corp., Vancouver puts those words into action, they are just words.” 34 CCCA Canadian Corporate Counsel Association SPRING 2008