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CCCA_V6No4_WhatToWatch-FIN_CCCA 11/26/12 4:28 PM Page 34 Feature already been adopted by five provinces; the rest are expected to come on board in the not-too-distant future: Rule 2.02(7): The duty to do no wrong. Of course, lawyers must refrain from knowingly engaging in or advising their clients to engage in dishonest or fraudulent activities. This rule, says Fung, may be interpreted to mean that lawyers can’t simply turn a wilfully blind eye to such conduct — a development that resonates in particular for in-house lawyers, who are presumed to have intimate knowledge of their clients’ business, warts and all. The takeaway: if you even suspect that your clients may be engaging in illegal activity, it’s your respon- sibility to take off the blinkers and investigate. Rule 2.02(8): “Up the ladder” reporting. In the wake of Enron and Sarbanes-Oxley, lawyers are required to report up the chain of command if they’re asked to act regarding potentially illegal activity. Again because of their intimate knowledge of the company’s affairs and close relation- ship to senior management, this rule has the potential to be trig- gered more often and be more problematic for in-house coun- sel, says Fung, with potentially serious implications: “If you get THEModel CodeOF to the top and the company still hasn’t done anything about it, in some cases it will mean resigning not only from the matter but Professional Conduct from your position.” On the other hand, she notes, corporate counsel must be able to discern between trivial misconduct and In December 2011, the Federation of Law Societies of Canada issues that will genuinely harm the organization or the public. published its Model Code of Professional Conduct with the Rule 2.04 (1) The duty to avoid conflicts of interest. objective of harmonizing regulatory standards for lawyers across In-house counsel regularly face potential conflicts, says Fung: the country. In an increasingly global and mobile economy, that’s advising affiliates or subsidiaries of the company, being asked for good, says Anna Fung, VP, Legal & General Counsel, TimberWest personal legal advice by colleagues or fellow employees, even Forest Corp. “But it’s also true that a set of rules designed for all serving as a director for your corporation or one of its affiliates Canadian lawyers may not take into account all the nuances of or subsidiaries. “A lawyer should always be asking whether a practising in-house.” conflict of interest exists,” says Fung, “not only at the beginning According to Fung, corporate counsel should consider care- of a relationship but throughout the duration of the retainer as fully at least three provisions of the model code, which has new circumstances and facts may emerge.” FEDERALenvironmental law REFORM When the federal government introduced its Omnibus Budget Bill C-38 in April, criticism was “swift and loud,” says Charles Birchall, a partner with Fogler Rubinoff in Ottawa. The bill, which came into effect July 6, 2012, amended or repealed 70 federal acts, mak- ing significant amendments to environmental legislation. The new legislation brought in a new Canadian Environmental Assessment Act (CEAA). In an open letter to Prime Minister 34 CCCA Canadian Corporate Counsel Association WINTER 2012