Syllabus – LAWF 3780

August 27, 2019 V3

Course Outline & Syllabus

Faculty of Law

TRU Law F 3780 04

Challenges of In-House & Corporate Counsel

Course Information (Fall 2019)

Time and Location of Classes: Thursdays 10:00 AM – 12:50 PM, Room OM 3732/52/62

Instructor: Jon Festinger, Q.C.

Office: 4735

Office Phone: 1-604-568-9192

Email: jon@fblawstrategy.com

Twitter: @jonfestinger

Skype: jon.festinger

Office Hours: Generally available after class. Please email anytime, even on short notice, to confirm availability.

Course Description and Purpose

This issues based case study course is based on the recognition that a significant number of law graduates will become in-house counsel during their careers and the emerging reality that the roles of General Counsel and In-House Counsel have different, some different, “rules of the road” and pressures as compared to lawyers in private practice. As such this course will explore the fundamental roles of General Counsel and In-House lawyers as legal advisors, ethical adjudicators, and business leaders. The methodology of the course will be rooted in examining problems faced by counsel in private and public companies. In-house counsel have risen in power and status within the legal profession, becoming core members of top management intimately involved in complex problem solving and strategy determination. The “cases” in this course involve questions of ethical decision making and conduct that go beyond purely skillful legal determinations. Specific illustrations drawn from the recent history of the business world will be used. Each class will center around a real problem dealing with a fundamental challenge faced by General Counsel’s and their teams in a rich context involving institutional dynamics, psychology, management policies, culture, history and many other factors.

LEARNING OUTCOMES

It is impossible in a course of this kind to cover all of the myriad issues that confront an in-house counsel. The most we can hope for is that by the time you have completed the course you will have a realistic, non-rose-colored understanding of some of the more important principles, conflicts, questions and conundrums that inform making sound ethical and legal determinations in that context. Prevailing controversies in the area will be welcomed into the classroom, appreciated as harbingers of relevance worthy of deeper exploration. After taking this course you will not be magically transformed into seasoned General Counsel. However you should be able to identify, understand and explore in the relevant legal and ethical contexts the inherent challenges and conflicts that arise through in-house lawyering is in-house as well as the pressures, tensions and compromises that can result. To practice effectively in the area you must be able to analyze critically and through an ethical lens the rights and responsibilities of all the legal actors present every step of the way, including shareholders, employees, Directors, Officers, regulators, competing (and sometimes friendly) corporate interests, and governments.

ATTENDANCE

Students are expected to attend classes. TRU calendar, Policy ED 3-1, (http://www.tru.ca/policy/allpolicy.html) provides that attendance will regularly (but not necessarily always) be taken. Admission may be refused by the instructor for lateness, class misconduct, or failure to complete assigned work. Students are expected to attend a minimum of 90% of class time allocated to each course. In the case of deficient attendance students may be excluded from a course or final exam in a course. Students who are absent from class for two consecutive weeks will have been considered to have withdrawn from that course. Permission will then be required from the department chairperson to regain admission to the course.

ACCOMMODATION POLICY

The Faculty of Law will provide reasonable accommodation to students on the basis of factors such as illness, disability, religious observances, family or personal emergencies or affliction, or other similar special needs, when such factors interfere with the ability of a student to attend or to complete assignments or examinations at regularly scheduled dates or in other circumstances. Students should feel free to consult me or the Associate Dean regarding such matters. Students facing more significant and long-term or recurring barriers should familiarize themselves with TRU’s policy on Academic Accommodations for Students with Disabilities and confer with Accessibility Services as soon as possible.

ACADEMIC INTEGRITY

Academic standards and the reputation of students and the university are based on, among other things, academic integrity. Any forms of dishonesty, including cheating on exams, aiding and abetting cheating, and the use of work prepared by others and presented as your own, etc., are unacceptable activities and will normally result in a mark of zero in the particular assignment or in the case of an exam, a fail for the course. Severe or repeated incidences could result in disbarment from the University. Students have an obligation and are expected to be familiar with TRU’s Academic Integrity Policy Number ED 5-0 (http://www.tru.ca/policy/allpolicy.html).

MENTAL HEALTH

Law school is an environment where mental health struggles can be exacerbated. If you ever find yourself struggling, please do not hesitate to ask for help. If you wish to seek out campus resources, some basic information can be found at: https://www.tru.ca/wellness.html. You can phone the TRU Wellness Centre Coordinator at 250-828-5010, or visit the Wellness Centre at OM1479.

USE OF TECHNOLOGY

There is a course website: https://lawf3780-w2019.trubox.ca/ All contributions to the website count towards class participation. Contributions are not mandatory.

TEACHING METHOD

Lecture, discussion & small group presentations. Guests may also join us from time to time. Guests listed in the Syllabus unless marked as confirmed are for illustrative purposes.

You are expected to arrive on time and be fully prepared to discuss any required readings.

METHOD OF EVALUATION

Please note the updated TRU policy on Grading Systems as well as the Grading and Ranking guidelines(2018) of the Faculty of Law. Subject to the foregoing, the evaluation formula for this course will be as follows:

Term paper accounts for 50% of the final grade.

A minimum 5000 word paper is expected, with a student election to include an additional 2500 words. If you are electing to complete a minimum 7500 word paper then that must be made clear on the cover page of the submitted paper. The word requirement is inclusive of footnotes or endnotes but exclusive of the bibliography.
The paper is due on the last day of the exam period at 4:00 p.m.
Papers must be handed in at the Reception Desk @ TRU Law in paper format, and e-mailed to the Instructor in Word format.

Class Participation accounts for 50% of the final grade

25% of the mark will be based on group preparation of a Discussion Outline that must be created and handed out to the class—preferably by e-mail—at least a week before your particular discussion takes place and leading the discussion for that week.
15% for student participation in the other course seminar discussions

SUBJECT MATTER IDEAS

Issues of how in-house counsel relates to corporate governance
Balancing of the roles between government owned, public, and private company
What kind of companies still outsource and what kind of companies have in house counsel
Balancing exercise between legal obligations and the obligations to the company
Problems going forward for in house counsel
How to operate with outside counsel
Corporate structure and organization
The role of transactional lawyers
Ethical differences between outside counsel and inside counsel
Commercial acquisitions. Types of agreements.
Negotiating agreements and contentious agreements.
Becoming a specialist and how that affects being in house counsel.
Relationship of in house counsel and directors and other stakeholders/ how to deal with role of representing the company and not these people.
How your role of an in house counsel lawyer evolves.
Funding a startup business – sale and issuance of equity interests – the entrepreneur and the investor – how to align
Reaching out to potential investors i.e. solicitation
Key considerations in drafting VC and M&A Agreements & Documents
Relationship between the business and counsel?
When to hire outside counsel?
Regulatory requirements from the Law Society?
Do in-house counsel ever argue in court?
Being in-house counsel at a subsidiary company/parent company.
How are you trained/how is it different?
What’s the day to day like?
Ethical issues and navigating relationships within the company?
How broad are your specializations going to be/need to be?
What does a typical in house council career path look like?
What are the motivations/values that would make corporate council attractive to a lawyer?
Are the stakes/pitfalls higher?
Are career pivots more common into different fields?
Research in house data?
Influence Of legal sophistication of company directors/really any type of in-house employer on job security/law society complaints/really anything
Statistical analysis of law society complaints for in-house versus our-of-house counsel

QUESTIONS SEEKING ANSWERS

Corporate counsel’s role in attracting good (ethical) investment?
Discipline for corporate counsel in involved in corporate scandals?
Are corporate counsel going to be rendered obsolete by on-line law firms or A.I.?
What are the limits of corporate counsel? à When MUST/SHOULD outside counsel be hired?
Corporate counsel to a smaller company?

SYLLABUS

Class 1: September 5, 2019

Course Introduction and Administration

Introductions & motivations
Overview of the course and component elements
The role of “News of the Week”
Roundtable class discussion of “Hot Topics”
Draft Syllabus
Syllabus Re-Creation Exercise

Class 2: September 12, 2019

News of the Week

Student Bio’s, interests, biases & objectives

Why are you taking this course?
What do you hope to get out of it?

Results of Syllabus Re-Creation Exercise

Explanation of Student Discussant Groups

Jon’s Talk: “With Great Power…: Roles & responsibilities of being a House Counsel”

History
Motivations
Conflicts
Characters
Narratives

Readings:

The Pivotal Role of the Corporate General Counsel in Promoting Corporate Integrity and Professional Responsibility

The Discrete Roles of General Counsel

Class 3: September 19, 2019

News of the Week Discussions

Formation of Student Discussant Groups

Jon’s Talk: “Bright Red Lines?”

The disturbing parts of “Business Associations”
What of the truth that sometimes the “product” of the practice of corporate law – corporations themselves – have been known to perpetrate dastardly deeds on a not insignificant number of occasions. More disturbing to the legal practitioner is that (arguably) on many of these occasions the lawyers involved were just doing their jobs, being creating companies or facilitating the legal continuation of a corporations existence, or the expression of its independent corporate personality.
To what extent do we as lawyers bear responsibility for the nefarious outcomes that can flow from “limited liability”, separate corporate personhood, the lack of accountability of subsidiaries, or the politics of board/shareholder approvals?
The hardest question – “Where were the lawyers?”

Readings:

Code of Professional Conduct for British Columbia, sections 3.2-3, 3.2-7, 3.2-8, 3.7, 3.3-1, 3.3-2.: https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/chapter-3-%E2%80%93-relationship-to-clients/

“Law Society of Upper Canada appeals exoneration of two Conrad Black lawyers”

“Former Hollinger lawyers sue Law Society of Upper Canada”

Managing the Increasing Exposure to Liability of In-House Counsel

The Art of Not Mixing Personal and Professional: In-house Counsel and the Request for Legal Advice

Class 4: September 26, 2019

News of the Week Discussions

Jon’s Talk: “Case Study: From Enron to VW”

Materials:

Enron and the Corporate Lawyer: A Primer on Legal and Ethical Issues

Shades of Enron: the Legal Ethics Implications of the General Motors Scandal