Law Times

PAGE 18 INTERNATIONAL BAR ASSOCIATION JUNE 16, 2008 / LAW TIMES with potential legal ramifica- tions, contacting and/or retain- ing outside counsel is often one Clients need availability, expertise, calming hand W BY DEREK HILL For Law Times hen corporate coun- sel are suddenly faced with a crisis ing hand, says Eliot Kolers, of Stikeman Elliott LLP. "Clients need help in those circumstances to realize that whatever the problem is, it's a process that needs to be man- aged," he says. "They're looking for their counsel to be available and to provide . . .an element and months, and additional as- sistance is often required. For example, Carron says outside counsel's role often includes interfacing with the regulator, and/or dealing with the com- pany's designated media rela- tions co-ordinator who has the responsibility to ensure unifor- It presents a unique opportunity to bring together lawyers and industry representatives from a myriad of jurisdictions throughout the world who have all had or shared a common experience of living through one kind or another of crisis litigation. of the very first things they will do. Whether it's the fallout from a corporate scandal, the police knocking on the door with a search warrant, or a full-blown environmental catastrophe, having outside counsel join the company's crisis-management team can help the client look at the problem objectively and put it into perspective. Corporate clients in that situation are looking for avail- ability, expertise, and a calm- of 'We've dealt with this before, we're going to get you through this . . .'" Outside counsel must give advice balancing the need to protect the company's interests and thwart litigation with the company's need to get its mes- sage out quickly to the public and to take remedial measures, says Christine Carron of Ogilvy Renault LLP. These are ques- tions that the company may be dealing with for days, weeks, mity of messages. Although much of the work can be done pre-crisis in a com- pany's crisis-planning process, not all crises are so easy to pre- dict, and the trick for general counsel can be getting the right legal team in place for a crisis. For example, whereas a smaller company might be using a gen- eral practitioner for their gen- eral legal work, in a crisis they might suddenly need one or more experts in one or more ar- eas of law, such as a litigator, a securities expert, etc. Kolers says that while some- times general counsel or corpo- rate counsel can use their own contacts to assist with finding the right lawyers, for smaller businesses or counsel who might not have access to that kind of a network, it's often a good idea to contact a larger law firm. "The thing that a bigger firm provides is more lawyers with more areas of specialty, all under one roof, able to work as a team . . . We'll get calls from people we typically wouldn't act for, because we bring an expertise to the table in a certain crisis- management role." "Having lived through dif- ferent crises, you learn from your previous experience and are able to put into play very more quickly the kinds of skills that you need . . ." says Carron. "I also think that lawyers who've maintained good relationships with regulators in various in- dustries or sectors also have a examples public distinct advantage in that, when a crisis arises, if there is already an element of trust between a regulator and a law firm, or a particular person within that firm, it makes dealing with the regulator throughout that crisis go more smoothly." The right outside counsel can help put corporate counsel in touch with other valuable re- sources as needed. These might include forensic experts, data management, and electronic data management people, etc., who can crunch the numbers and review the relevant data quickly. Other clude in- relations firms and environmental experts or consultants. "There are a lot of resources out there that people can use and again . . . it's part of the so- lution for the client or the com- pany in issue to be able to access that and to be put in touch with that, whether it's through a net- work of counsel or their own ex- perience or their own resources, depending on who they are," says Kolers. For example, Wendy Kelley, senior vice president, general counsel, and corporate secre- tary of Biovail Corp., a phar- maceutical company which has dealt with its own share of cri- ses over the past few years, says, for example, that she wouldn't do a litigation hold on her own, but would seek outside counsel to process it. "Documents and e-discovery What does it take to win? Our clients know. is such a mammoth issue these days, particularly in the U.S., that I wouldn't purport to try and manage it in-house. We're just not set up in our expertise, and as well e-discovery usually requires that you have to have an independent provider — not a law firm, but the law firms just do it better." Carron notes the discus- sion panels at the upcoming International Bar Association conference on crisis litigation, of which she is a part, will pro- vide all counsel — inside and out — a valuable chance to learn and improve their crisis- management skills. "It presents a unique oppor- tunity to bring together lawyers and industry representatives from a myriad of jurisdictions throughout the world who have all had or shared a common expe- rience of living through one kind or another of crisis litigation," says Carron. "You have a host of seasoned Leading in Canadian litigation. Osler, Hoskin & Harcourt LLP. Toronto Montréal Calgary Ottawa New York osler.com lawyers having this kind of ex- perience throughout different jurisdictions, and that makes for a very interesting discussion and exchange of ideas about how they deal with those kinds of issues in their jurisdictions. "We live in a global market, and often crisis litigation knows no boundaries. It transcends boundaries. So this provides a very unique experience for lawyers in the audience — and even lawyers on the panel — to learn from each other the vari- ous techniques that have been tried and tested and proven to be effective in dealing with very different types of crisis manage- ment." LT Untitled-5 1 www.lawtimesnews.com 6/10/08 12:44:12 PM

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