Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ......... Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Whisteblowers afraid to speak despite new laws I n a recent documentary, CBC's The Fifth Estate highlighted yet more problems with Canada's re- cord on enforcing airport safety rules. The story stemmed from a student's discovery of a computer memory stick in a coffee shop. On it were warnings from a government security inspector that of- ficials are compromising public safety in favour of "profit and convenience." But besides shedding light on a safe- ty issue that would disturb most Cana- dians, the report drew attention to yet another problem in our laws: the lack of adequate protection for whistleblow- ers who report wrongdoing. That's because the inspector who is- sued the warnings wouldn't talk about them. He feared reprisals for what he had done and told reporter Hana Gartner that he knew of other government employees who had suffered badly for coming for- ward with problems. In the end, he in- structed her never to call him again. His reaction isn't surprising, of course, but it is troublesome given both the grav- ity of the safety issue at hand as well as the fact that the federal government was supposed to have addressed the reticence of whistleblowers to come forward in the wake of the sponsorship scandal sev- eral years ago. Obviously, changes by the former Liberal government to the Public Servants Disclosure Protection Act and later amendments to it under the Conser- vatives' Federal Accountability Act aimed at making it easier for bureaucrats to re- port problems haven't worked. In assessing the legislation, in fact, the organization FAIR (Federal Account- ability Initiative for Reform), includes this warning to government employees on its web site: "Public servants who are considering making a disclosure under the new legislation should first pause and make sure that they fully under- stand how it works before they entrust their fate to this deeply flawed process." Among the problems, according to FAIR, is that the legislation doesn't pro- vide ironclad protection for workers who report wrongdoing. So, if they feel they've suffered retaliation for their actions by a manager, for example, they can make a complaint to the public sector integrity commissioner, Christiane Ouimet. She may then start an investigation but, FAIR says, procedures for doing so are prob- lematic for three reasons: employees have just 60 days to file a complaint; they have little legal support compared to the gov- ernment; and they face the onus of prov- ing their problems at work were the result of retaliation. In other countries, laws provide for a reverse onus that requires the employer to show the adverse treat- ment wasn't due to whistleblowing. The Conservatives, of course, can justly argue that their Federal Account- ability Act brought in useful reforms. But the reaction by the airport security inspector shows government employees are still very fearful of reporting wrong- doing. Canadians deserve better. That would require changes to our laws, but until the public speaks up, we'll depend on lost memory sticks in coffee shops to find out what's really going on within our government. — Glenn Kauth I t's never too early to start to develop and implement a business development plan. Any such plan should con- sider how to get your name out there, including marketing tasks such as getting articles pub- lished, being quoted in the me- dia, and networking by keeping in touch with those you already know along with expanding your circle with people who may one day pick up the phone and retain your services. But in order to focus your marketing initiatives, you must establish who you're trying to reach. The target audience of your business development plan will vary depending on the size and expectations of the firm you work at. However, the basic goal of building and maintaining a reputation as a lawyer who delivers a top- notch product on schedule will always be constant. There are two sources of work for an associate. The first source is, of course, senior law- yers within the firm (whom, as during articling, you should sim- ply conceptualize as an internal Getting a head start on business development The client base). Internal cli- ents are typically a new associate's main, and per- haps only, client base at the early stages. But while you're serv- ing an internal client, it's important to note you're ultimately helping the ex- ternal client as well. Your goal, then, is to satisfy both so that each of them will look to you to serve them again in the future. When you work for an in- ternal client, you should think about the role you are playing and the expectations that both clients have of you. In terms of the internal client, there are political considerations. You need to pay careful attention, for example, to ensure you don't appear to be taking over the direct relationship with the external client to the detriment of your more senior colleague. This issue may not be as acute in your first few years of practice when you may not have the skills needed to fully service a client and are perhaps just doing slivers of work here and there. However, it can Associate By Justin Mooney become a greater issue as you progress in your practice. For example, is your firm also ask- ing you to manage billing of the external client? Even if you are not directly responsible for billing matters, you neverthe- less need to go the extra step of understanding them. As an example, if, as a more senior associate, you are leading a deal and building a team, there is a potential tension between assembling the group (that is, having the proper speciality ar- eas covered by appropriate prac- titioners) versus the external cli- ent's cost expectations. If you are responsible for getting the deal done but are not dealing directly with billing matters, it's nevertheless incumbent upon you to monitor the costs and, more to the point, the escala- tion of fees. This can appear as www.lawtimesnews.com though you're taking an ownership interest in a file to the extent necessary to assist the internal client rather than come across as a threat to the relationship with the external client. Depending on a num- ber of factors, including the types of clients your firm has, having a practice comprised primarily of internal clients may be sufficient to see you through to partnership. While some as- sociates may see the availability of internal clients as the most straightforward path to partner- ship, particularly at large Bay Street firms, it's important to re- member that when lawyers rely primarily on internal clients, they're more vulnerable when a firm looks to downsize since they appear less able to bring in new sources of revenue. That's why it's vital as well to focus on the second source of work: external clients. They're the ones for whom your inter- nal clients are ultimately asking you to work and who are pay- ing your salary and overhead. But developing external clients OcTOber 19, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. is a more time-intensive en- deavour. Typically, building a book of business takes years of implementing a plan. Remember that, whether you're targeting internal clients or external clients or both, you must not only become an ex- pert in your field, you must also be perceived as an expert. The two go hand in hand. There is little point in becoming an expert in an area of law if no one knows about your knowl- edge. Similarly, to be perceived as an expert while delivering a substandard work product will cause a very quick erosion of the perception you've so care- fully marketed. For better or worse, it is not enough in private practice to sim- ply practise law. Ultimately, an associate must start thinking of business devel- opment. It's never too early to start doing so. LT Justin Mooney, who was called to the bar in 2002, is an associate who practises corporate/commer- cial law at Davis LLP. He can be reached at jmooney@davis.ca.

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