IBA Corporate Counsel Conference: Speed Table Session

IBA Corporate Counsel Conference: Speed Table Session

Even though the speed table session was held on a Sunday afternoon, it attracted more than 20 participants. Given the size of the group, we pulled the tables together and ran the sessions in sequence so that everyone in the group could participate in the same session at the same time. The result was a lively, focused and substantive discussion of three important issues.

The first session, on Corporate/Executive Liability for Death or Serious Injury: What Lawyers Can Do to Create a Safety Culture, moderated by Tom Hickey of Hess Oil & Gas, a Vice Chair of the Corporate Counsel Forum, dealt rather quickly with the first part of the question: Yes, there is a serious risk of personal liability or even criminal liability to directors and officers if the conditions resulting in death or serious injury are due to their willfulness or reckless neglect, the exposure being greater as the director or officer has more direct contact with, and knowledge of, the conditions giving rise to the injury.

Canada and India werecited as examples of criminal exposure. Indian companies have assigned individual directors to take personal responsibility for safety conditions at individual plants. The group was also in agreement that lawyers had a constructive role to play in safety committees and similar processes, and a responsibility to warn managers of the risks of neglecting safety.

On this, as each of the following, the pros and cons of Consequence Management, that is, prompt, certain and severe punishment of offenders, was discussed. While Consequence Management is an effective deterrent, it inhibits reporting of problems, which can lead to problems, particularly problems related to irresponsible behaviors by employees rather than management practices, to go undetected.

Duncan Wiggetts of PricewaterhouseCoopers, Senior Vice Chair of CCF, next moderated a session on What's in Your Email: Electronic Mail, Knowledge Management and Solutions. The experience of the participants was replete with examples of embarrassing or compromising emails that exposed the company to reputational injury and/or financial liability as well as destroying careers. It was somewhat surprising how durable a record email creates, even when deleted, and how insecure email is, subject to unwanted disclosure through compelled disclosure in litigations and regulatory proceedings, unauthorized forwarding, and, if the email is sent on a public service, interception at Internet hubs.

Email correspondence can be admissible hearsay in legal proceedings and may be sufficient for contract formation. Some protection is afforded by securing servers, encryption, and confidentiality/hold harmless agreements with service providers, but this does not prevent compelled disclosure or unauthorized forwarding.

Monitoring employee emails is useful but problematic in some jurisdictions, particularly the EU, Ultimately, the most effective protection is education of employees Think Before You Write sessions, training to refer only to facts in emails and to avoid opinion and speculation, and education on information security and its limitations.

Finally, Mysore Prassanna of Aditya Birla Group, and a Vice Chair of CCF, moderated a session on Legal Process Outsourcing ("LPO"): A Debate Between Proponent and Opponent, using the 2008 ABA opinion as a framework. The only participant with substantial direct experience of LPO reported that the service had been satisfactory and had resulted in a 60 percent savings over using a US law firm. There were numerous questions raised: Does the outside law firm have the right to engage in LPO without the consent of the corporate legal department? Should the company contract directly with the LPO provider? Were their satisfactory arrangements for information security, liability insurance, conflicts of interest and privilege?

It was pointed out that under Indian law, LPO companies are not regarded as law firms and do not enjoy privilege. What is the responsibility of the in-house lawyer to conduct due diligence and exercise direct oversight to ensure that the arrangement is satisfactory? Does the external law firm pass through the cost of the LPO provider or charge an undisclosed mark-up, and how can the company be sure unless it can audit legal bills? Is the LPO system, which consumes training opportunity for new lawyers, sustainable in the long run? Is technology a viable substitute for LPO?

There were more questions than answers, but the participants agreed that because of the cost advantage offered by LPO and the increasing quality of LPO services, these questions had to be resolved.

Following the session, a speakers dinner was held at the Plaza Athenee Hotel, sponsored by Getting the Deal Through, which is introducing a new publication on dominance issues at the conference. The conversation, the setting and the dinner itself were memorable and an inspiration for the remainder of the conference.

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