I Am Jane Doe: Ethics and morality for the in-house counsel

By Kim Covert April 30, 201830 April 2018

I Am Jane Doe: Ethics and morality for the in-house counsel

 

It’s a lawyer’s job to advocate for clients. But what can or should a lawyer do when the clients they’re representing cross moral or ethical – if not strictly legal – lines? It’s a question we’re used to hearing criminal defence counsel answer; we’re less used to the idea of in-house counsel taking it on.

But that was the topic of discussion Sunday night at the opening of this year’s CCCA conference in Toronto. The conference, titled Beyond Borders, certainly pushed the boundaries of what’s expected at a CCCA conference by screening the documentary I Am Jane Doe, which follows the successive cases brought against Backpage.com by young sex trafficking victims whose bodies had been sold on the company’s web pages.

The event, which included a reception before the screening and a panel discussion afterward, was sponsored by Baker McKenzie, which has a long history of working to prevent forced labour, including sexual exploitation. In Canada, it has partnered with Covenant House, Canada's largest homeless youth agency, to provide free legal assistance to residents of a new community residence for victims of sex trafficking.

There were many jarring scenes in the documentary, including one where the in-house counsel, Liz McDougall, deflects a barrage of questions about defending a company that participates in the sexual trafficking of children.

Panellist Dorothy Quann, the former Vice-President and General Counsel of Xerox Canada, now retired, pointed out that MacDougall was in one sense simply doing her job, and coming “across very well in support of her client … She had a job to do and she remains very certain in her job, but a lot of us would think she’s on the wrong side of a moral argument.”

The documentary details how, time and again, a strong moral argument – how wrong it is for a business to profit from the sexual trafficking of a child – lost when it came up against a law that protects internet publishing companies from being implicated in content posted by third parties.

Morals, says Quann, are our personal or societal beliefs about right and wrong; ethics are stances imposed upon us – by law societies or our business code of conduct, for example. “I think we’re comfortable staying on the right side of the law, and that’s why it seems egregious that the law is protecting” this kind of activity.

Moderater Kevin Coon of Baker McKenzie asked panellist Grant Borbridge, Q.C., who is Senior Vice-President Legal and General Counsel of MEG Energy, how he defends what some would say is the indefensible oilsands industry.

Borbridge says lawyers need to find the balance between what they need to do as lawyers while at the same time remaining true to their own morality.

Society has decided that some companies are crossing a line, but “as individuals we have to find where that line is,” he says. “ In many cases the legal team and general counsel will be the legal conscience of the company, to be the ones who say ‘this is where the line is and we have to make sure we don’t cross it’.”

The third member of the panel, Jaime Watt, was the only non-lawyer present. As Executive Chairman of Navigator Ltd., a public strategy and communications firm, he’s called in when things are going wrong for high-profile people and companies.

People are entitled to advice from a lawyer, he says – they’re not entitled to his services, so he’s in a position to decide whether to represent a particular client based on his own morality. Dealing with legal jeopardy and reputational jeopardy – even moral jeopardy – was a different job altogether before Google and the internet, says Watt. Now it’s like pushing on a waterbed – dealing with one part of the problem just pushes it somewhere else.

Quann noted that at one time a company’s financial performance was the primary preoccupation of the board, but now they have to pay attention to a much broader range of stakeholders in order to maintain the company’s reputation.

“Risk is not just reputational risk, it’s the broader underpinnings of what your company stands for,” she says.

Borbridge added, “There are generations coming behind us that care a lot more than we did about the moral issues… We need to be leaders, we need to take a stand when a stand needs to be taken and be that moral compass.”

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