Harpreet K. Sidhu – GC Powerlist
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Canada 2020

Healthcare

Harpreet K. Sidhu

General counsel, corporate secretary and privacy officer | Pethealth – A Fairfax Company

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Canada 2020

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Harpreet K. Sidhu

General counsel, corporate secretary and privacy officer | Pethealth – A Fairfax Company

About

Editor’s note: This interview was conducted prior to March 2020.

What are the most important transactions and litigations that you have been involved in during the last two years?

I have completed over a dozen global M&A transactions, and was involved in the company’s starting up operations in Germany under the brand of Heimtier Plus. I have also worked on numerous litigation files, including involvement in successfully defending the company from a US$44m class action lawsuit in the US.

If you had to give advice to an aspiring in-house lawyer or general counsel what would it be and why?

Most lawyers entering the in-house world enter from private practice. People often argue that leadership and judgment are essential for lawyers in-house. However, the attributes that companies look for in the general counsel position are a combination of both instinctive and learned, and qualities that people regard as innate can often be developed with practice.

The most important attribute sought in or expected of a strong general counsel candidate is good and tested judgment. It is extremely valuable for a general counsel to have experience, both in dealing hands-on with complicated, messy matters that require consideration of compliance, litigation, business processes and suchlike, and in leading complex, cross-functional teams and assignments. There is also substantial non-legal expertise you need to be a successful general counsel including communication skills, being a business partner to the executive and ability to manage risk and assess business projects for compliance and risk.

Lacking direct authority, you must have the presence, speech and substance to engender confidence and credibility with the board, CEO and other business leaders. The general counsel must come across as confident but also thoughtful.

What techniques do you use to provide commercially-focused advice to your company, and how do you communicate these to more junior lawyers in the team?

As an in-house business partner you will rarely receive a formal set of instructions, but I always encourage my junior teammates to follow up with an email or a note from business meetings. This is a good practice to implement into your day to day practice as business initiatives change quickly and the legal folks may not always be invited to all meetings. This helps to alleviate any uncertainty and ensures everyone is on the same page.

FOCUS ON: DOING THINGS DIFFERENTLY

“We do things differently over here”.

When your corporate headquarters are in Canada but 75% of your corporate operations and revenue are outside of Canada, just how does one practice law? Most general counsel act as advisors to CEO’s, managing directors, division presidents, and vice presidents who are running lines of businesses outside of their corporate atmosphere and in other jurisdictions like Europe or the Americas. Where there is no corresponding in-house counsel, or in most cases only one or two, they often advise the related foreign affiliate directly. As businesses go global, the nature and scope of what constitutes a “privileged communication” between in-house counsel and a corporate subsidiary is being put to the test. As companies aim to stay within budgets and cut resources, in-house counsel often find themselves advising all divisions of a business from Europe to the Americas.

First year law school taught us that client communications with in-house counsel are covered by solicitor-client privilege when they are made for the primary purpose of seeking or rendering legal advice. This fundamental principle is firmly rooted in Canadian jurisprudence. Several European countries, however, including France, Italy and Sweden, do not recognise a privilege between in-house counsel and their clients. Other countries such as the UK, Germany, the Netherlands and Belgium recognise a limited privilege. In Akzo Nobel Chemicals, Ltd. v European Commission, the court laid out that an in-house lawyer, despite their enrollment with a Bar or Law Society and the professional ethical obligations to which they are subject to, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client.

I have often found myself in a bit of an awkward situation when I am based in Canada but advising managing directors and division presidents in Germany and the UK. After providing advice, the generic disclaimer before actually accepting my advice is, “we do things differently over here.” Despite the issue of the advice being covered by solicitor-client privilege or not, there are often cultural barriers which have an impact on the relationship between in-house counsel and their foreign clients. Given the state of the law, however, in-house counsel who advise foreign affiliates should consider the following best practices:

Educate yourself on the privilege laws in the countries in which you have responsibility and/or your company has operations.

Knowledge is power. Complete regular training and education for yourself to keep yourself updated on recent developments in the jurisdictions where you operate. Counsel your business colleagues on the discoverability of internal documents that request or respond to inquiries for legal advice, and the need to consult outside counsel.

Maintain good relationships with a few senior partners of external law firms where you operate. Before you advise a foreign affiliate where you are not 100% sure, phone an external law firm friend. That way when you get the disclaimer from your foreign colleagues, you have the benefit of the doubt.

Segregate privileged documents relating to work with outside counsel from non-privileged documents to minimise risk. Limit distribution of the written communications only to those business colleagues who truly need the information. It is often corporate practice to send an email to a business colleague but C.C. eight others in as an “FYI”. Often, in-house counsel like to shorten the recipient list to only those who need to know. For day-to-day routine legal advice in those jurisdictions where the privilege may not apply to in-house counsel or is questionable, consider providing your legal advice orally and not by email.

The above mentioned decision increase the challenges in-house counsel face in modern day legal practice. Rather than risking surrendering privilege altogether, it may be best to retain external counsel on more sensitive matters to preserve privilege if absolutely necessary.

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