Category: Features

Taking up a career in law is a full-time undertaking – of that there can be no doubt. There’s just no substitute for the commitment, both personal and professional, to pursue the pinnacle of the legal track. You’re either in or you’re out.

Or are you?

In that respect, Ironclad general counsel Chris Young is certainly the exception to the rule. Taking up law as a backup option following the disappointment of a professional athletic career that didn’t quite materialise, Young would wax and wane between the worlds of lawmaker and legal practitioner throughout his 20s and 30s – the period of time during which most wide-eyed lawyers are busy cutting their teeth at the photocopier and tailing partners in the faint hope of recognition.

But taking the well-trod path was probably never going to be an option for Young – it just isn’t in his nature. Five minutes in his company is more than enough to demonstrate that to even the most prominent traditionalists from the legal industry.

‘My journey, it certainly isn’t the usual one – nor one that that I think too many people would be in any rush to emulate,’ says Young.

‘I’ve taken a lot of chances, a lot of risks and I’m fortunate enough to have come out on the right side. Some of that has been through good old-fashioned hard work, some has been through being in the right place at the right time. But I’m not too proud to admit that a lot of it has probably just been straight-up luck!’

HOOP DREAMS

Despite living a career (still in its relative infancy) that would be the envy of those pursuing either law or politics (or both), neither were even on the radar for Young as he entered his final year of high school.

‘Like many 18-year-olds, I was convinced that not only was I going to get a full-ride scholarship to a [National Collegiate Athletic Association] Division I school, but that I was probably going to play in the NBA one day. It wasn’t too long after my senior year of high school that I realised my dreams in that respect, unfortunately, were probably not going to come true,’ says Young.

‘Becoming a lawyer – honestly, it wasn’t exactly my first choice. It came about when my basketball dreams didn’t materialise in the way I thought they would.’

That his basketball dreams didn’t materialise wasn’t for lack of ability or opportunity; rather, Young was a victim of circumstance and poor timing – certainly the only time those final two words grace this narrative.

‘I had received a full-ride scholarship offer to go to the University of Denver and play basketball for coach Dick Peth,’ recalls Young.

‘I decided not to sign before my senior year started, because we had such a strong basketball team that I figured other offers would come in throughout the course of my senior year. Turns out, there was no stronger offer than the initial one I received from the University of Denver.’

‘Just as I was scheduled to fly out and sign my letter of intent and meet with Coach Peth, he called me to let me know that he was moving on to a different school. The head coach position was going to be assumed by another Division I coach from the south, who would be moving up and not only taking that position, but bringing his recruits with him. The upshot was, if I hadn’t signed by that point – which I had not – I no longer had a slot.’

Through no fault of his own, Young’s dreams of starring on the hardcourt had been squandered – forcing an audible of the highest significance at the most inopportune moment. But disappointment is all about how you deal with it. And Young had the right support networks in place to help him retain a level head and chart a new path.

‘I’ll never forget the conversation my father and I had one night after that. We stayed up until the sun came up, talking about what I was going to do, what my career was going to be if I didn’t play basketball. It was that night I decided I wanted to be a lawyer,’ he says.

‘What first piqued my interest in the law was the prospect of becoming a sports agent. I figured that if I couldn’t play basketball myself, maybe I could represent basketball players – help guide them financially, legally and otherwise – and potentially make a good living myself. It seemed like a dream job, I’d still be around sports, but as a lawyer. Not a bad consolation prize to being a player myself.’

KEEPING IT CIVIL

Adjusting at the last moment is rarely an easy task – let alone when the stakes are as high as deciding on a tertiary institution and, subsequently, a career. But Young would take it in his stride and, following a whirlwind tour of prospective colleges, opted to accept a place at San Diego State University.

‘When I got to college, my mind opened up much more than I could have imagined. I had a chance to take honours courses at the university and learn about things I hadn’t learned about before – I really got into the civil rights movement,’ says Young.

‘What fascinated me was not only the ability of a bunch of ordinary people to come together to do extraordinary things, but the role that the judicial system – and in particular lawyers – played in those civil rights battles. I became inspired by some of the lawyers who, throughout history, fought for and on behalf of people who didn’t have rights everyone else had and often didn’t have the voice to fight for themselves.’

Young credits his interest in civil rights, but perhaps more broadly his success during this period, to the strong mentorship he received from a number of figures who were willing to give him the benefit of their time and experience. But one in particular stands out – someone who continues to play an important role in his life to this day, nearly 20 years on.

‘For me at the time, it wasn’t just reading the literature or attending the classes that led me to be so passionate about civil rights and trying to affect change, it was actually a professor named Dr William Cheek,’ explains Young.

‘I had the privilege of taking his class when I was 20 years old. He was a white southerner from Virginia with a southern drawl. I walked in and I immediately thought, “I’m not sure this is going to work.” So I sit in the back of the class as I always did. Throughout the year I’d move up closer and closer to the front of a class based on how engaged I was with the subject matter. It only took me two weeks to sit in the front row of Dr Cheek’s class. And it only took two weeks or so after that to meet with him during office hours to get to know him.’

‘Dr Cheek is a well-renowned biographer and a historian who focuses on the civil war, reconstruction, and the Jim Crow and civil rights eras. Being with him and learning more and more about our country’s rich yet disturbing history is really what heightened my newfound passion for civil rights and considering how I might one day try to affect change after earning a law degree and becoming a practising lawyer.’

A TASTE OF GOVERMENT

As Young graduated from San Diego State with a Bachelor of Arts, with law school and the pursuit of civil rights both weighing heavily on his mind, he faced a crossroads of sorts. One, he admits, was rooted in fantasy as much as it was in reality.

‘At this time, I had this vision and this fantasy of one day working to bring people together. Bridging the divide in America, creating empathy, and doing all the magic that some of these giant legal minds and practitioners had done in this critical era of American history, the civil rights era,’ says Young.

‘I applied for law schools. I also applied to be a Senate Fellow in the California State Senate. The idea was that I always knew I had some interest in government, politics and policy.’

While a desire to pursue politics in some form was of clear interest for Young, instead, he would opt to return to Sacramento and put law school on hold – a decision in large part motivated by a desire to return home and help his family, in particular his mother, who was recently widowed following the loss of his father.

‘Instead of going straight to law school, I took a different track and before starting my fellowship in the Senate was presented with an opportunity to intern with a man named John Burton, who was a long-time, well-respected senator representing San Francisco. It was in his office that I responded to letters from prisoners who had complained that their parole date continued to get pushed, and they were being wrongfully denied their day in court, so to speak,’ says Young.

‘It became really important to me to learn about these issues, learn about the Prison Litigation Reform Act and to be responsive to the prisoners that were frustrated that they didn’t have a chance to prove they were worthy of a second chance.’

DREAMS FOR MY FATHER

In a period where Young was laying the foundations for his future professional life, it’s prudent to consider how his past – and, in particular, that of his parents – shaped the philosophies and beliefs that would characterise this time for him.

‘My father is black, he was from just outside of South Central Los Angeles – specifically a city called Watts. He ran away from home when he was 11 years old, joined a gang, and became a well-known gang leader over the years,’ explains Young.

‘He also spent most of his adolescence and early adult life in prison. In fact, the last time he served in prison, he served in Folsom Prison, which is near Sacramento. When he paroled from prison, he decided not to go back to Los Angeles, and instead stay in Sacramento.’

That decision would be a life-changing chance for Young’s father – much like the ones which have shaped Young’s own life – eventually leading to his father and his mother meeting, as well as the chance for his father to pursue higher education himself, going on to become a married school teacher with children – a far cry from the life he left behind.

‘Despite not having spent a single day in high school, my father taught himself how to read in prison and very much wanted to get a college degree. After completing his last stint in the penitentiary, he enrolled in the Educational Opportunity Program through Sacramento City College. He rented a small studio apartment in a house, a Victorian house in downtown Sacramento, referred to as the Pease Conservatory,’ says Young.

‘It was at this house where people taught music too. My father was in this little studio upstairs. The second and ground floors were people teaching music. My mother was a young piano teacher, with blonde hair and blue eyes. My father admired her from afar, but he was black, had been shot in the face, had scars all over, was beat up, and fresh out of state prison. He thought, in no world, in the early 1970s, when it was still illegal in certain places in the United States to even marry someone who wasn’t your race – particularly a white woman marrying a black man – that there was any chance in hell that they would actually link up. But they did and as soul mates enjoyed a long, beautiful marriage before my father died nearly 30 years later.’

SO, ARE YOU GOING TO HELP?

Fast forward a few years and Young would find himself facing opportunity once more. After accepting a scholarship to UC Berkeley to study law – slightly later than anticipated but not without the benefit of government experience – Young would find himself working as a litigator at Morrison & Foerster.

‘While there, I had the opportunity to join Tony West, another mentor of mine [and now general counsel at Uber], and a few others to participate in a conference call with Barack Obama. We were all early donors to his exploratory committee. On the call, Obama mentioned that he would make a decision over the holidays about whether to run for President,’ says Young.

‘Well, as we know, he did in fact decide to run and made his announcement speech in February 2007 in Springfield, Illinois. At the time, I flew out to attend his announcement speech with what’s now quite a star-studded line-up of folks: Kamala Harris, who’s herself running for President but was then district attorney of San Francisco; her brother-in-law, Tony West; now-mayor of San Francisco London Breed, before she’d ever run for office; and Ben Jealous who just ran for Governor of Maryland.’

‘This little group of us, we were all living very different lives at the time, but had the opportunity to go down to the basement of the Capitol with Obama’s close friends and family. We had the chance to meet with Barack and Michelle [Obama], exchange niceties and take pictures.’

It was at this brief gathering that Young, unbeknownst to him at the time, would leave an impression on the future President – although probably not for the reason he had hoped.

‘I had to take multiple pictures with Obama because the camera I was using kept failing to fire properly. He seemed to be getting a little annoyed with me, but I showed him what was happening and he was cool about it. From then on, he seemed to remember my name – even if it became a bit of a running joke,’ explains Young.

‘Two days later at a kick-off fundraiser in Chicago, I went up in an elevator together with both Barack and Michelle. The first thing he said to me was “Another picture?”. Every time I saw him from then on, I was always asked about whether I wanted a picture. Until one day he said to me, “So are we going to keep taking pictures or are you going to help me with this campaign?”’

YES, WE CAN!

While the offer from Obama was a tempting one, it wasn’t as straightforward a decision as it may have first appeared, particularly with the benefit of hindsight. Now secure in a role at Morrison & Foerster, with the prospect of clerking for a federal judge on the horizon, joining the campaign of a man then seen as having a remarkably outside shot at the presidency represented a major risk – personally, professionally and financially.

‘At this point, I hadn’t taken it too seriously. But when I gave it some thought, spoke with some of the folks at the firm, as well as the deferral district court judge I was supposed to clerk for that summer, I made up my mind,’ says Young.

‘Both the judge and a few partners at the firm really encouraged me to take a risk and go out to campaign with then Senator Obama. So I took a leave of absence from Morrison & Foerster and worked out an agreement with the judge to go back at a later date and I set off as Obama’s first hire based here in Northern California as his deputy finance director.’

While the backing of his legal contemporaries may have made the decision easier than first anticipated, Young believed in the message and timing of what Obama was campaigning on.

‘For me personally, Obama’s message resonated because what he talked about was something that I’d lived. Like him, I had a white mother and a black father – I could empathise with his situation, figuring out his identity as he grew up,’ explains Young.

‘I also appreciated the unique talent Obama had with his ability to stir the emotions of the masses and create empathy between groups that historically have been divided. In being white and being black, he could navigate between both worlds, so to speak. I also thought at the time, two years into George W. Bush’s second term, that what the country needed was unity. We needed someone who could bridge the divide and bring us together. That’s what originally attracted me to the campaign.’

Proudly recounting war stories from the campaign trail – and what represented a near two-year commitment in his life – Young can distil the personal takeaways to a single, most prominent lesson.

‘One of the biggest lessons I took from spending as much time as I did with Obama was his ability to keep his composure. He really always, always embodied that, it didn’t matter how stressful a situation would be, all the highs and lows of the campaign, he remained composed,’ says Young.

‘I’ve often looked back on the highs and lows he faced, how he dealt with them, then used those as inspiration as I navigate my own life – both personally and professionally.’

LAWYERING UP

In the years that followed the Obama campaign, Young would tread the line between both law and politics, working with Sacramento Mayor Kevin Johnson’s transition team in the immediate aftermath of his election and later his senior counsel and adviser, then as a political appointee in the US Department of Justice, before taking up a position at litigation powerhouse Keker & Van Nest [now Keker, Van Nest & Peters]. After spending four years there, he would depart to join a former colleague at the venture-backed upstart, OpenGov, an opportunity to combine his legal knowhow with his passion for politics.

‘While at OpenGov, I got a call out of nowhere from a partner at a well-known venture capital firm who asked if I had any interest in being the first lawyer at a company called GoFundMe. At the time, I was happy with my position. I hadn’t heard of GoFundMe – something I would later learn put me firmly in the minority of most Americans,’ Young explains.

‘I went in, I spoke with the folks, was impressed by the service and what the platform provides people all over the world and, of course, the team that they had assembled to take the company to the next level was incredibly impressive. I was fortunate enough to receive an offer, and I joined the company shortly after.’

At GoFundMe, Young had the opportunity to cut his teeth as an in-house counsel, while also shaping the direction of his department of one and helping to cultivate a culture that resonated with his own personal beliefs and philosophies, particularly in the area of diversity and inclusion.

‘What stood out was that GoFundMe understood that it had a very diverse userbase and so, on our executive team, there was a real premium placed on championing diversity both in terms of personnel and of perspective. For me personally, in the legal department, most of my work from a diversity and inclusion standpoint was carried out in the form of hiring diverse outside counsel, and hiring underrepresented minorities on my team. I’ve often believed that it’s good to talk about diversity, and raise the issue, and make sure it’s at the forefront of folks’ minds, but I found that even more important than talking about it is actually acting on it,’ says Young. ‘At GoFundMe, like many other companies, the legal department was viewed as a cost-centre and in-house lawyers are often expected to do more with less. Whereas I had worked at the US Department of Justice and at a private law firm where you have all the support you could possibly need, as in-house counsel I had to quickly figure out ways to build machines or to procure software that would help cut out a significant amount of the administrative work so that I could focus on the more strategic and impactful work that was expected of the company’s counsel.’

It was during this search for technological efficiency that Young would first come across Ironclad – then a small-time start-up, whose software was helping to change the face of contract management for in-house counsel.

AN IRONCLAD OPPORTUNITY

‘Ironclad’s focus was on contract management, including by automating various contract-related processes that turned out to be pain points for me. I implemented it relatively quickly. In fact, it was the first software I procured, ever, but also at GoFundMe,’ says Young.

‘In getting to know the organisation well, I realised very quickly that every company is a contracts company and every team is a contracts team. Whether it’s HR, sales, marketing, finance, G&A, you name it – contracts are everywhere. And for any in-house counsel, manually managing contracts and not knowing where they all are or what’s in them is going to keep him or her up at night. So, I watched this company with this incredible product address a need in the market that was absolutely glaring and, over the years, watched them continue to grow and evolve. Fast forward almost three years from the time that I met Jason [Boehmig, CEO], there was an opportunity to join the company as its general counsel, and I jumped at it.’

Now six months into his tenure at Ironclad, a company that, like any start-up – even one backed by venture capital powerhouses like Accel and Sequoia – once again represents both major risk and opportunity for Young, he remains upbeat and excited about what lies on the horizon for the upstart company – after all, for a legal software company, it’s hard to have a better recommendation than an avid user coming on to join as general counsel! Faced with the prospect of once more starting from scratch and having to reinvent himself, it again becomes a matter of first principles for Young.

‘For me, the North Star has always been an insistence on spending my professional time having a positive impact on people,’ says Young.

‘One of the lessons I’ve learned throughout my career is that you can’t forget what initially motivated you to get a law degree. Although I have not become a civil rights lawyer, I’ve never forgotten why I decided to go to law school. It’s to effect change. Change doesn’t have to be effected on the macro level, it can be effected on the micro level. It doesn’t have to be the entire United States or the world. It can be a community. It can be someone you mentor. It can be personal. It can be professional. It can be a combination of all those things. So long as I don’t lose sight of that, I’m up for whatever life may throw my way.’

Picture the scene. A darkened theatre. An expectant hush. The stage empty but for the waiting red spot.

But you’re not a professional speaker. You’re not a household name, ready to entertain with tidbits from your new book.

You’re a GC. And it’s compliance training time.

For Nishat Ruiter, this scene is not a million miles from reality. General counsel of TED, an organisation that has reinvented the conference, packaging mind-expanding ideas into pithy, spreadable talks perfect for both live enjoyment and the internet age, she is tasked with delivering legal concepts to an organisation whose stock-in-trade is communication.

‘People here love ideas. They are insatiable, curious people. It really feels that people who are at TED are there because they really feel driven to be there. I walk to the kitchen to grab a cup of coffee and I’ll be so enlightened in two minutes by the person I bump into because we’re talking about an issue or an idea or a solution that they found, and that becomes super compelling,’ she explains.

The compliance training bar is set unusually high, but rather than be daunted, Ruiter is inspired by the challenge.

‘The people at TED are working toward bringing ideas to as wide and as broad an audience as possible, but also focusing on the quality of the ideas. So then how does compliance match that? What do I do?’

She adds: ‘I would love for them… after hearing the calibre of speakers that are typically on stage at TED, including Bono, Sir Ken Robinson, Mellody Hobson and others, to hear something worth remembering and I realise the legal concepts should also represent great ideas – where possible’.

Any GC worth their salt has their finger on the regulatory pulse to spot compliance topics that will resonate with the legal and other issues facing their organisation. But the question of delivery takes something more than legal knowhow.

Ruiter created a bespoke compliance approach for TED staff, capitalising on the organisation’s open and collaborative culture to deliver a bold, fresh, and evolving suite of training events, based around three words: relevant, compelling and empowering.

Relevant

‘If you have a picture of compliance as a living, breathing, dynamic culture, you’re learning with your organisation, you’re in constant contact with your client, and you’re learning about how to best bring relevant information to them,’ says Ruiter.

‘I also value non-legal input to frame my compliance examples. Since I view things through a legal lens, it’s helpful to hear from non-legal colleagues how to use examples based on their day to day versus my own. This helps me fit into their frame of reference so when compliance examples are brought up, I tie it to real-life scenarios that they deal with every day to ensure it fits and sounds relevant to what they go through.’

For Ruiter, it is important to customise the presentation to the audience, leveraging the trademark TED informal style of presentation and using examples drawn from a similar industry sector, so that the message lands. And that message should be a positive, practical one.

‘I don’t agree with the compliance training style of: “You cannot, you shall not”. I don’t believe that that’s as meaningful as: this is why we have to do this. This is why it’s important that we don’t fall into these traps. Here are ways to help you. Here are tools to remember. Here are some implications and cases that have arisen because someone didn’t learn how to do this. Here are examples of what you can look out for.’

But she is particularly careful to go easy on the level of detail.

‘If you ever look at a TED talk, the slides are typically used to amplify the idea that is being shared by the speaker. In legal presentations, the slides can comprise “all” of the ideas and typically fill up the frame, it’s designed with small font, and contains so much detail it is easy to lose the audience. Instead, I like to use animation and the use of simple graphics to illustrate brief points that summarise the lessons learned, hitting home with examples that are brief and to the point.’

Compelling

In Ruiter’s approach to compliance, the devil is not in the detail, but in finding a compelling format that can hold the crowd long enough to absorb the necessary points. This has led her to experiment with novel ways of delivering content.

‘To communicate an example of harassment, I created an audio podcast exercise, recording a couple of volunteers from TED in our studios. The idea was: what if two people were socialising after work, there was an interesting after-party, something happened, someone did something to someone. Rather than describing the scenario, we play the actual role-play in the podcast. We take the victim’s perspective first. Then I give them the opposite scenario. What’s the other person’s perspective? Because in every investigation that I’ve done in many years of doing compliance, there’s always two sides to the story. They hear the situation. We pause. I ask them what they thought,’ she explains.

‘I made this very personalised. I only had up to 25 people in the room. We served doughnuts. We allowed for questions. We made it intimate and we allowed for this in-person training because that is what I know will impact them. They are so creative that I needed to hold their attention with something that’s authentic and real.’

On another occasion, she ordered custom-made cookies to get the message across.

‘When I first got to TED, we updated the privacy policy and needed to explain the use of cookies and consent. So, at the staff retreat, we ordered specially baked cookies that had the word “Privacy” written across them (in red of course). On stage, I had about five minutes to present the concept and explain privacy, consent and why we updated our policy. So to demonstrate, before I passed out the cookies, we made sure everyone had to “accept” them first. It made a “tasty” impression and, while I don’t know for sure, my sense is that everyone walked away understanding cookies and consent in a way they never expected,’ she recalls.

Empowering

‘One of the biggest opportunities I believe lawyers have is to move away from the “us” and “them” concept, especially for in-house counsel. Using phrases like “They would never get it” or “They don’t care about legal” or acting as if legal is better than their clients misses a great opportunity of learning for everyone,’ says Ruiter.

‘Unless you make it a “we” situation, I don’t think they’re ever going to really take you seriously and I think that it’s not going to be as compelling and as effective as if you make it an “us”. We’re all here together. We all work for the same company.’

TED has an anonymous reporting system to address internal code of conduct issues, which staff are encouraged to use. The reporting system allows for a more transparent process where anyone can raise topics of concern without fear of retaliation, a protection that Ruiter believes is very important to retain when dealing with compliance.

‘Another way to address empowerment is to ask them to help with spotting red flags. This is a concept that seems obvious but can be lost when planning training in the field. In some ways, I feel like I have 250 staff members that play part of a legal role in their day to day, because they are looking and noticing issues before they arise and that helps me address them proactively. Training should be geared to tap into their sense of what is right and how to spot a “red flag” so they can get used to identifying concerns before they become a problem. Using case studies and examples, we explore together during the training questions such as: What could they have done? Why did the person choose the wrong direction? How could they have prevented the issue from happening? When you ask questions like this, and promote an open and honest discussion, there is a different level of involvement and engagement. Honestly, it reminds me of the challenges of being a parent. You can always tell your child “not” to do something, but in my experience it is more effective to show them why it is important, present an example that is compelling and help empower them to make the right decision.’

After internal training events, Ruiter sends out a survey of open questions to uncover what resonated and what didn’t among attendees, which can then form the basis for future improvement.

She explains: ‘I wanted to be transparent. We’re always learning and it’s important to always get better. Survey questions have been: What parts did you think were interesting? Was there a part that you really enjoyed? Was there any area that was confusing? Do you have any questions? Is there anything you’d like to learn more about? Is there something that bothers you? Why or why not?’

Fundamentally, Ruiter believes it is important to employ tools that empower non-legal colleagues to take ownership of the compliance training process, rather than passively complete off-the-shelf packages that, no matter how ‘interesting’, fail to strike a chord because they are too generic to speak the language of the organisation.

‘Assume that the people in the room can actually help – if you could ask them to help do something, what is it that you’d want them to do? Then frame the compliance training around that to give them real practical tools, and go back and be your advocate. That really reframes everything. It takes away from the us-them dynamic, it hopefully will make the presentation interesting and it will hopefully make it relevant, because you’re asking them to do something and be part of the process with you. I find that when you bring everyone on board and you share the same vision, a lot of amazing things can happen.’

On the road

TED compliance has an outreach element, as the organisation also retains a code of conduct for attendees at its annual conferences. TED conferences have always been organised to present ideas to attendees in an atmosphere of respect, professionalism and open curiosity to share ideas. However, at times, individuals that attend could lose sight of this important aspect of TED, and thus the code of conduct and reporting system is set up for all attendees, vendors and staff at the conference.

‘They have always been organised with the intent of maintaining an atmosphere of open curiosity, and you can’t do that if people are trying to oversell their stuff, or bothering you because they want to take a selfie because you’re famous, or harassing you, or discriminating against you and treating you wrongfully,’ says Ruiter.

‘The way we address our code of conduct at our conference is three fold: we publish our code of conduct in our programme, we have provided an anonymous reporting mechanism to allow for reporting in a safe environment, and we provide assistance with trained advocates to help attendees, if needed, in filling out the form or addressing their concerns. We created this system to help prevent issues and address them head on if and when they occur at the conference. By doing so, it adds a level of transparency and meaning behind our code of conduct that is of fundamental importance.’

Ruiter has trained a team of TED employees who act as advocates and assist attendees, if needed, as issues arise. If an investigation arises, then TED addresses each violation on site, either resulting in a warning, loss of badge privileges from a session or event, or it could result in sending the attendee home without a refund.

‘If we don’t know about the issue then things can fester and make the experience unfortunate or uncomfortable. When you’re in an employee organisation, you have managers and you have peers and you have colleagues, and you’re hopefully in a very friendly area where you will feel comfortable and you have resources like HR and legal to help you. When you’re an attendee, while you are not at a place of work, we still wanted to provide a resource that is simple and accessible for everyone.’

‘We have a process that shows to our employees the level of care and meaning behind the words that we give, and by having a dynamic level of code of conduct for conferences, it also reflects that we care deeply about the experiences even at our external events – and we’re there to help.’

Into the future

Right now, Ruiter is at the stage of refreshing her code of conduct training to reflect this year’s legislative and regulatory changes, and is developing new ideas to keep it fresh. In addition, TED has worked with an illustrator-designer to create a simple, brightly coloured employee handbook that matches the tone of the training.

Above all, she believes, what you do must be steeped in the culture of the organisation – which means that, ideally, you should be too.

‘Try to be authentic with your clients, and learn about what is relevant to them. By doing so, it changes perspectives from “them” to “we”, and from “I” to “us”… setting a better standard and approach that ultimately is more effective overall and can hopefully drive better impact.’

Photographs by Dian Lofton/TED

Latin America can be notoriously challenging for business. Volatile politics and economics teamed with concerning corruption levels in some areas, alongside a more stable picture in others, conspire to create a complex and nuanced regional environment – which keeps those in the role of regional counsel on their toes.

Ines Bahachille, associate general counsel for Latin America at US IT company Ingram Micro, put a Sinatra-flavoured twist on her feelings about the region’s difficulties: ‘If I can make it in Latin America, I’ll make it anywhere!’

But the flipside is that having responsibility for markets as diverse as Mexico, Brazil, the South Cone, the infamous Venezuela, and others, can craft a unique set of skills for those tasked with legal responsibility at global organisations.

‘It makes you able to manage the element of surprise easily, to resolve complex situations with fast decision-making without panicking, and to see things in the proper context without the need to cause unnecessary alarm. It makes one lead by example, to inspire others to operate in a culture of integrity and to also demonstrate that local operations can actually influence the country positively,’ Bahachille explains.

‘It is important to vigilantly develop as deep a familiarity as possible with the legal frameworks and key local laws affecting the industry, but it is even more important to know what you don’t know, to have the judgement to know when it is necessary to call upon trusted local counsel and to be prepared to make adjustments to accommodate local differences when needed,’ adds Casey Furman, legal director, Latin America and Caribbean at Verifone.

Regional counsel have the opportunity to add value to the business in unique and highly visible ways, be that applying a creative approach to investments that a global company can make in local markets, or lobbying to positively impact the footprint of the industry more broadly.

‘Governments change, laws change and obviously we have to be very proactive and understand the impact that these changes may have on the business side. Our industry is evolving constantly in technology and we look to work through associations to lobby and educate both the regulators and the governments, as well as to understand the industry while at the same time ensuring that these regulations don’t have a negative impact on the business side,’ says Larissa Zagustin, general counsel for International Media Networks Americas at Viacom.

‘We’ve had many cases where there have been regulatory changes that have helped increase revenues, so the business teams have felt a direct impact from our efforts because it’s basically allowing what used to be more restrictive to be more flexible, where the business teams can now generate more revenues.’

Latin America has opportunities for growth that lend it enduring appeal for investors looking to scale in the region, meaning that global corporates continue to play an important role, despite operational challenges in some jurisdictions.

Viacom has been busy creating new business lines and building strategic partnerships, expanding both in scale and reach. An example is the launch of Miami-based Viacom International Studio, illustrating Viacom’s ambitions to grow its content creation across the region, producing content for its own platforms, as well as for third parties like Netflix and Amazon. The company also has a joint venture in Brazil, and acquired Argentinian television station Telefe in 2016.

‘The formats generated in Brazil and Argentina have amazing potential outside of those specific countries, so we’ve been looking to grow, take that intellectual property and expand it. Viacom International Studio is looking how to tweak these formats and export them around the world. So it starts locally, but the formats have been successful enough that we’ve been able to take them to other parts of the world where they create their own version,’ says Zagustin.

‘We’re not just getting a pipeline of content from Viacom centrally, we’re creating our own content within the regions within our division. We are also establishing great strategic partnerships with third parties and that’s where it has been a great opportunity for my whole team to engage in business strategies that are not the typical way of producing content.’

As in other regions, being a flexible and creative business partner is the universal key to demonstrating value to the business – while, of course, keeping a firm steer on the ethical and compliance elements.

‘New issues, some foreseeable and others not, arise regularly, and solving them takes forthright communication and collaboration with the executive team. Getting to that place of communicating effectively and solving problems collaboratively is about gaining trust. It is also crucial to have a strong commercial acumen. As legal counsellors, we need to keep in mind that we are here to be solutions-oriented and to make business goals happen. When executives know that you have that mindset, it makes collaboration and communication much easier,’ says Furman.

But having that unique dual vantage point of both a legal and business lens can be especially useful in Latin America.

‘We have to recognise that some situations are non-typical or “non-common sense” sometimes, and that is when the set of skills of a counsel in charge of this region becomes very relevant,’ says Bahachille.

‘Once you gain the trust of the business, it is important not to overthink and just be truthful and authentic about the challenges and potential solutions. The key is to always keep in mind that we work for a company and not for specific individuals.’

Like elsewhere, the progression of in-house counsel to a position of business partner in Latin America has been most pronounced over the past decade.

‘Nowadays the general counsel is sitting at the table with the business and engaged and involved from the start of any type of strategic goals for the company. I would definitely think that the evolution in the past 10 years has gone in the direction where my team and myself have been high contributors to the business side. And when you’re engaging outside counsel in the region, they’ve also gone in a direction of still acting as lawyers but being also more business-friendly,’ explains Zagustin.

With both Bahachille, Zagustin and Furman all based not in Latin America itself, but in Miami, the question arises whether having legal leadership on the ground is necessary. But Bahachille, dual-licensed in New York and Venezuela, and responsible for a 13-strong team of people based in the US, Brazil, Mexico, Peru, Colombia, Argentina and other Latin American countries, thinks not:

‘We are a global world and technology allows everyone to see what happens around it. I report directly to the global general counsel, and at the same time I am very close to the senior business leaders on different levels. Encouraging regional initiatives is always positive – trying to leverage learnings across markets and influencing the team to work together as one,’ she explains.

Furman agrees that technology is a boon: ‘We use systems to track the status and progress of projects, manage litigation and oversee external counsel spend. We are also implementing a new contract management system that will help us to better collaborate among our legal team situated across the globe and to service our business users.’

Among the most pivotal roles that a regional counsel can play is that of applying specialist local knowledge and judgement to connecting the dots between the region and the global business.

Says Bahachille: ‘The beauty of being an in-house counsel is that we see the whole picture – and if we are not in that place, we have to learn how to do it. Being a regional counsel is a complex and yet a fun role, as long as we enjoy what we do and we are not afraid of standing up for what is right and trying to grow the business at the same time.’

The reputation of the legal profession is one of long hours and high pressure. This is true for both private practice and in-house lawyers, but the former is relatively well-catered to thanks to the defined corporate structures of private law firms and large support bases within such organisations. The latter, on the other hand, are often islands within their businesses with few other nearby lawyers to whom they can go for guidance and support.

Enter MOSAIC. An acronym for Mentoring Opportunities Shared Amongst In-House Counsel, the organisation was founded in 2015 in London and seeks to pair in-house counsel with suitable mentors from the profession. By 2017, MOSAIC had exceeded 100 mentoring pairs, and launched in the United States in December 2018.

‘Having been in-house lawyers ourselves for a number of years, we understood the benefits and the challenges that working in-house could bring,’ explain Claire Debney and Emma Sharpe, co-founders of MOSAIC. ‘MOSAIC was borne out of an expressed desire by in-house lawyers generally to have access to advice and gain other perspectives from those in-house.’

‘There are all sorts of opportunities for people in the legal profession and it’s really exciting to see all the different groups out there – be they legal tech, legal ops, disruptive innovation, women in the law and so on – but it feels like the in-house community has been left to co-ordinate itself and each group seems to operate in a silo. We need to do better at coming together as one community, recognising and building on the strengths that each group brings. We hope this is where MOSAIC can make a difference.’

The core of the programme is a bespoke technology platform, and is used by the mentors and mentees in all stages of the process. Mentors and mentees signing up for the programme are asked to complete a questionnaire. A bespoke algorithm suggests potential mentors, which the mentee can then make a mentoring request to any one of the suggested mentors. The platform also manages the practicalities of the mentoring relationship: scheduling meetings, setting goals and general communication.

‘Matching also very much depends on the mentee’s mentoring goals. Our standard connection plan is for 12 months and reflects the membership fee. Mentoring can be long-term, short-term, project-based, and mentoring can take place on a peer-to-peer basis. The frequency of meetings, location and structure of the mentoring should be agreed by the mentoring pair.’

Jamie Pearson, VP and head counsel for the Asia Pacific and Japan regions at Takeda, is currently registered as a mentor within the programme.

‘If it’s a good mentoring relationship, the support offered has the potential to make a material difference to people’s confidence and happiness at work,’ explains Pearson. ‘To break the idea of support down a little, I aspire to provide my mentees with a safe space in which to speak honestly about their work and their career, and hopefully useful advice that moves them in the direction that they want to go.’

‘I think a good mentoring relationship can be incredibly valuable from the mentee’s perspective,’ says Chris Sherwin, senior counsel at AstraZeneca and a registered mentee. ‘Most of us can get by fine without a mentor of course, but if you want to do more than just get by and you want to really excel, then having a mentor of some kind is essential. A good mentor helps us to identify the best in ourselves and to find ways to develop.’

The relationship between mentor and mentee has been envisioned as a two-way street: the mentees see the benefits of having the ear and advice of a more experienced lawyer, but the benefits extend to mentors and the wider profession, as well.

‘There can be a huge amount of value in talking something through with someone unconnected with your work, but who understands the job, the struggle, the desire to reach one’s full potential, the challenges, and ultimately the end goal, which is probably that we all want to be happy and satisfied with our work,’ says Pearson.

‘What I hadn’t expected is how doing the mentoring has become important to me. I really don’t do anything difficult in this role: I listen properly, I sympathise, I try to give advice that helps, thinking of situations that I’ve been in that were similar, and I ask questions.’

‘Essentially, all lawyers want to be thought of as useful. This role makes me feel useful in a work sense, outside the immediate sphere of my employer’s needs, and that feels really great. I would thoroughly recommend becoming a mentor.’

‘These programmes help shape a diverse profession and take some angst out of navigating the career path,’ adds Nilema Bhakta-Jones, another of MOSAIC’s registered mentors and CEO of Alacrity Law. ‘It helps us to pay it forward and show compassion, kindness and that the profession is full of people willing to help others. The Legal profession can be brutal and the competition fierce; sometimes the human being can be chewed up and lost in the process. I want to see more good people, and women in particular, from diverse backgrounds succeed. I learn a lot from my mentees and I experience joy in helping others.’

Mentors and mentees can become a member of MOSAIC by visiting www.mosaicforlawyers.com

Over the past year, I have been drawn back to a poem that I first heard when I was very young, namely that of Leisure, by the Welsh poet W.H. Davies. A short piece, it ends with:

A poor life this if, full of care, We have no time to stand and stare.

Taking a step back from the frantic, full-on day-to-day demands of the legal industry is incredibly hard to do. But it can be the most rewarding, and fulfilling. Since I started to try and put this into practice, I have thought about the people I have met in the industry and tried to discover whether they have the same philosophy or if they are totally engrossed in the business of law. Some of the latter individuals are fascinating, passionately engaged in the subject, clearly dedicated to what they do. But I find the conversations often colder, and harder to maintain. They are not as interesting, simply because they often lack that fundamental skill – emotional intelligence.

Having empathy with your clients and your colleagues, trying to understand what makes them tick (and what doesn’t), has always been important, but it is too often forgotten. But it is what brings the best out of people, and is also one of the fundamental drivers of good leadership. The key to this is something that lawyers are, in my experience, often not so good at. As I say to my six-year-old constantly: you were born with two ears and one mouth for a reason – you need to listen twice as much as you speak.

This brings me back to my first point, taking time to ‘stand and stare’ and, in particular, understanding the value of sitting back and hearing someone else speak. I have tried to attend more conferences and events in the past 12 months, to try and soak up what is being said, and to exchange views with others in the industry. And before I get into this, I have seen a growing trend towards dismissing conferences, especially ones that are involved in tech and the dreaded i-word, as not ‘breaking out of the echo chamber’. There is some truth to this – it can be slightly deflating to turn up and hear the same legal luminaries preaching to the converted for the umpteenth time.

But dig a little deeper and there is tremendous value to be gained from these events. And yes, I know it is hard to take time out from the constant workload, but the working life of GCs can be massively enhanced by stepping away from the office and engaging with the wider community. You have to make time, and sometimes you have to invest, but the benefits are there for all to take.

I was invited to Legalweek at the end of January in New York, which discussed the business of law, diversity and inclusion, information and data. My approach to the event was simple: I listened and I engaged. When I arrived at each session, I put down the phone, didn’t check my emails when the speakers and panel discussions were taking place, and wrote copious notes. But I also put my head up and looked around the room – who was in each session, did I know them, could I see what organisation they were from.

At the end of each session, I spoke to the panel speakers and to others in the audience. Some I knew very well, some I knew only slightly and some I had never met. As a result, I had conversations about subjects I would not normally have encountered, made new connections, and some of those conversations are now following up into potential collaborations.

In short, at a time when most of the legal industry is obsessed with the aforementioned tech and i-word, blockchain, machine learning and the like – I went back to basics. I went back to human. A word kept cropping up time and time again in the sessions: trust. Trust is at the heart of all of our interactions in the legal industry, and trust is built on relationships. And relationships, as everyone knows, have to be worked at or they die. So, you need to invest in those relationships to get the best out of them, and to keep them going, even if there is no immediate outcome or need.

But here’s the thing: out of all that investment in listening to the panellists, talking to the other delegates and speakers, and engaging with the content, I gained something else. I learned something. In fact, not just one thing, but an absolute stack of ideas – new ways of working and a host of practical ways to make changes. From the theoretical to the here and now, the conference gave me a new insight into a range of potential solutions in the industry. All of us are magpies, stealing the best ideas here and there to shape into our own way of working. By taking some time out of the office, these events can help shape your thinking.

The things that I would be thinking about as a GC from that event are:

• How does ‘VUCA’ affect the efficiency of my team?
• Can I use the techniques I heard about to reduce the legal cost of my M&A transaction to a tenth of the price?
• How can understanding the ‘4Ps’ marketing concept change how I interact with outside counsel?
• Why are ALSPs are no longer ‘A’?
• How do I insist my outside counsel budgets my legal work appropriately and, subsequently, how to reward/penalise?
• How does Prudential’s ‘Spotlight’ programme actively track diversity in its law firms?
• How can I use origination credits to my advantage?
• What communication skills are needed with the C-suite to ensure they see legal spend is optimised?
• I have the data I need to improve my legal department – so how do I extract it for analysis?
• I don’t want ‘more for less’, I want ‘better for less’. But how?

I can tell you, the answers (or at least the right questions to ask at the start) were all there. The downside is that not enough GCs are there to hear it. True, there are some bad events out there, but look around and you will find huge value in attending the right conferences/seminars/workshops. Many will probably say they can’t afford the time to do it – after all, ‘time is money’ according to Benjamin Franklin. But looking at the above questions, realistically, can you afford not to?

‘If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place,’ – Eric Schmidt, CEO, Alphabet Inc.

The issue of data privacy has been an increasingly prevalent one for corporates and, subsequently, their general counsel in recent years. When the European Union’s General Data Protection Regulation entered into force in 2016 ahead of its 2018 implementation, businesses the world around were put on notice: the rights of the individual with respect to personal data – its collection, storage and use – were now subject to stringent protections designed to safeguard the end user against corporate interests.

But while the boundaries between business prerogatives and the right to privacy have grown increasingly clear, how companies – particularly those working in tech – handle requests for data from the government and law enforcement remains opaque, particularly with new – or, legally speaking, untested technology.

‘Uncertainty with technology is a real problem for civil liberties, because oftentimes what you’ll see is law enforcement trying to engage in a novel kind of search – or novel kind of information request – that’s never been done before,’ explains Esha Bhandari, staff attorney with American Civil Liberties Union’s (ACLU) Speech, Privacy, and Technology Project.

‘The lack of precedent apparent can be used to their advantage – almost an ask first and then see whether or not a court, or the subject of the request, pushes back. That creates a problem when you have the government or law enforcement pushing to try out new types of technology or search requests. The ambiguity in the law is used to their advantage because that particular fact pattern hasn’t explicitly arisen before.’

In such cases, the prerogative for protection of users often falls on the company faced with the request. In the first instance, advising on a matter like this will typically fall on the shoulders of the general counsel, who will be tasked with balancing the rights of the individual with those of the public at large – represented by those tasked with governing the general populous – as well as that of the business itself.

But in a world in which data and the broad-based learnings that can be derived from it become progressively more sophisticated and prominent, determining what constitutes the public’s best interest – particularly in the face of a distinct lack of judicial guidance – has become nebulous at best. When that decision falls on corporate institutions instead of an independent judiciary, weighing the costs of doing the right thing against corporate imperatives like shareholder primacy becomes even more difficult.

This very issue came to the fore in the wake of the election of President Donald Trump, when law enforcement served subpoenas on a deluge of digital companies in an effort to obtain information which could lead to the identification and arrest of those involved with protesting and causing unrest in the run up to his inauguration.

‘It really harkens back to the question of, “Are we really living in a place where America’s own government is going to be spying on political dissidents?”,’ posits Stephanie Lacambra, criminal defence staff attorney at the Electronic Frontier Foundation (EFF).

‘It shouldn’t really come as a surprise given the practice of spying on dissidents goes back through many decades, from the civil rights movement to the Black Panthers. But what’s different now is that these requests are using technology to achieve their goals. In the information age, spying takes a different colour.’

DISRUPTJ20

In 2016, following the election of Donald Trump, a group called DisruptJ20 began posting online to organise protests to disrupt his 20 January inauguration the following year – relatively mundane stuff in the murky and anonymous online world. But when the US Department of Justice demanded access to all of the information held on the group by their webhost, DreamHost, it became a point of moral principle for the Los Angeles-based company and its general counsel, Chris Ghazarian.

‘Originally, we received a subpoena from the DOJ in January demanding information about the owner of the DisruptJ20 website. We reviewed the subpoena and everything seemed normal, so we produced the information,’ explains Ghazarian.

‘Fast-forward to July and this time we’ve been served with a search warrant, again, the target being DisruptJ20. The warrant we were served with wanted all of the information that we had about the website, not just subscriber information, email address or email content, they wanted our entire database of what we held on DisruptJ20.

‘That amount of information would be huge – we have our own logs that we keep internally for our systems, which include things like HTTP logs and the IP addresses of our visitors. Those IP addresses were the central issue of our case.’

While DreamHost regularly receives orders for information from law enforcement, the scope and depth of the request was unusual – prompting a deeper look from Ghazarian and his team.

‘The first thing we did when we received the warrant was to look over it with our compliance analyst, who told me about the scope. We went over it together and agreed that it was a very overbroad warrant, which was seeking a tonne of data,’ he says.

‘We reached out to the US attorneys that were working the case to have a conversation, because the warrant was overbroad and turning over that amount of information was a ridiculous request. We do this often when we take in court orders or government requests: we spend a lot of time on them and that usually involves reaching out to the appropriate agency or firm or whoever it is if we feel that it’s overly broad. But in this case, when we reached out, they were silent.’

What followed a week later was a motion to compel from the superior court in Washington DC, a common tactic used in discovery proceedings to force a non-complying party to turn over the requested information when they have either refused or the response received is deemed insufficient.

‘That didn’t sit well with us because, historically, we’ve been staunch supporters of privacy. We’ve always taken a strong stance against overly broad requests or similar issues when they arise with law enforcement,’ says Ghazarian.

‘We’ve maintained a strong relationship with all of our law enforcement agencies in the US. We’ve had agents back and forth all the time, we talk to them frequently. Never before had we had an issue like this, where we’re facing a motion to compel and the other side isn’t willing to play ball. So we took a step back, looked at the case up and down and realised we had something very interesting on our hands.’

OVERSIGHT OR OVERREACH?

With an unusual case afoot and significant privacy issues in play, DreamHost prepared to take the unusual strategy of starting a blog to alert the public just what was going on – a move Ghazarian says he was comfortable with after confirming that there was no gag order associated with the warrant.

‘What was particularly unique about this case was that we were dealing with so many people who had innocently visited the website and were going to have their information turned over to the government,’ Ghazarian explains.

‘The government claims that they don’t do anything with the information they don’t use – essentially that any information they didn’t need to look at would be deleted. But in reality, everything is digital, so you can never truly confirm whether something’s been deleted or not. You couldn’t do that with paper in the past, and in the digital age it’s so much harder. When you’re sending a file over the internet, there’s no way you can be absolutely sure that something hasn’t been copied or screenshotted. There’s no real audit trail.’

‘If we were to turn over this information, we would basically be handing over the browsing habits and identities of tens of thousands of people. We had 1.3 million IP addresses associated with DisruptJ20 over the course of the time span in the warrant. But the individual logs tell you a lot more than just that: the amount of time you spend reading each page, the photos you looked at or other links you clicked on originating from that page – everything is recorded. So you’re handing over an entire logbook to the government and that’s disturbing. Very disturbing.’

Of particular concern with the warrant was the content of the site and its underlying purpose – to organise peaceful political protest – which brought to the fore First and Fourth Amendment issues and concerns about whether the request was constitutional.

‘Freedom of speech and freedom of association were really implicated by the breadth of the request that was made,’ says Bhandari.

‘The warrant was specifically requesting information about people who had visited a website discussing organising a protest that was oppositional to the administration. What happens to our rights for freedom of expression, freedom of speech and freedom of association when all of our communications can potentially be seen, stored and analysed by the government? ’

‘Freedom of association was one of the issues we really honed in on and the fact that this can potentially be a very interesting issue if the government is taking action that can suppress that freedom,’ adds Ghazarian.

‘If you found out that your browsing habits are turned over to the government because you visited a political website, then the next time you want to read about politics or visit a political website, you’re probably going to think twice about whether or not you want to click on it – particularly if you know that there’s a blacklist of all of your information going straight to government from a webhost or ISP (internet service provider).’

DREAMHOST v DOJ

Because of the seriousness of the issues raised in the warrant, as well as DreamHost’s commitment to protecting the privacy of its users, the decision was made to challenge the order in court. Ghazarian retained a Washington DC-licensed external counsel and together, they began putting together DreamHost’s defence.

‘We filed our first argument late on a Friday night. I can remember working until after midnight, drafting the argument, books open all over my office, whiteboards littered with nodes and sites – it was a real throwback, like going back to law school,’ says Ghazarian.

‘Then, after the weekend, we posted our first blog post live on Monday. It was a very short blog which explained the request that we had received and what we were doing to fight against it. I went to bed that night and had no idea what was about to hit me on Tuesday morning.’

After the blog went live on Monday, the media went into overdrive – with Ghazarian tasked with fronting up and representing DreamHost – truly thrusting the issue and case into the public consciousness.

‘I’d never had anything like this happen during my career. I was in shock. I passed the bar in 2015, had barely been practising for two years and then suddenly I’m being asked to get ready to appear live on television to be interviewed by Anderson Cooper on CNN! Nothing can prepare you for that,’ says Ghazarian.

‘That was the day that everything really went public. It was crazy, but putting our case in the public eye – despite the pressure that came along with it all – the amount of support we received showed that we were doing the right thing. We had no intention of making this a front-page story, we just wanted to show what was happening behind the scenes and the type of things we do for every single one of our customers and ever subpoena or request that we receive.’

The likes of the ACLU and EFF were quick to offer their support, with more than 100 organisations signing on to a joint public letter to then attorney general Jeff Sessions expressing concern over what they saw as an infringement on American values.

‘When we were involved in the case, we had a number of companies, senators and congressmen who were all lobbying for us directly to Jeff Sessions,’ says Ghazarian.

‘We also had a number of major tech companies publicly come out to back our decision to fight this order. We received a ridiculous amount of support, offers of donations, connections. I was getting calls left and right from so many people in politics and I’d hear the name and be like “Oh my god, I’ve heard this guy on the news so many times”, or you’d Google their names and find out a senator from some far-flung state would be offering their assistance.’

The outpouring of support and assistance, both publicly and behind closed doors, in addition to the wall-to-wall media coverage ignited significant public debate – mounting pressure on the DOJ to justify the legality of its actions specific to this case, as well as its overarching operating procedures. Facing a public relations nightmare and the prospect of a very public, potentially uphill battle in the courts, the DOJ retreated.

‘Two days before the hearing, there was breaking news on TV that the DOJ had pulled back their request for the information from DreamHost in terms of the IP addresses, and reissued their warrant with different language,’ says Ghazarian.

‘That was literally the biggest issue we were fighting for – the IP addresses. So now we’re in a position where the DOJ is publicly doubling back. They issued a public statement, with a corresponding filing, saying that they were never interested in finding out IP addresses or browsing habits of users and they would gladly not pursue those things.’

‘What was particularly interesting about that was that we had evidence on the record of us reaching out to them to explain the extent of their request, specifically the IP address issue – yet they claimed that they had no idea this information would be included. So, in our follow up filing, we pointed out that they knew this, included emails and other evidence to back that up. But the bottom line was, at this point, that was a huge win for us.’

IN YOUR DEFENCE

While pulling back the request for the IP addresses was indeed a significant win for DreamHost, at the time, they still remained involved in an active dispute with the DOJ over the remaining information requested in the warrant.

‘We filed a further response to the DOJ, alerting them to the fact that even though they had retracted the request for IP addresses, there were still a lot of other issues that needed to be talked about,’ says Ghazarian.

‘Our hearing was pushed back by two days at the request of the DOJ, so I flew out to Washington DC for our rescheduled hearing and our day in court. What first stood out – it was surreal really – was the sheer amount of press in attendance. Half of the room was dedicated just to the media and it was at capacity.’

Ruling on the case, Chief Judge Robert Morin of the Superior Court of Washington DC ruled that the DOJ’s request was a valid one and enforced its motion to compel – with some major changes and safeguards to limit the exposure of sensitive and private user information. Delivering his final order, Chief Judge Morin wrote:

‘Because of the potential breadth of the government’s review in this case, the warrant in its execution may implicate otherwise innocuous and constitutionally protected activity. As the court has previously stated, while the government has the right to execute its warrant, it does not have the right to rummage through the information contained on DreamHost’s website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities. Accordingly, the court deems it appropriate to incorporate procedural safeguards to comply with First Amendment and Fourth Amendment considerations, and to prevent the government from obtaining any identifying information of innocent persons to the website DisruptJ20.’

‘We were fine with this result – to be fair, most reasonable people understand that we weren’t fighting this warrant in order to prohibit the government from obtaining information from DreamHost. At the end of the day, this was a government-issued warrant and they wanted information regarding the case pending against the protestors. We deal with hundreds of these a year, but there’s a proper way to go about these requests,’ Ghazarian explains.

‘Our issue was that the DOJ was casting an ultra-wide net, and would have obtained a tonne of data that violated internet users’ privacy.We knew at the end of the day we would have to turn over some information – we didn’t want to play hardball with that aspect. We just wanted to cut down the legal request to what we thought was reasonable – not overbroad or overreaching.’

What was interesting about the ruling though, something which surprised Ghazarian, was that the final order to turn over information and how that would be carried out was to be negotiated between DreamHost and the DOJ. Rather than having to hand over the information there and then, the negotiation process went on over the following three months, with DreamHost and the DOJ both submitting a proposed order, after which the judge made a final ruling.

‘When that ruling came in, it was one of the happiest days of my legal career. I remember sitting there, going through the order line by line. We had requested a number of protective measures because of the sensitivity of the information requested,’ says Ghazarian.

‘For most of our arguments and requests, the judge had agreed. Anything that was private information – names, addresses, phone numbers, emails – had to be redacted. So we handed over heavily redacted documents to the DOJ, who were then required to identify what information from that production they wanted to use, then identify the agents who were working on the case and with the information, then appeal to the court and justify to the judge why they needed any of the information they were requesting. Then finally, if they wanted any of the information to be unredacted, they needed to show probable cause for it.’

PROTECTING THE FUTURE

The publicity that surrounded the case brought attention to the issues inherent with the DreamHost case, and the underlying constitutional considerations will likely have the most lasting impact. While the courts’ decision to restrict the ability of both the government and law enforcement to access private user data goes some way in terms of establishing judicial guidance moving forward, whether that will stand up to further checks and tests on the power of law enforcement with respect to data remains to be seen.

‘In terms of future precedent and impacting future issues that come up under these categories, our case helps set a great foundation,’ says Ghazarian.

‘In fact, shortly after our case, Facebook had their own issues with the DOJ over DisruptJ20 and they used some of our arguments that we filed in court in their own case.’

While the likes of major companies like Facebook or historically strong advocates for privacy rights like DreamHost have both the will and resources to contest orders that are seen to overreach, clearly that isn’t the case for all companies.

‘It’s certainly important for companies to take on some of these issues and offer to fight these requests, but it does take companies having the wherewithal to recognise requests that are problematic, then having the resources and will to be able to challenge it. This also means that smaller companies will often not have the ability to fight back. So we live in an asymmetrical world where we don’t quite know everything that the government is doing with regards to requests for data, because it’s guaranteed that there are a number of these requests that never see the light of day, because the company didn’t have the ability to fight back,’ explains Bhandari.

‘If DreamHost had not stood up for its users the way that it did, then this issue quite literally would have gone under the radar. All of this subscriber information would have been turned over to the government and the timeliness with which users would be notified would have been left to the discretion of the courts. Had the government asked for a gag order to prevent DreamHost from notifying users that their data had been compromised and provided to law enforcement, then there’s a good chance that the users would never have even found out.’

That raises the question of whether a legislative response is required to enshrine rights to digital privacy and protection. While California (see boxout) has taken steps to make the process of accessing data more transparent – in particular eliminating any discretion for companies dealing with requests from law enforcement and putting the onus in the hands of the judiciary; codifying requirements and tests to justify access; and spelling out clear requirements for notifying individuals when their data has been accessed – it remains the clear exception. Other states have moved to provide updated protections in their own jurisdictions, but in the absence of an update to federal legislation, which remains outdated and stagnant, the rights of the individual when it comes to their data will continue to fall to the conscience of corporates.

There can be few legal roles in the US of as much significance and substance as White House counsel. And when Beth Nolan jettisoned film school for law school, she had no idea that her eventual career, including serving as White House counsel for President Bill Clinton – the first female to ever take on that role – would be almost the stuff films are made of.

But the path to what could be termed the ultimate general counsel role was not an obvious progression for Nolan. Eschewing private practice thanks to an interest in public policy law, she found herself as a junior attorney with the US Department of Justice (DOJ), tasked with working on government ethics.

‘I was really disappointed when I was given that assignment if I’m honest,’ she recalls. ‘The Office of Legal Counsel is known for handling the weightiest questions of executive power and executive privilege and I felt like I was going to be advising whether somebody can accept the free gift of tickets to a tennis tournament.’

But Nolan’s initial reservations turned out to be unfounded, and her burgeoning passion for ethics would go on to shape the course of her career. After four years at the DOJ, Nolan began teaching at George Washington University, where she taught constitutional law, but wrote about government ethics and lawyering.

‘That’s the specialty that was eventually of interest to President Clinton in the White House when I first started as an associate. There were scores of constitutional scholars but there weren’t that many people who really knew government ethics, and so that changed the trajectory of my career and my life,’ she reflects.

APPLIED ETHICS

Of course, at the time, as a recently tenured associate professor at George Washington, Nolan still didn’t know that. After volunteering for the Clinton Presidential Transition team, she was offered a role running the government ethics programme at the White House.

‘My original four years in the Justice Department were during the Reagan administration. There had been eight years of President Reagan, followed by four years of President Bush. So there weren’t that many Democrats who had government experience in government ethics laws, particularly some of those that had come through from the Ethics in Government Act of 1978,’ explains Nolan.

‘I was somebody who was teaching it, writing about it and had prior government experience actually doing it. So I got called to the attention of the people in the White House, went to meet with them and was offered the job.’

Putting academia to the side, Nolan was given a leave of absence to return to government. And although she’d spent the past eight years focused on government ethics – the realities of her new position would set in almost immediately.

‘I think I had a misconception that I would still have time to think about theory. I had this image of myself as being tucked away in some basement of what’s now the Eisenhower Executive Office Building working in my office on difficult issues,’ she says.

‘Instead, it’s a rodeo ride. I remember having to slow down to take a breath. When I look back at it, I remember having to tell myself – as a friend advised me to – “Stop and take a picture in your mind.” I really tried to do that.’

Nolan spent two and a half years doing conflict of interest counselling and vetting non-judicial presidential nominees and appointments, before returning to teaching – anticipating spending the rest of her career in academia. But then the former ‘vetter’ found herself on the other side of the equation.

‘In the spring of 1996, I was asked if I wanted to return to the Justice Department as the nominee for assistant attorney general for the Office of Legal Counsel. Sometime in the start of President Clinton’s second term I was nominated, and I waited a year before I got a confirmation hearing,’ she explains.

‘I had my confirmation hearing, waited a year and still hadn’t had a vote on my confirmation hearing – it was caught up in politics. I of course respected the Senate and their prerogative, so I just waited and waited.’

But in another twist of fate, as one door closed, another door opened for Nolan. In the summer of 1999, she was invited to return to the White House, this time as White House counsel.

FOLLOWING MR SMITH

The White House counsel is the chief legal adviser to the president (in their official capacity) and the White House staff. A non-statutory position, unlike the statutory standing of the attorney general role, the White House counsel is there to advise as the President wishes, meaning that each Presidential incumbent can have a counsel who fulfils different roles, depending on their relationship.

‘But in a well functioning, modern White House, I’d say there are some things that you would expect the White House counsel to always do: to serve as a liaison to the Department of Justice; to coordinate legal issues with other departments and agencies in the executive branch; to help respond to congressional inquiries and investigations; and then to provide advice and counsel to help the White House staff stay fully within legal boundaries as they execute on their policy agenda,’ explains Nolan.

Like any general counsel role, this involves handling multiple constituencies – although, in this instance, those parties are Congress (both the House of Representatives and the Senate) and other executive agencies, all of which have interests that might be incompatible in any particular moment – in a mission-driven environment.

‘The mission of the White House may change a great deal depending on who the President is, but some of the mission has been pretty consistent over time too. Ultimately, it’s to do what is seen as being in the best interests of the American people or the nation.’

And of course, not many general counsel roles involve an interview with the President of the United States!

‘That moment does stick with me, particularly because the meeting was in the main floor of the State Rooms of the White House itself, not in the West Wing,’ Nolan recalls.

‘I think if people had seen me going through the halls of the West Wing to the Oval Office to meet with the President, there might have been speculation. So instead, it was in the White House itself – which is just majestic, and you have such a sense of history.’

That sense of history is significant, not just from the perspective of the long-standing history of the institution itself, but for those who came before Nolan and laid the foundations for her to be selected and assume the role of White House counsel.

‘I came in as a successor to Chuck Ruff, certainly not as his replacement, because no one could ever have replaced him. But I’d had the opportunity to work with him, as well as John Podesta, who was the chief of staff, and with Cheryl Mills and Bruce Lindsey, who were the deputy White House counsels. And, to be frank, if Cheryl Mills hadn’t already decided that she was going to leave government, she would have gotten the White House counsel position and I wouldn’t be talking to you about this at all,’ admits Nolan.

‘Funnily enough too, being nominated as the assistant attorney general for the Office of Legal Counsel and not receiving confirmation actually helped me significantly. Had I been confirmed, then it’s likely that this opportunity would never have arisen for me, but it also meant that, as a result of that process, I had already been thoroughly vetted.’

TAKING THE REINS

Despite coming in after the impeachment proceedings against President Clinton had concluded, Nolan entered into a highly charged political atmosphere, replete with investigations alongside the day-to-day role, itself stuffed with with plenty of variety to keep her busy.

‘I remember one day where there was an urgent national security matter that we had to attend to, followed by another urgent call about the implementation of the Easter Egg Roll! Sometimes it really was just like that,’ she says.

‘What I learned was that you have to really love and embrace every kind of real issue and question that arises during your role. I was very fortunate, as I had a really great staff of lawyers who did that – it wasn’t always just down to me or my personal obligation.’

The day-to-day workload also encompassed matters of executive privilege, questions about political activity, nominations and appointments, conflicts of interest, congressional investigations, independent counsel investigations, as well as the everyday business of running a government agency. But despite the absorbing nature of the role, Nolan retained a fangirl’s appreciation of government fostered by her days as a student – and teacher – of its apparatus.

‘I had the privilege of being there at the start of the administration and then at the very end – albeit in different roles. But the machinery of government transition never failed to awe me – that at 12 noon one person is President, and at 12:01 another one is, and almost the entire White House staff changes in that minute. To someone who loves and taught constitutional law and focused on government issues in my research, there was really no better opportunity to be a witness to the way our government works than those moments of transition,’ she says.

‘[At the end of an administration] you don’t leave things. It’s not like at the Justice Department, where one administration leaves and another comes in but there’s a vast group of civil servants who continue on – there, it’s only the top layer that changes and all the documents and records and files remain. In the White House, everything goes. It’s not tossed – it goes to the National Archives and then, in many cases, to the Presidential Libraries. But it’s not in the White House – you come into empty filing cabinets and computers that have nothing on them, and a staff who largely have no idea what they’re doing.’

That means that each new administration and its staff – and subsequently its counsel – have the opportunity to shape their own role and agenda, though, in large part, the role of the White House counsel in particular will, by its very nature, be one that is as reactionary as it is prescribed.

‘I think, in the 2000s, national security matters have played a much more prominent role. I certainly had to handle my share of national security matters, but that focus on terrorism in the 21st century, I think has certainly changed the White House counsel’s job,’ says Nolan.

‘During my time in the White House, we were dealing with multiple congressional investigations. This White House is just starting to face that now, whereas in the first two years they didn’t really have to deal with that at all. That’s going to shift the role for the current White House counsel. But, in large part, I think in any general counsel position there’s certain bread and butter things you have to do. Sometimes it’s going to be more bread and butter, other times it’s a lot more cake and jam!’

I BEG YOUR…

Another potentially significant aspect of the White House counsel role – albeit one that could potentially be handled differently by every White House – is the thorny issue (even to this day) of the presidential pardon. The US Constitution allows for the President to issue pardons, or official forgiveness, to felons convicted of a federal offence. President Clinton issued a large number of pardons on his last day in office, sparking controversy.

‘We certainly handled pardons at the end of the administration in a way that was different from the way they’d been handled before, because the President really wanted to be sure that he was able to exercise his pardon power, and the rate of pardon recommendations coming out of the Justice Department was very slow. Although we tried to get people alerted that we wanted a faster process early on, things just didn’t proceed that way. We ended up in the White House reviewing some pardon applications directly, still working as closely as we could with the Justice Department,’ Nolan explains.

‘We would review their recommendations, in some cases we disagreed with their recommendations, and we’d advise the President that in some cases we agreed. We’d give the President – and also the chief of staff was involved in some of these as well – our best advice about whether or not to grant a pardon. But ultimately, it’s the President’s power – I read my copy of the Constitution and I didn’t actually see the counsel to the President being given any authority in this.’

One pardon in particular that stoked the flames of controversy, causing a federal prosecutor to be appointed to investigate its legality, was Clinton’s pardon of Marc Rich. A financier and commodities trader indicted on charges of tax evasion and trading with Iran while the country was under embargo, Rich had fled the US.

‘I did testify about that after I left the White House – the President waived any privilege with respect to that pardon. I testified at the time that I did not recommend that you grant that pardon. I didn’t see anything improper about him granting the pardon, I just, as a matter of policy, didn’t think it was a good exercise of the authority. But, as I said, I had no doubt about the question of policy on who got to make that decision,’ says Nolan.

‘Congress and the US attorney all were interested enough to investigate the exercise of the pardon power – so it wasn’t treated as a hands-off issue completely. In fact, my very first day as counsel to the President, I was delivered a subpoena from Congress to testify about pardons that the President had granted before I even became counsel. So Congress has, in other times, not been shy about investigating or reviewing the exercise of the pardon power. I never felt tested as I didn’t see anything improper. I think that the President likely has the authority – Congress can complain about it – but it will be interesting to see if there are other limitations that get explored over time.’

WHITE HOUSE TO IN-HOUSE

After leaving the White House at the change of the administration, when President Clinton handed over the proverbial keys to President Bush, Nolan chose to tread a different path. Following a career spent working within the government apparatus, she pursued a brief tenure in private practice.

‘When I left the White House, I thought to myself that I really liked being a general counsel and knew that this type of role was a strong fit for me. But I also realised that while I’d had government jobs and academic jobs, I didn’t have any experience on the private side,’ says Nolan.

‘That’s why I chose to go into private practice, so I could get that exposure to a broad range of clients and legal issues, but perhaps most importantly, I needed to get some experience on the business side.’

Nolan would join Crowell & Moring as a partner, where she spent five years working in the firm’s white-collar and securities litigation practice – a period she credits with instilling the requisite broad-based knowledge to successfully assume a commercial in-house role.

‘Gaining that experience was really valuable for me, but I felt a strong desire to be a part of a team, not just an adviser to a team, but a member of the team with ownership of the matters on which I worked,’ she explains.

‘I also wanted a job where I felt aligned with the mission, so when the opportunity to return to George Washington University as general counsel arose, I knew it was one that resonated with me. I’d been a law professor there ten years earlier and it really hit the objectives that I was looking for. I think having served as a faculty member who had been through the tenure process only enhanced my ability and service as the general counsel.’

The opportunity to come back and serve as the chief legal adviser to the university that served as the springboard for her professional life ties the career of Nolan together with a bow that is almost too perfect – perhaps the final stop in a career which has truly come full circle.

A MOMENT OF REFLECTION

Looking back, Nolan exudes a sense of pride in being the first woman to serve as White House counsel, and in having played a role in felling a professional barrier for women. Since her appointment, two more women – Harriet Miers and Kathryn Ruemmier – have served.

‘But I think the feeling I had in the moment was mostly very personal. It was a mix of pride and excitement and sober awareness of the responsibility,’ she says.

‘And then I look forward, and what I look forward to is the day where there are no more firsts, and it’s not remarkable that a woman is appointed. I think we keep moving along that path. We’re not there yet, and I had that opportunity to be a first, but I’d love it if there were no more firsts.’

Now with the benefit of experience on her side, reflecting on a life in law which has spanned the pinnacles of government, academic, private practice and in-house functions, Nolan says that there’s no secret solution for success – but did offer some sage advice for the next generation:

‘I can only say what worked for me, and the important thing to consider is that what works for one person may not work for another. What worked for me is that I followed what interested me, I tried to know myself well enough to know exactly what that is,’ she says.

‘To add to that, I think one of the really important things is to figure out how you can be yourself at your job and, if that isn’t working, you have to focus on what needs to change. I’d say sometimes that’s the job, sometimes that’s you and sometimes that’s a combination. But use disappointment as a tool to learn and grow and, perhaps most importantly, don’t forget to enjoy the ride.’

Since we published our first GC Powerlist in the United States, the series has gone from strength to strength in countries ranging from Australia to Costa Rica, and South Africa to China. We have interviewed tens of thousands of general counsel, and highlighted some of the very best GCs and in-house teams around the world. And now, in early 2019, we find ourselves back with the United States. But for the biggest legal market, where do we go from here?

Simple answer: bigger. For the first time, we have expanded the GC Powerlist to include the leading 500 GCs, representing some of the largest global corporations, to tech-savvy start-ups and everything in between. And for the first time, we have also included the leading lights in legal operations, an area which is threatening to dominate the in-house conversation for the next decade.

The full GC Powerlist is available from 22 March 2019 at legal500.com/gcpowerlist, and features interviews and insight from the pre-eminent in-house leaders in the United States, including:

‘Last year, I had sole responsibility of negotiating with over 460 law firms on a comprehensive engagement agreement. This effort was the foundation of fundamental changes in how we engage and retain law firms,’ – Alan Bryan, Walmart.

‘The wider company has profited not only by the expert legal advice delivered in a non-judgemental, collegial way, but also by the sense of common purpose that results from a true partnership between in-house lawyers and their business clients,’ – James E Ballowe Jr, E*Trade.

‘The number one piece of advice I would give an aspiring in-house lawyer is to read and listen. I need to anticipate what’s coming so that business can be ahead of the curve,’ – Susan L Lees, Allstate.

‘I deeply believe that the legal function must be an integral part of the company, rather than viewed as standing in opposition to what the company is doing,’ – Rena Hozore Reiss, Marriott International.

The Legal 500’s GC Powerlist is sponsored by Linklaters, Basham and Yerra Solutions, and is supported by the International Bar Association and the Association of Corporate Counsel.

As a billion-dollar franchise and one of the most recognisable entertainment brands in the world, the chief legal officer of The Pokémon Company International may be one of the more coveted in-house roles on the market. For the past 11 years, Don McGowan has occupied that position and has taken the brand through a plethora of groundbreaking international deals across a broad range of industries. From spearheading the legal negotiations surrounding the launch of the hugely successful Pokémon GO mobile gaming app to playing an integral part in the licensing agreements of the upcoming live-action Pokémon film, McGowan has enjoyed a diverse portfolio not always typical of the general counsel.

But these feats are only the beginning for McGowan, who, unlike most GCs, can add ‘Hollywood movie producer’ to his already impressive résumé. Between juggling his legal duties as GC for The Pokémon Company International, he is also a producer for the highly anticipated Pokémon: Detective Pikachu movie set be released in May. A modern-day renaissance man, McGowan is redefining the traditional role of GCs, showing legal expertise can be just as useful in an office as on a Hollywood movie set.

Despite it all, McGowan still manages to find time to advocate for children’s rights as a board member for the National Center for Missing & Exploited Children and teach entertainment law at the University of Washington. Heading into an eventful 2019, McGowan is showing little sign of slowing down.

I Choose You

Before moving to the bright lights of Hollywood and becoming a gaming and entertainment law luminary, McGowan began his legal career as a litigator in Quebéc, Canada. In his journey toward the multi-dimensional position he now enjoys, McGowan admits he stumbled upon more than a few lucky breaks.

‘To a certain degree my career path has been like Forrest Gump,’ McGowan admits. ‘I’ve sort of fallen repeatedly into opportunities – and you know, I’m not so blind to the idea to say the harder I work the better luck I have, but certainly there has been a fair amount of luck.’

McGowan’s career trajectory has included a few once-in-a-lifetime opportunities. This good fortune paired with a strong work ethic has been fundamental to his sustained success.

‘You pick up the skills that life requires you to have,’ he says. ‘I got to Pokémon in August 2008. Prior to that I was the lead lawyer for Xbox games, but at the time we called it Microsoft Game Studios. So, I have worked in the gaming industry and the media industry for about 15 years. Prior to that I actually worked in security and cryptography at Microsoft.’

While at Microsoft Game Studios, McGowan worked on a range of video games, handling everything from franchising to advertising to compliance issues. He also negotiated one of the first video game-based movie deals for Halo, Xbox’s flagship gaming title. While that project didn’t eventually come to fruition, the experience put him at the forefront of gaming and entertainment law, so when McGowan heard of an opening on the in-house team at The Pokémon Company International, he knew his work experience would make him the perfect fit.

Gotta Catch ‘em All

The Pokémon portfolio covers games, movies, television shows, trading cards and a staggering amount of other merchandise across a multitude of mediums. In recent times, the most well-known Pokémon export has been the runaway success of Pokémon GO – a mobile game. Employing location-based augmented reality, the app allows users to capture, battle and train Pokémon in real-world locations, in conjunction with other real-life players. To date, Pokémon GO has been downloaded over 650 million times and has established itself as a global cultural phenomenon. The success the app would become took the world by surprise, including McGowan.

‘I promise you no one gets up in the morning thinking today is the day we launch a cultural phenomenon. You don’t get up in the morning to say: “Today the world changes”.’

McGowan might be accused of hyperbole, but it’s easy to make the case that he’s being realistic: users spent $75m on the app via the Google Play store in December 2018 alone, and a staggering $262m across the year. As of the start of 2019, the app had brought in a total of $2.2bn of revenue since launching in 2016.

McGowan was instrumental in coordinating the deal between The Pokémon Company International and Pokémon GO’s development company, Niantic. Niantic was a start-up spin-off of Google, and comprised of a team of people who played key roles in the development of Google Earth and Google Maps. Transforming this technology into a safe, fun gaming experience looked like a gigantic legal risk at the time.

‘I had people coming up to me saying, “I cannot believe you are going to do a game like this – good luck, man!” Not exactly the vote of confidence you’d hope for,’ says McGowan.

‘I don’t think it is a question of being risk averse, I think it is a question of being attuned to the risks, being cognitive of them, developing your product with them in mind and figuring out the way to address them. And I think that is something that any good legal department does.’

Putting Pikachu First

For as ambitious as the project was, Pokémon GO’s life to date has been a surprisingly smooth one.

‘We launched a worldwide geolocation game with no regulatory issues,’ he says flatly.

A large part of the regulatory success of Pokémon Go can be credited towards McGowan’s focus on brand preservation. This meant ensuring issues of data privacy and child protection were at the top of the list of potential legal concerns. Pokémon has existed for over 20 years and has developed a reputation as a globally trusted children’s brand, so this was a North Star of sorts when navigating potential legal risks. This approach was founded from the position that parents identify the Pokémon brand with products created with children’s safety in mind.

‘That is a really powerful responsibility for us to have and it is something that permeates the company’s DNA,’ says McGowan.

Most of the work in this area was undertaken by himself, but supported by a small team of eight people at the time.

‘My work in these areas was particularly important, because at that time Niantic had no legal staff and so, functionally, that meant all of the legal work on clearance and all the work on the game was done through me,’ he says.

‘There is a thing I do in every sort of meeting I am having with people to discuss a new idea or a new situation – I run through a list in my mind: what are the kids’ privacy issues, what’s the advertising issue etc, and at the end of it I look at my team and I say okay – last question: what have I forgotten to think about?’

The practicalities of the app are such that the cost of getting it wrong is high. The game encourages its users – many of whom are children – to roam their neighbourhoods and cities looking for Pokémon to catch. The fact that the app’s bread and butter are the location tracking adds another complexity to the ethical considerations that must be taken into account.

‘We are obviously looked to as people who have sort of leading expertise on privacy and children’s issues and we are happy to help, and we are happy to share,’ says McGowan.

Expanding from a legal team of eight to a legal team of 19 over the past three years, McGowan acknowledges that Pokémon GO has given The Pokémon Company International the opportunity to grow. With the 2019 release of the live action motion picture, further expansion brings its own host of legal hurdles.

Time to Evolve

It was a cold evening in January when filming began for the Detective Pikachu movie. McGowan was on set and watched as Ryan Reynolds came in to voice Pikachu. He says he knew from that moment on this movie could become a really big hit.

‘That was the moment that everything became real. This is actually happening, we’re making a movie! I never thought it would happen in a million years,’ he says.

‘But sitting there, as Ryan Reynolds – who didn’t even need to be there because he was doing a voiceover part which is shot from the booth – came in, in the middle of the global promotional tour for Deadpool 2, to shoot the scenes. That’s when everything we’d all worked for really crystallised and became real.’

It was through the relationships McGowan built within Legendary Entertainment and Pokémon International, that he was able to secure the once-in-a-lifetime opportunity to work as both in-house counsel and movie producer on the same project.

As a producer, McGowan was involved in everything from advising on casting, directing and script and, while cautious to maintain a separation of ‘church and state’, McGowan was able find the perfect blend between the two skills.

From a legal standpoint, McGowan and his team did almost everything from papering up the agreement to negotiating and ironing out details of the deal between American-owned Legendary Entertainment and his Japanese parent The Pokémon Company, with movie distribution rights going to Warner Bros. McGowan had the task of bringing companies operating in two different jurisdictions – with two different cultures – together.

‘A lot of what I describe in that movie project is, you know, you have two parallel lines and every now and then somebody has to pull them together and make them meet.’ In a lot of ways, McGowan says that was his legal team’s job. Along with putting together the paperwork, McGowan’s team had to also solve adaptation issues that arose from turning a video game into a movie.

‘Detective Pikachu launched as a video game, so we had the pre-existing video game we were working with and there were all the adaptation issues that go into that as well,’ he says.

‘There were a couple of things in the first trailer, where people quite rightly pointed out that music was a rework of something from the video game or a rework from the TV show. We have to make sure the rights were cleared on all of that stuff. There is the IP protection issue, there is the marketing campaign stuff and all sorts of things. There is stuff that you will never even think of. I rely heavily on the teams at Legendary and Warner.’

The day-to-day work of putting a movie deal together is very standard. McGowan describes it as ‘usual lawyer work, it’s the same work day-in-day-out, it’s the stuff that a lawyer does, just transferred onto something that’s got a little bigger canvas.’

His team is currently handling everything from marketing campaigns to the last-minute tasks required in the context of releasing a movie.

Back to Victory Road

After rubbing shoulders with Hollywood’s elite on the red carpet for the release of the much-anticipated Detective Pikachu movie, it will be back to business as usual. Aside from the major projects, there is a surplus of daily issues that McGowan and his team work on to keep the Pokémon franchise running.

One of the major legal issues is the vast number of knock-off products that look to capitalise upon the Pikachu brand – in particular, the swathes of online retailers selling counterfeit Pokémon products.

There is also the TV show, which runs in 196 countries, although most of those licence agreements are handled through the Japan office. Still, McGowan’s team deals with shows that air in the US and EMEA. Add to that the manufacturing deals for trading cards, product testing and safety, as well as the management of the direct-to-retail business, called Pokémon Centre, which is based in the United States – and it’s not hard to see why McGowan says he never sleeps.

‘We have so many things going on, this company has so many activities: to the video game guys – we are a video game company, to the toy people – we are a toy company, to the movie people – we are a movie company, there are not a lot of other companies that can say that. But for us here in legal, we’re all of that. And some more!’

To say that disruptive technologies will be a catalyst of great change – not just in the legal profession, but wider business – is redundant. While that may sound somewhat controversial, in Silicon Valley – the heart of technological innovation – it’s perhaps more accurately an understated perspective.

But how do the in-house legal departments working closest to the action – those employed by emerging, new-era tech companies – manage to stay ahead of the curve in a way that allows them to credibly advise on legal issues at the cutting edge? How do traditional law firms ensure they are keeping in lockstep with industries undergoing technology-inspired change?

Discussion point: Is there adequate regulatory infrastructure in place for AI and disruptive technology more generally?

Often, government regulation is reactive rather than proactive. This is nearly universally true when it comes to technology at the cutting edge. The implications of new, disruptive technology are unpredictable; only once it has been released into the market can the wider implications even begin to be understood, not just by the users, but oftentimes the creators.

This can put in-house legal teams and their external firms alike in a purgatory of sorts, where they must advise on legal positions that are likely to be made obsolete by inevitable regulation. Uber, and the effect it has had on the employee/contractor demarcation, is a good example of this.

With several high-profile technology revelations promised on the horizon (AI and blockchain in particular), do regulations exist into which they might fit? Or must legal advisers adopt a ‘wait and see’ attitude, knowing that future overzealous regulators might leave a company’s product dead in the water?

THE EXTERNAL PERSPECTIVE

Kathi Vidal, managing partner – Silicon Valley, Winston & Strawn: ‘I gave a talk a few months ago at Berkeley with people who had worked for the previous White House administration and they were concerned not only that we lack the infrastructure, but that we lack an infrastructure to build the infrastructure. The current power regime is all about deregulating as opposed to regulating, so we don’t really have adequate structures in place.

We have infrastructure around unpredictable technologies. In IP we tend to divide technology into predictable and unpredictable. Unpredictable is things like pharmaceuticals – and on that side you have the FDA – you know you have to get certain things approved. On the other hand, for the predictable sciences, we don’t have that.

With AI there is increasingly a merging of the two sides. With software entering into all sorts of “things”, you move away from those things being predictable. I wonder whether we need something like the FDA, where you have to get these algorithms approved or whether something needs to be done before they can go to market. I certainly think that the blurring of the lines between predictable and unpredictable technology is a big change.’

Basil Godellas, partner and co-chair, financial services practice, Winston & Strawn: ‘With distributed ledger technology in particular, there are interesting developments at the state level that could impact the practice of corporate law. In the United States, essentially we are seeing individual states looking at how to position themselves favourably with disruptive technology. About a year ago, Delaware and Wyoming both began exploring the use of distributed ledger technology for storing corporate records, but there’s a number of large players in the industry that already provide corporate franchise and similar services that could be impacted by this technology. Will there be a bit of a push back or will the technology be embraced?

Two key examples have been cited over the last six or eight months as problems or mistakes that distributed ledger technology could have avoided. In the case of Dole Foods, the company’s corporate records did not accurately reflect the total number of shares of its outstanding stock. The judge in that case made a statement to the effect that distributed ledger technology could have prevented this mistake. The other example involved the bankruptcy of a major company. In that case, someone made a mistake and terminated the financing statement securing a billion-dollar-plus loan right before the company went into bankruptcy. So there’s been a lot of talk about using smart contracts to prevent mistakes like this. These are just some examples of where state governments are looking to use blockchain technology, specifically to facilitate corporate record keeping and secured financings. ’

THE IN-HOUSE PERSPECTIVE

Bruce Byrd, chief legal officer, AT&T Communications: ‘When it comes to the question of whether we need new regulations, I should qualify any statement I make by pointing out I work in the second-most regulated industry in America after banking. Our lawyers don’t wake up in the morning thinking we need more regulations. On the other hand, you do wonder what direction some of this might go and whether it could be a wise decision to get ahead of it, or suggest that policymakers should do something. I spend a fair bit of my time talking to the intelligence community about the security of our network, and most of that focuses on big threats to its core elements.

There’s this little thing called IoT – the Internet of Things – too. Whereas I can name on one hand the primary manufacturers of big network gear, I can’t do that with the manufacturers of IoT devices. The standards are disaggregated or nascent, and the security protocols are more questionable than they are in our core network or radio access network. So it’s hard to know the direction to go, but I’ve thought about it less in terms of what recommendations we need (although we have made some recommendations to the White House about things needing to be considered in the IoT space, but those recommendations are not around needing more regulation), but rather emphasising that we need to take advantage of AI to address a problem. In other words, whatever regulation you may come up with will pale in effectiveness in comparison to AI capabilities that can do faster threat analytics, while proving to be more malleable and flexible. That is a tough thing for policymakers to get their heads around. The real challenge is education. They don’t quite get that it’s not going to work in the usual way – they will have to allow us to use a lot of this stuff before it’s perfected if we as a nation are going to take advantage of its benefits.’

Jordan Newmark, litigation and IP counsel, Miami International Holdings: ‘The regulatory framework we have in the US isn’t technology-focused, it is fear-of-disruption-of-the-general-marketplace-focused. The result is you have areas of the world that are way ahead of us in terms of implementing things. In Bermuda, for instance, their stock exchange rules have promulgated draft rules with respect to trading tokenised products that are way ahead of where the SEC is today. We can watch experiments happen in other countries around the world.’

Scott Weber, general counsel, Lumina Networks: ‘What’s interesting when it comes to trust is there has been a shift away from traditional sources of authority and credibility. I trust Google and AT&T far more than I do the government at this point, especially right now, because they move faster – and besides, corporate social responsibility is taking heart and hold in the economics; it’s in a business’s advantage to be a good citizen. It makes sense to be a good corporate citizen and make products that don’t hurt people and protect against these liabilities, with or without regulations. Of course we still need regulations, but they are always going to be three steps behind, and even then it will be a case of putting a sticking plaster over something very large. It will be interesting to see the ways in which corporations and government can work together.’

Kathleen Jason-Moreau, general counsel, Vim: ‘I just feel like I spend all my time chasing after the sales team. Bruce, you talk about AT&T being regulated, but I’m in healthcare – $1bn to get a product to market will be considered cheap. Often sales people come to the company from a different sector and they’re just not used to the way this market works. It’s so heavily regulated. It’s an education, and you don’t want to be the lawyer who is always saying no. I’m not comfortable just being a rubber stamper, but I also don’t want to be the person who stops the deals. The most successful sales executives don’t take a no from anyone – not from a customer and certainly not from a GC. We’ve just got to figure everything out; it creates all sorts of challenges because the law changes too quickly. I study every weekend. You never want to let the CEO down.’

Discussion point: Does disruptive technology change how you expect external advisers to act?

Increasingly, firms are marketing their services on the basis of value. This is particularly so when it comes to in-house clients, for whom tightening budgets have made value a priority. With in-house teams looking to technology to streamline processes, and as businesses from every sector embrace technological innovation, questions are being asked of external partners: are you using technology to deliver more efficient services to my team? Do your lawyers have the technical knowledge required to advise my business?

THE EXTERNAL PERSPECTIVE

Kathi Vidal: ‘I had a client who invited their four top firms in and they explained what their goals were, so that the four law firms could align with that. It helped tremendously; the energy you get is great. Just to hear from the CTO about the open source issues, the cloud issues, what they’re struggling with – it energised me to think outside of the box and about which lawyers I could pull into the spectrum in terms of solving their problem. You can bring them all in at once, which is extremely empowering and makes me able to serve them better.’

THE IN-HOUSE PERSPECTIVE

Chris Ghazarian, general counsel, DreamHost: ‘I think you see a lot of firms playing catch up. You expect them to understand some of the tech behind it, but you also have firms who don’t understand that blockchain is not the same as distributed ledger, and vice versa. Last year, we had a case against the Department of Justice. Part of the reason we got into that was the automation around some of our subpoena compliance and warrant compliance. That led to discussions with GCs of big web hosting companies. It was interesting to hear about the way they incorporate these technologies into what they do in terms of legal compliance. Frankly, a lot of them don’t know what they’re talking about. Their external counsel may also not be fully aware of what’s going on, and then something bad happens. Then, and only then, they realise it is a big deal – after which, it’s often too late.’

Bruce Byrd: ‘My lawyers cover every specialty, and I expect them to be better versed than anyone we hire. So what I’m looking for in external counsel is a level of curiosity. I meet lawyers who aren’t curious about technology. Occasionally, I run into my own lawyers who joke with me about how they don’t understand tech. I don’t find it funny – if you don’t know the tech then that’s a problem. I’m not asking my lawyers to be technologists, that’s not our training, but they should know the essential elements of what we do. I have a lot of confidence in the firms we hire, but when it comes to individual lawyers, I’m seeing a slight laziness about the issue – that’s what annoys me. My outside firms need to understand this at least as well as I do. That’s my biggest challenge – making sure my outside firms are diving into the technology.’

Discussion point: What are the ethical and practical concerns with increasing reliance on AI and algorithms in business?

THE EXTERNAL PERSPECTIVE

Kathi Vidal: ‘We, as a society, don’t trust technology. Autonomous vehicles should save 20,000 lives a year, but if one person dies that’s going to make people think it isn’t safe. Then there are questions of what happens if someone hacks the software. These are very serious issues which we are going to be dealing with all the time. With software entering into all sorts of applications, you move away from those things being predictable. I certainly think that the blurring of lines between predictable and unpredictable technology is a big change.’

THE IN-HOUSE PERSPECTIVE

Jordan Newmark: ‘It’s not so much the legal dollar liability, as much as the brand liability, that’s the issue. If you’re a financial services provider and you have a robo-adviser for which the algorithm is off in a particular way, and it recommends buying something that you should have shorted, for example, that may cause a loss of a certain dollar amount for your customers – but the bigger loss is likely to come from other customers fleeing or deciding not to invest any more money with you. I tend to think that the limitations of liability for using software probably will apply the same ways they traditionally have, but I think brand liability is what will take the biggest hit.’

Robert Shives, general counsel, Shinko Electric: ‘In my view, understanding the risk to retirement plans and savings is just as important. If the AI recommends something that ruins millions of people’s lives, it is a big problem. That is not just a brand problem. It is people who have lost their life savings.’

Mary Fuller, former head of legal and chief policy officer, The Kudelski Group: ‘It won’t be long before AI invents – there is already an AI popstar in Japan. I presume AI cannot get a copyright. Likewise, unless you’re human, you cannot become an inventor on a patent. That means a lot of the regulatory and IP frameworks will ultimately be deemed inadequate. I assume that as soon as there is a clear economic interest in companies being able to own the output of AI, the laws will change, but until then we have the question of what we do. There will be no incentive to develop something that is fundamentally not patentable.’