|
|
Kennard, originally from Philadelphia, has held her position at AU since 1995. Previously, she was legal counsel for the University of Rhode Island, university counsel for Howard University, and assistant university counsel at the University of Pittsburgh. At AU, where she is a member of the President's Cabinet, she manages four other in-house attorneys as well as numerous outside counsel (described below). AU has 10,000 students, half undergraduate and half graduate, and a budget of over $300 million. She is a graduate of Boston University, Temple University Beasley School of Law, the George Washington University Law Center (for her LLM), and is President-Elect of the Washington Metropolitan Area Corporate Counsel Association.
Bisnow on Business: When and why did you come to Washington?
I didn't really like law firm work. I went back to see my mentor who had been dean of Temple Law and by then was president of the school. And he said, "Well, why don't you become a law professor." I liked the idea, so he said, "If you really want to do that, you need to specialize and get an LLM even though you're interested in international business, and the best place to do that would be in Washington." I applied to GW on his suggestion and it happened to be directly across the street from the smaller office of the Philadelphia firm. I transferred from the Philadelphia firm, and I was able to go to GW to get an LLM.
Why did you stay in DC?
While I was at GW, my parents' next-door neighbor, Bill Gray, became a congressman, and I helped him set up his new office. I found that his work was much more interesting than what was going on in the firm, and I quit the firm. But that left me with no job or income. I went to the placement office at GW and saw an ad for a position with the National Association of College and University Attorneys. I thought, maybe if I know something about higher ed administration, I'll be a better faculty member and I'll move through the faculty ranks faster. I applied for the job and got it. I ended up becoming the assistant executive director, and through that I met most of the general counsels around the country. I found it to be really interesting work. It was diverse, we covered every substantive area of law, so I thought: Why not do this kind of work permanently? I was already a member of the Pennsylvania Bar. I thought I wanted to go onto a campus, and I papered the state of Pennsylvania with my resume at every college and university. Most of them had outside counsel, except for Pitt and Penn State. I got an offer from Pitt.
But you missed DC?
Yes, so I came back to work for Howard University. But at that point I felt I wanted to be somebody's general counsel. One of my mentors suggested that I look into a job in Rhode Island for the State System of Higher Education. I did and I became the general counsel for the state colleges and universities in Rhode Island. I was there for eight years. Then one day I answered an ad in the paper for the position of GC at American in '94. I've been here for 11 years.
Of what does the AU legal department consist?
When I came, it was a newly created position. Before that my predecessor was Tony Morella, whose wife is former Maryland congresswoman Connie Morella. Tony is still on the faculty at AU's Washington College of Law. But he had a practice downtown so there really wasn't an in-house office. Since then, I have created an office and now have four attorneys on staff, plus one or two law clerks from the law school, and two administrative support people as well.
What do those four other attorneys do? Are they generalists or are their responsibilities divided?
We're all generalists, and I mean in the broadest sense of the word because one of the things that I think most people don't know is that higher education law covers soup to nuts. I mean everything. But at the same time we divide the work into specialties. For example, one of the attorneys specializes in immigration law and employment law. Another is primarily my in-house litigator and also does our international contracts and some of the other employment law work. The third attorney does transactional work. She has an LLM in tax, and also does trusts and estates. Our youngest and newest attorney is an intellectual property specialist, plus he does a fair amount of work in student affairs and athletics. In addition to being divided by substantive areas of law, they also have groups of clients that regularly work with them. For example, the lawyer who does our immigration law works with the dean of the faculty because most of our immigration cases come out of the employment of foreign faculty.
You had a bird's eye view at the National Association of College and University Attorneys. How do you think AU's structure compares with that of other colleges?
Most large universities have adopted the same structure. It's funny about our association. In the '60s, a number of labor law attorneys became in-house counsel just because student demonstrations were sort of similar to labor issues. And then it grew up from there. In some places the state attorney general would represent the school. In other states there was a full-time person employed by the state to be the in-house counsel. But over the years, most general counsel offices have come to look similar. Mine is actually somewhat different, because we do a fair amount of litigation in-house, which is unusual for a private institution.
How do you spend your time? If you were to ballpark the allocation of your activities, whether they're legal or business, what would it be?
One of the things I don't do a lot of is planning ahead, because my time is never my own. It's sort of whatever comes in that day. It could be any substantive area of law on any given day. But I'd say I spend about half of my time doing legal work, and the other half of my time doing administrative work. That is, working with the other vice presidents on things that they're trying to do, talking with them, managing the outside counsel, managing the in-house counsel.
I'm going to put aside for the moment what I guess you might call the recent unpleasantness concerning former President Ladner's situation. What are the biggest activities that come to the GC's office at American University?
We do a little bit of everything. Just to take an example, we're in the middle of a capital campaign. We have a fair number of gift agreements, and conversations with counsel for some of our donors or some of their estates. We also have old gifts, so we end up having to go to court to "cy pres" those trusts, which means seeking to open up the trusts because the purpose for which they were given no longer exists. In effect, we run a big hotel. We have residence halls, and food service contracts, we also have apartment buildings, and we own some office buildings. These projects generate lease agreements and other problems that come along with managing real estate. In addition, we have academic programs. For example today I'm working on issues for a student who is having a problem with an internship. Or we have financial aid and athletes who get injured or have other difficulties. We have a bookstore and we sell things. A counsel in a retail business might have similar issues. We have lots of regular old, basic contracts.
But also cutting-edge issues?
Yes, for example, intellectual property and information technology matters. One of the bigger issues in recent years has been illegal file sharing and downloading of music and movies. We monitor that and send out notices of violation on behalf of the Recording Industry of America. And we have unusual things. We have injuries that occur—just as GW recently had a problem with an explosion in a lab. Our biggest and largest concern has been the burial of World War I munitions by the Army in this area. For the past six years, we have been working with the Army Corps of Engineers to get that cleaned up. An incredible variety of activities!
What government regulation are you subject to that you have to deal with?
To begin with, a fair number of rules come along with the receipt of federal financial aid from the Department of Education. Most of the rules that apply to federal contractors also apply to us. We get grants and contracts from the federal government. Not as many as some research universities would have, but we still get a fair amount. We have those requirements as well. Because of the sheer number of international students, we are one of the most diverse schools in the country in terms of total number of students from various countries. There are other schools that have more international students in the total student body, but they come from fewer countries. In addition we've been working on the development of new universities in other countries, such as one in Nigeria and another in the United Arab Emirates. We also run world capital programs in over twenty-four countries. I have students who are all around the world right now, and problems happen to them as well, to which other country's laws apply. I'm a busy girl.
AU is like a small city.
Yes. In fact, we have police and every once in a while they have to pepper gas someone, or go in the residence homes and bust somebody for illegal drug use, or over consumption of alcohol.
Do you advise the AU police? None have separate counsel? You advise all the units of the university whatever they are?
Sure. For example, in questions of search and seizure: Can they search? Where can they search? How can they search?
You practically have to be a Fourth Amendment or a Constitutional law scholar. But is there a body of law known as higher education law?
Yes, there is.
What is that?
Actually, while I was working with the National Association of College and University Attorneys, I helped developed with West Publishing Company a key number system for college and universities.
What would be an example of something that is unique to higher education law?
Academic freedom, although that touches on First Amendment law.
How have you learned about the issues in the world of education? Is it through imbibing the atmosphere, or have you systematically tried to learn about some of the non-legal issues in academia?
I have systematically tried to learn. In fact, this past year I taught in the law school. I also publish and do a fair number of articles and speeches each year.
What courses and what topics?
All related to matters of higher education law. Some that include, for example, managing bulimic and anorexic students. I'm trying to give you some of the esoteric subjects.
Managing in a legal way?
Yes, like most colleges and universities, we run a health center. Athletic departments also have a fair amount of work to do when they find that they have a bulimic or anorexic athlete or student. I write about legal issues related to managing their care. We give presentations to psychological counseling centers about the duty to warn and other issues that healthcare providers on the campus need to know. I do a fair amount of work talking about non-discrimination. Usually higher education is a little ahead of the curve. We have protected classifications that are broader than even the District of Columbia, which is pretty broad. We even include transgender as a protected classification on our campus.
And you can look at policy?
One of the things that has been really wonderful about this practice is it's given me the opportunity to do that sort of thing. For example, I've been the principal investigator on my own grants that I've applied for and received. One of them was on drug and alcohol policies because the Department of Transportation had a concern about the number of college age students that were getting involved in traffic accidents. I was looking statistically of the policies related to that.
Do you get students or staff who come to you and ask for personal legal advice, and if so what do you say to them?
Yes I do. I try to refer them to another source because we only have one client, which is the university. We don't provide any personal or legal service. For example, the law school has a fair number of clinics which help anyone based on the particular area of the law that they're seeking advice on. Or I might refer them to the bar office or other attorneys in town that specialize in an area they need help in.
Do you, the five attorneys, have a special relationship with the law school?
Yes, and in part because the other four are actually alumni of it. I find that alumni give it 102% because they love the place. I'm lucky. Three of the attorneys have been with me for ten years. We have a very stable staff.
Is your work seasonal? Is it quiet in the summer, whereas around September you can't take vacation?
No, it's actually just the opposite. People tend to dump their issues on the way out the door in the summer. And so we have a fair amount of work. It actually gets quiet the first week of each semester because things are just getting going. And usually we have some problems that flare up right at the end of each semester, because there are always a couple of students who will not be graduating, or who are appealing the grade decisions, and those kinds of things.
Have you litigated?
In Rhode Island and Pittsburgh. Now that I have a my own litigator here, he does most of the work here. When I was in Rhode Island I was by myself, so I did a lot of work. In fact, because the University of Rhode Island has a school of oceanography and ships that go worldwide, I had maritime cases.
Who do you use as outside counsel?
I have a really fantastic group of outside counsel. They worry about my matters so I don't have to. So that's the best part of the whole arrangement. At Hogan & Hartson, for example, Martin Michelson and Mitch Zamoff. Mitch is a litigator. And Marty specializes in higher education law. At Ogletree Deakins, we have Steve Semler, a labor lawyer. At Morrison & Forrester, I have a husband and wife pair who are fabulous, Sherry Blount and Ed Gray, and they do all of our trademark work and other intellectual property matters. At Holland & Knight, one of our most wonderful litigators is Paul Kiernan. Then my litigator, Michelle Roberts, at Akin Gump. And last but not least is our superb zoning counsel, Maureen Dwyer, managing partner at Pillsbury Winthrop Shaw Pittman.
How do you choose them?
I don't choose by firm, I choose by the attorney. I look for the best attorney in town in that particular area. And I ask other counsel. I have stuck with these attorneys, even when they have changed firms. I look for people are willing to give me individual service and also work with me because I have seasoned attorneys who litigate in-house. I'm not interested in just turning over the whole case and letting the firm run with it. We do a fair amount in-house. We might even draft the pleadings or we do some of the depositions. I look for attorneys who are going to be willing to work with me that way.
Now, regarding the recent situation with President Ladner, can you describe your role, and what that experience was like?
Well, it is hard for me to talk about it. And it was a very difficult situation for me personally because I was hired by Ben and I care about him very much. But luckily the Board of Trustees hired outside counsel to work on their behalf. Consequently, I haven't had to do as much as you might imagine because I have really excellent outside counsel, such as Steve Ryan at Manatt and Jim Joseph at Arnold & Porter.
If you report to both the president and the board, how does that work if there happens to be a divergence of opinion?
That is a difficult problem. Actually this situation has helped us all clarify what that really means in practice. I view my job as being counsel to the corporation and its best interest, and not any individual person or office.
If the president of the university reports to the board, doesn't that mean that the board would take priority?
If they're acting in the interest of the corporation, yes.
You are President-elect of the Washington Metropolitan Area Corporate Counsel Association. Do you feel the importance of in-house counsel is coming to be recognized more?
For many years, the in-house counsel's job in the legal profession wasn't as well regarded as it is now. I'm pleased to see that there are so many in-house counsel now in for-profit as well as for non-profit corporations. That's a big step forward. We are increasingly becoming an integral part of the business, whatever the business is. That is valued not only by our client, but also the public in general.
Has your WMACCA involvement been useful?
I've been really pleased in the years I've been working with WMACCA how helpful it has been to me. For example, the short programs that we offer and the materials that we share are really very timely and helpful. The other part of it is just the opportunity to meet some of the people in and around the area, and find out about the work that they're doing. I've learned some of the more practical things about how others work with outside counsel and how they maintain attorney client privilege over materials. Sharing perspectives with others about the day-to-day practice of in-house work has been really significant for me. And, by the way, there's more commonality than there is difference at this point between the for profits and the non-profits.
Did it help you learn how to be a general counsel?
Yes. One of the nice things that WMACCA has started to do is to offer internships for law students to spend the summer in a general counsel's office to see what it is we do every day. I had no idea, even though there were a number of attorneys and judges who were friends of my family. None of them told me how to become a general counsel. I thought I had to go to a law firm and find a client and go that way. It was sort of serendipity how I ended up becoming a general counsel. We really don't spend much time teaching law students about in-house practice. We should spend a little more time to tell them there is life beyond a law firm. :)
For advertising information, please contact
advertising, or call (202) 966-1200
|
|
 |
General Counsel Weekly features exclusive interviews with leading GCs and other legal experts on issues and best practices of interest to corporate counsel.
Bisnow on Business now offers additional e-mailed Weeklies showcasing interviews with Washington's movers and talkers!
Federal IT Weekly
featuring exclusive interviews with IT leaders
Washington Women Weekly
featuring exclusive interviews with the region's most successful women
Washington People Weekly
featuring exclusive interviews with the most fascinating figures of the region
Real Estate Weekly
featuring exclusive
interviews with the region's commercial real estate leaders
Entrepreneur Weekly
featuring local leaders in entrepreneurship
Subscriptions are
free-of-charge at www.bisnow.com.
And watch this space as additional e-mailed Weeklies are introduced.
|
|
