Q: You co-teach a seminar called ‘Global Inside Counsel’ with Stephen Cutler, the Executive Vice Chairman and Executive Vice President of JP Morgan Chase, at Columbia Law School. You’ve also taught the course at Harvard Law School and Yale Law school in the past. Why is it important to offer a course like this? I’ve heard the phrase thrown around that private lawyers today do not practice international law – they practice law internationally. How important is it for today’s young lawyers to have an international perspective as they prepare to enter the marketplace?
A: I think that one of the things we were intrigued by and prompted us to offer this course was that we perceived that the practice of law is a little out ahead of legal education, in the sense that if you practice in-house, for example for a large business today, you are likely going to be doing a lot of cross-border, international matters. So far, from our perception, there aren’t a lot of opportunities in law school to be able to study that – to be able to learn the environment, the context in which many of the people in law school will be practicing. But, [law schools] haven’t really yet fostered too much of an atmosphere to support that.
Q: You taught this course with [former General Counsel of General Electric] Benjamin W. Heineman in the past at Harvard Law School. How has thinking with respect to the role of the General Counsel within a corporation evolved from the time you began practicing to where you sit now as GC for E&Y? I suspect that your job sees you tasked not only with managing the legal affairs of E&Y, but also handling corporate crises and developing business strategies as well. Could you speak to the development of the institutional role of the GC within the corporation over time?
A: I should say, I taught a different course with Ben Heineman about the role of the [General Counsel] – it was focused specifically on that issue. It didn’t have the international dimension to it. During Ben’s era, the job really transformed itself. By the time I came into the role, he had really established [the job] in many ways for what it was. I would say, what has evolved during my period is that it has increasingly become a very international job. This was true in Ben’s time, but the technology has made it so much more practical to supervise a global workforce in a meaningful way. Businesses are increasingly global and I would also say that has become more likely for the General Counsel to be looked to as the crisis manager. I think this was beginning to be true during Ben’s era, but it is increasingly true now. Now, you get a lot more people with backgrounds in litigation and regulatory matters, things that prepare you for those issues.
Q: E&Y has over 230,000 employees in 150 countries around the world. Presumably, the legal issues that are implicated in your company’s operations are innumerable. In a global setting characterized by such dynamism in the law, how do you – in your role as GC – keep yourself appraised of the most critical regulatory developments? Is it a matter of triage? How much delegation of responsibility is too much delegation?
A: I think the key for any General Counsel – and it’s not at all unique to my role – is to identify the priority matters that you need to be involved in. You always want to have a list of the top five, ten, fifteen matters that are facing the organization you represent. Those are really want you want to concentrate a lot of your time on. It could be a piece of litigation, it could be a regulatory investigation, it could be a merger, it could just be a very high-profile personnel matter – it could be any number of things. That’s what you really need to be focusing in on.
Q: As General Counsel for Bear Stearns from 2004 – 2008, you helped to navigate that organization through a challenging and unprecedented set of circumstances. The aftermath of the Great Recession saw the rise of a distinct attitude towards the regulation of banks and financial services companies. We now live in a time where, unexpectedly, the specter of protectionism and tit-for-tat regulation looms over businesses in the international scene. How would you describe the current global regulatory environment? What are the challenges of operating in this type of atmosphere?
A: I’ve said that one of the interesting trends we are seeing right now is that businesses are increasingly integrated and increasingly global and they want to operate in a borderless, frictionless – or at least as borderless and frictionless as possible – world. Yet, we’ve seen some trends in governments – whether it is protectionism or Brexit – to be increasingly inward looking and national. And that creates tension. It is difficult, or more difficult, with these additional challenges in operating a global business when you have these centrifugal forces that are pulling you into the national context when your business itself is pushing you in a different direction. So that’s a big challenge for all businesses right now.
Q: Two defining features of the Trump Administration seem to be its absolute inability to express a consistent, nuanced viewpoint on more than a handful of issues and a reactionary skepticism regarding the benefits of bilateral and multilateral cooperation with other nations. This combination would seem like a major source of anxiety for any GC helping a major multinational corporation operate – the uncertainty cannot make your any job easier. Is my intuition correct in this sense? Or have regulators like the DOJ and SEC been fairly insulated from the chaos and confusion within the Executive Branch?
A: I think every Administration sets a tone that is picked up by the regulatory agencies, the law enforcement agencies that are operating in their jurisdiction. It can be very direct – making appointments to certain positions. It can be a philosophy – I think every Administration comes in with an impact in that way and the Trump Administration is no exception. In some respects, there is a pretty well-defined approach and philosophy and you see it. And, it’s early days. But you can see a personality coming out of this government that is pretty definable.
Q: Part of the job of being General Counsel involves being predictive as to where future legal threats to the corporation might come from. How does one be predictive and proactive in managing risk when the scale of their company’s operations is so massive and the pace of regulatory action can be so reactive and unpredictable?
A: One of the things you are constantly in a position of doing is evaluating what your most significant risks are. This is the process of identifying [those risks], the process of evaluating those risks, addressing them. It’s a process of staying very current [with respect to] what those major risks are for your profession, for your industry, for your country and you have to continue to educate yourself because these are not static. They evolve and change. Yesterday’s top risk will not be today’s top risk, and so you need to stay current. It is a big part of the job being sensitive to risk.
Q: I’m interested in hearing your thoughts on the desirability of imposing uniform corporate standards with respect to compliance and oversight when operating in a multitude of jurisdictions that have widely divergent legal rules and cultural practices. Is there any formula for reconciling the need to impose global coherence with the imperative of respecting local norms?
A: This is really one of the major themes of [my Global Inside Counsel] course – how do you reconcile your global standards and laws with your local law and custom? And that’s a fascinating issue. It’s a fascinating challenge. It’s very contextual, as [my students are learning]. Each week we have a different vignette or case study, and there is no formula for addressing these problems. However, very often you need to find that right balance between where you will have a global standard that will apply and where you often have to sometimes compromise that or amend that in order to address a local situation when there is either a law, custom, or some other salient reason where you need to adapt. So it’s always a balance, trying to strike that. It’s one of the most interesting parts of the job and one of the key reasons we are teaching this course.
Q: In close, I wonder if you might offer some words of sage wisdom for students or young lawyers looking to practice law internationally in the private sector down the road. Is there a piece of wisdom you wish someone had given you 10 years ago regarding the challenges of your current job? What trends do you see developing in the marketplace over the next 10 years and what skills should inexperienced practitioners acquire in order to best position themselves for success?
A: I always say that there is no formula for these things. A diversity of experiences is good; trying different things. I always give the advice “do not try to over-plan or engineer your career, because life is opportunistic”. Things will come to you and if you are working towards some formula, you may miss those opportunities. But I do think it is worth trying different things. People often benefit from some years in a law firm learning their craft. Government can be an extremely good experience. For people in-house, this can be something further down the line in your career that makes sense. So, there are a variety of ways to get that experience. The one commonality I see is that people who are often successful have a diversity of opportunities and experiences that they are able to draw upon professionally.
Q: Thank you for your time Mr. Solender. Here’s hoping you continue to offer this course at Columbia Law School for many years to come.
Joshua Koenig is a 2L student at Columbia Law School and a graduate of McGill University. He is currently enrolled in Michael Solender and Stephen Cutler’s “Global Inside Counsel” course at CLS and is working under the supervision of UNICEF’s ‘General Counsel’ at their Office of the Legal Advisor.