Fluid Regulatory Regime, Industry Consolidation, and Privacy Issues Drive High Demand for Healthcare Legal Counsel

Vol. 38 • No. 12 • December 2019

In This Issue

An industry-wide look at healthcare law focusing on recent changes that affect how firms must now strategize this critical practice area...... Page 1

A year-end round-up of legal industry trends, from hot practice areas like immigration to headline-grabbing discrimination suits against major firms...... Page 3

Tom Clay takes a hard look at partner productivity as a basis on which to usefully redefine and strategically improve law firm productivity...... Page 5

Patrick McKenna discusses esports, a profitable niche area that promises long-term sustainable growth...... Page 10

John Smock identifies management strategies that are truly time-tested, having proven consistently successful from decade to decade...... Page 13

At Weinberg Gonser, firm founder Tye Gonser is setting new leadership standards to achieve optimal morale and superior client relations...... Back Page

State of the Practice … Fluid Regulatory Regime, Industry Consolidation, and Privacy Issues Drive High Demand for Healthcare Legal Counsel

Ask healthcare lawyers what’s keeping them experience in issues that arise in all three of busy these days and they may simply reply, those categories can position themselves at a “Everything, all the time.” But when pressed, distinct advantage within the bustling mar- they’ll likely narrow down the scope of most ket. The problem is, those attorneys are too of the work to three areas: the ever-evolving few and far between. regulatory framework, consolidation of the healthcare industry, and privacy and data security issues, particularly privacy centering around the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Continued on page 2

With client demand high and healthcare lawyers’ workloads heavy, law firms that can find attorneys who bring expertise and Cari Haper, a healthcare lawyer and chair transaction,” Haper says, adding that the firm of the Dayton, OH office of Cleveland-based is seeking new hires to build its ranks in this Thompson Hine, does possess the regulatory/ area. “The knowledge of the healthcare laws consolidation/privacy and data security three- and the ability to understand a transaction pronged skill set, and she acknowledges that are both very valuable.” it’s hard to find others who even have experience in two of those areas. Tracking Changes “Many healthcare lawyers have a solid understanding of healthcare laws but they don’t really know how to do business Perhaps no area in the legal profession deals and think creatively to accomplish a requires attorneys to monitor, research, and analyze changes in the relevant laws and regulations as much as the healthcare space does. “Staying abreast of all the changes is not for the faint of heart,” says Kelly Hagen, the co- chair of the healthcare group at Portland, OR-based Schwabe Williamson & Wyatt, which has six core attorneys but some 25 across various disciplines provide legal exper- Copyright © 2019 CCH Incorporated. tise and support. “If you don’t like learning All Rights Reserved. new things, this isn’t your area of practice.” OF COUNSEL (ISSN 0730-3815) is published monthly by Wolters Kluwer, 28 Liberty Street, New York, In Nashville—known by many as The NY 10005. Subscription rate, $1,230 for one year; single Healthcare Industry Capital because it’s the issues cost $154 (except OF COUNSEL 700 ANNUAL SURVEY). To subscribe, call 1-800-638-8437. For cus- home to the headquarters of many hospitals tomer service, call 1-800-234-1660. Address correspon- and other healthcare-related organizations— dence to OF COUNSEL, 28 Liberty Street, New York, attorney Timothy Gary concurs, paraphras- NY 10005. Send address changes to OF COUNSEL, ing the famous words of the Greek philoso- Wolters Kluwer, Distribution Center, 7201 McKinney pher Heraclitus. “I’ve been practicing law in Circle, Frederick, MD 21704. this area for 27 years and the one constant This material may not be used, published, broadcast, has been change,” says Gary, an attorney in rewritten, copied, redistributed, or used to create any derivative works without prior written permission the Nashville office of Detroit’s Dickinson from the publisher. For information on how to obtain Wright and the CEO of the healthcare-related permission to reproduce content, please go to the government relations firm Crux Strategies. Wolters Kluwer Web site at www.WoltersKluwerLR. “We spend time and expect to spend a lot com/policies/permissions-reprints-and-licensing. more time in the next couple of years dealing For customized article reprints, please contact Wright’s Media at 1-877-652-5295 with the changes.” or go to the Wright’s Media Web site at www.wrightsmedia.com. And sometimes those changes don’t mani- This publication is designed to provide accurate fest where you’d expect them to. “You find and authoritative information in regard to the sub- important regulations in the strangest of ject matter covered. It is sold with the understand- places; usually somebody somewhere gets ing that the publisher is not engaged in rendering legal, accounting, or other professional services. wind of the fact that the Stark Law changes If legal advice or other professional assistance is are in the physician fee rules so you better required, the services of a competent professional go look at that,” Hagen says, referring to the person should be sought. —From a Declaration of Principles jointly adopted statute named after Rep. Pete Stark (D-CA) by a committee of the American Bar Association who sponsored the initial bill. It’s actually a and a Committee of Publishers and Associations. set laws that prohibit physician self-referral, www.WoltersKluwerLR.com Continued on page 18

2 Of Counsel, December 2019 From the Editors

Taylor’s Perspective … 2019: The Year that Was in the Ever-Dynamic Legal Profession

As the year comes to a close, it’s natural partner Deborah Willig. “We know … for us to look forward into what 2020 might that, from time to time, we need to evaluate bring, and it’s going to be a big year. We’ve the way our firm operates and ensure that we got the Olympics in Tokyo this summer; a continue to be a workplace with a culture that few more months of hearing the currently talented people want to join.” red-hot dismissive (and witty) term hurled at members of an older generation by members In February, in these pages, I asked of a younger generation, “Okay, Boomer”; sources to weigh in on occupational burn- and oh yes, we have a presidential campaign out, something that seems to set in more to look forward to or perhaps “endure” is a during the second month of the year—after more appropriate word. the holidays and start of a new year have passed—than in other months. James Dolan, But before we do, let’s take a gaze backward a psychotherapist in Dallas who counsels at the events of 2019. In January, more than many attorneys, recommended that lawyers 100 women took office in the 116th Congress, embrace outside interests to ward off the in large part because of the 2018 electoral blue erosion of on-the-job motivation. “Have an wave. Robert Mueller concluded his report activity that you’re passionate about,” he with mixed results, climate change–related said. “It’s important to have enough activi- fires and weather events wreaked havoc, and ties in your life that are replenishing rather a certain US–Ukraine phone call took center than depleting.” stage. In the first half of the year, we saw and In the legal profession, 2019 began with reported on a rise in activity in two practice high expectations for many law firms. In areas, government relations work and immi- January, we looked into those expectations gration law. At Boston’s Mintz Levin, one of by reporting on the New Year’s resolutions the nation’s preeminent immigration lawyers, of several law firm leaders and industry Susan Cohen, said the “current environment insiders. Chief among them was the vow to is driving tremendous interest” in this field work more diligently on associate hiring and of law, including from young lawyers who retention. increasingly seek out volunteer opportunities. “In my 34 years of practicing in this area, I “Searching for the best and brightest attor- have never seen as high an interest in immi- neys to add to our team has been and will con- gration law as I have in the last two years,” she tinue to be a priority for [Philadelphia-based] said. “I’ve never had so many people want to Willig, Williams & Davidson,” said managing volunteer.”

Of Counsel, Vol. 38, No. 12 3 In May, we ran an article about law firms’ In September, we published our annual Of increased reliance on outside recruiters to Counsel 700 Survey of the Nation’s Largest help fill their lawyer ranks in a very com- Law Firms. In it, we reported on the competi- petitive market for talent, particularly for tive intelligence company Decipher, which associate attorneys. The profession contin- helps law firms hire the right laterals—those ues to experience an associate shortage as who fit the culture and will stick around for more and more law graduates choose other awhile. Seeing a demand to help improve career paths outside of the law firm setting. retention rates and stop or at least slow down “They don’t want law firm life,” said Natasha the steady drain of talent and resources, Innocenti, a 23-year veteran of legal recruit- Decipher uses sophisticated techniques to ing and a partner in the San Francisco office vet lateral candidates, uncovering every stone of the recruitment firm Mlegal. “And, more to find all the dirt on a candidate. Also, the companies are hiring law grads for in-house national company gathers intelligence not positions.” just to identify the warts of a potential lawyer-on-the-move but also behavioral patterns and tendencies to see if a particular candidate Big News Shakes the Profession would fit and thrive or disrupt and fail at his or her new law firm.

In one of the profession’s biggest news Last month, we looked at law firm stories of the year, six female attorneys filed culture—the good, the bad, and the ugly. One a $200 million lawsuit against the global firm that sources pointed to as an example of firm Jones Day, claiming pervasive sexual a partnership with a positive and collaborative harassment and gender discrimination in work environment was Chicago-based Jenner compensation. “Jones Day’s fraternity cul- & Block, which also elected co-managing ture presents female attorneys at Jones Day partners, Katya Jestin and Randy Mehrberg, with an unpalatable choice: Participate in a who will share the leadership role beginning in culture that is at best inhospitable to women January. Jestin offered several reasons the firm and at worst openly misogynistic or forego has gained a stellar reputation for its upbeat any hope of success at the firm,” the women culture. “One of the reasons that the spirit asserted in the complaint. Subsequently, de corps exists here is our dedication and tre- the firm defended the partnership and mendous reputation for our pro bono service,” attacked the claims only to have separate she says. “We all have that in common, and allegations arising from its London office we believe in that dimension of meaning and in October about several incidents of sexual the practice of law. It creates an environment inappropriateness. where [the attorneys] can really thrive.”

We reported good news, however, over the Of course, these were just some of the news summer. With the election at Wilmington, and trends we covered in 2019, and we were DE-based Richards, Layton & Finger, able to report on these stories because of the Doneene Damon became the first woman many sources who give us valuable informa- to serve as president of the firm and the first tion. As we approach the holidays and head African American in such a leadership role into a new year, we encourage readers to con- at any large Delaware firm. Her two primary tinue to reach out to us with news, either that goals: Make sure associates get the across-the- which occurs within their offices or outside board support they need to grow their prac- on the broad legal landscape. Happy holi- tice and succeed and place a lot of emphasis days, everyone! ■ on wellness initiatives to help attorneys take care of themselves physically, mentally, and emotionally. —Steven T. Taylor

4 Of Counsel, December 2019 Moving the Middle: Optimizing Leadership Time to Improve Productivity

Today’s stagnant or shrinking legal ser- This is where law firms may go wrong. vices market puts significant pressure on law Even if they are currently doing well firm leaders at all levels to find new ways to economically, most firms have defined pro- increase productivity and build firm value. ductivity in a very narrow way, and they In my work advising law firms, regardless may suffer as marketplace realities of the type of project I’m working on, there and dynamics continue to change is always some linkage to the objective of substantially. increased productivity. Partner productivity should be defined It, however, is important to define produc- as more than just the ability to pro- tivity in the context of a law firm partnership. duce working attorney fee receipts or to C. Jackson Grayson, Jr., Chairman of the generate business. To correctly under- American Productivity Center in Houston, stand the input factor, firms should con- said: “Productivity is nothing more than a sider other value-adding contributions like mathematical ratio. It’s output over input, excellent leadership, superior client ser- that simple. A company, however, has to sup- vice, skill and knowledge sharing, service ply the content of the words input and out- innovations and efficiencies among oth- put. And if you define your input and output ers, all of which can truly add value to the the wrong way, you get into trouble.” partnership.

Editor-in-Chief Wolters Kluwer LARRY SMITH JOANNE MITCHELL-GEORGE Phone 201-854-3288 Editorial Director Fax 201-861-6728 MEGAN ROSEN Senior Developmental Editor Senior Editor STEVEN T. TAYLOR Editorial Office Phone 503-245-3209 2700 Lake Cook Road Riverwoods, IL 60015 PATRICK J. McKENNA Phone: 847-267-7000 Contributing Editor Fax: 847-267-2945

Of Counsel, Vol. 38, No. 12 5 Spending Time with the Right In any law firm, the allocation of partners People along these lines will result in a bell curve distribution. One could argue the steepness of flatness of the curve, but not the probabil- Most managing partners recognize the ity that there will be a bell curve of partner critical need to spend time with lawyers in contributions. the firm. They, however, are often frustrated with not having enough time to do so. In my experience, this often is because they are mis- Partner Contributions allocating their time. They are not spending enough time with the right people to get the results they want. The key issue to consider is that two-thirds of partners are Solid Citizens and one-third The secret to achieving far more overall represent the other four categories combined. productivity is to focus leaders’ time on the This is where the math comes in. When you majority of the firm’s lawyers—its ‘Solid start thinking about it in numeric terms, it’s Citizens.’ Reallocating leadership time in this clear that incremental increases in contri- way will result in a vastly improved return on bution from the largest population, i.e., the the firm’s leadership investment. The proof Solid Citizens, will result in a greater increase of this premise is simply in the math, as you in overall productivity than a larger percent- will see. age increase by the other one-third.

The partners in a firm can be categorized using the following definitions:

• Stars: These are partners who have dem- 34% 34% onstrated over a long period of time that they can add clear value to the firm, bene- fitting everyone. Traditionally, firms have 11% 11% defined their stars as those who originate Lost Under- Near Stars new business or generate large working Causes Performers Solid Citizens Stars attorney fee receipts, but some firms are beginning to recognize that other objec- tively measured contributions can also The bell curve represents the totality of qualify a partner as a Star. partner contributions including billable • Near Stars: These are the lawyers who hours, marketing and business development, are on their way to becoming stars and and all “value adding” activities. The overall will need guidance and encouragement to objective is to increase total partner contri- achieve their full potential. butions and improve productivity, thereby • Solid Citizens: These are typically good shifting the midpoint of the bell curve to the lawyers, good people and those who right. don’t make waves. Most of the time they meet minimum economic performance I often ask law firm leaders to comment on expectations. how they think they should allocate their time • Underperformers: This category can have among the five categories of partners to affect two different definitions—those who, for the greatest return on investment. Below is a some reason, are in decline and those who sample of their responses. As you can see, have not yet hit the productivity levels there is a wide divergence of views, except expected of partners. with respect to Lost Causes. The responses as • Lost Causes: These are folks who should to allocation of leadership time, in percentage not remain with the law firm. ranges, were:

6 Of Counsel, December 2019 Stars 10%-75% way up. They will need additional resources,

Near Stars 15%-75% encouragement, and guidance, which might include a coach, specialized business develop- Solid Citizens 5%-60% ment or leadership training, time to devote to Underperformers 5%-75% referral sources, or positions on key commit- Lost Causes 0%-15% tees or task forces. Like Stars, they are intrin- 0% 20% 40% 60% 80% 100% sically motivated and usually don’t require enormous amounts of time from firm leaders. So how should a law firm leader allocate his or her time most effectively to get the best results from each of the five partner types? Lost Causes

Stars When there are Lost Causes among your partners, if they are clearly beyond help, then recognize it and remove them from the Stars want three things from their leaders. firm. For all concerned, this should be done They are: quickly and humanely but with rigor so the pain is not prolonged. Dragging out the pro- • Recognition. This typically is something cess is energy sapping and counter-productive that can be done in a very short amount and it takes away from more productive uses of time with a pat on the back, but it is of leadership time. critical to the psyche of stars. Most leaders readily understand this. • The availability of resources and/or Underperformers removal of roadblocks so they can fully achieve their goals. Stars abhor anything that keeps them from doing so. Most Where there is a clear record of underper- leaders get this as well. formance over time, leaders should work with • Finally, Stars want to know that firm lead- the underperformer to develop an agreed- ership is dealing efficiently and effectively upon plan for improvement over the course with Lost Causes and Underperformers. of no more than 18 to 24 months. The plan They simply cannot stand seeing their should have milestones, benchmarks, and colleagues underperform or, as they put metrics related to the specifics of the under- it, “act like 9 to 5-ers.” If they know these performance at issue. Time to develop the folks are being dealt with, they are far less plan should not be onerous and may be done apt to become dis-incentivized. in steps with practice leaders, office managing partners, and final approval by the managing The reality is law firm leaders don’t need partner. These efforts need to be reinforced to spend much time with Stars and, frankly, with periodic check-ins by leaders with the Stars don’t have the time to spend with firm underperformer. leaders. They just want to make sure that the firm is attending to the three things that matter most to them. Solid Citizens

Near Stars The greatest investment of leadership time needs to be spent with Solid Citizens. Too often this group goes unchallenged on Near Stars are essentially the same as Stars their contributions to the firm, or they are except they are likely younger and on their neglected because they are good people, good

Of Counsel, Vol. 38, No. 12 7 lawyers, and generally meet their obligations. A comparison of the total performance They don’t make waves. They don’t complain. increases for each of the five partner groups Sound familiar? clearly shows that a rigorous focus on Solid Citizens will almost always yield greater However, here is where the math emerges value gains than will be realized by spend- again. ing additional time with the other groups. It should also be noted that the second great- In a hypothetical firm with 100 partners, est potential gains come from Near Stars assuming a bell curve distribution of part- who are generally self-motivated and do not ner types, approximately 68 partners would need a great deal of leadership attention to be Solid Citizens. If the firm can achieve a thrive. 2-percent average increase (which is a low estimate) in each Solid Citizen’s contribution however defined, the result will be 136 Moving the Middle more percentage points of contribution to the firm. The criticism most often leveled at Solid In contrast, there is less potential for perfor- Citizens by firm leaders is that they do not mance improvement in the other four groups “act like owners.” They meet their billable represented by a hypothetical 32 partners. hour and revenue goals—but do little more. Stars are essentially “maxed out” in terms of This may be driven by complacency, or per- contributions and an expectation that they haps from a failure of the firm to articulate its do much more may be unrealistic. Near stars expectations for partners and then hold them might show big performance gains, but they accountable. are a relatively small group. Regardless of the reasons, firm leaders can Underperformers have a lot of room for intervene effectively with this group–because improvement in theory, but typically the Solid Citizens have the capability to improve best possible scenario for underperform- with the right guidance and encouragement. ers is simply getting to solid citizenship. To move Solid Citizens up the bell curve, firm They are unlikely to ever become Stars. leaders need to: Removing Lost Causes will decrease whatever contributions they might be making • Ask each partner what he/she can do to to the firm although that is unlikely to be add greater value to the firm significant. • Find out what motivates each person • Require short, specific individual devel- The relative increases in contribution opment plans by each partner type might look like this • Have regular, scheduled check-ins to example: monitor progress

Partners/100 Average Performance Increase Total Increase Solid Citizens 68 2% 136 Return on investment 136 Stars 5 1% 5 Near Stars 11 5% 55 Underperformers 11 2% 22 Lost Causes 5 0% 0 Return on investment 82

8 Of Counsel, December 2019 • Provide honest feedback on progress invariably their number one response is: ‘More toward plan goals time.’ And yet time is an inelastic resource. • Offer training where appropriate As leaders struggle to use their limited time Too often firms try to address this prob- to the greatest advantage, it is important to lem with financial incentives through the optimize the value of their ‘people time.’ If compensation system. This is nothing more leaders spend their time on the cohort of than a bribe and a short-term one at that. partners with the highest potential for incre- Effective motivators, especially in law firms, mental improvement, the firm will realize the are more likely to be achievement, recogni- highest return on its leadership investment. tion, the quality of the work, responsibility, It’s just the math. ■ advancement, and growth. Leaders need to articulate to Solid Citizens how these things might be achieved and help them toward —Thomas S. Clay those goals. Thomas S. Clay is a principal with management consultancy Altman Weil, Inc. He Return on Investment heads complex consulting assignments in strategic planning, law firm management and organization and law firm mergers and acquisi- When law firm leaders are asked what they tions. Contact Mr. Clay at tsclay@altmanweil. would need in order to be more effective, com.

Of Counsel, Vol. 38, No. 12 9 Esports Practice: A Lucrative Micro-Niche

Esports has become a specialized area not forget potential investors and private of opportunity over the last few years. The equities. stunning rise in the popularity of particular teams of video gamers competing against one Not to be late to the party, we now even another in front of a live and broadcast audi- have a few Universities introducing an ence is becoming big business and another e-sports program for their 2019 fall semester potentially lucrative micro-niche for innova- that includes courses about coaching esports tive law firms. teams, marketing video games and managing the business side of gaming. Ohio State In February 2015, Roger Quiles, head University will offer a new major: a bach- of Quiles Law, an esports and sports law elor of sciences in game design and esports, firm in New York City, launched the first while the University of California at Irvine Esports blog. Then in July 2016, he pub- and Lambton College in Sarnia, Ontario are lished “The Little Legal Handbook for introducing esports certificate programs. Esports Teams - an online publication designed to help out players and organiza- According to those familiar with this tion owners on matters that include: how area, what makes this robust, rapidly emerg- to draft a player contract, how to draft a ing esports niche especially complicated sponsorship agreement and how to protect and intriguing is that it is still very much a intellectual property.” ‘Wild West’ system without any established norms and patterns. The structure of teams In January of 2017, Seattle-based lawyer and leagues, the formation of partnerships, Bryce Blum launched his esports-only law and any kind of ‘best practices’ for those firm, Electronic Sports and Gaming Law. interested in the business are all still being Blum, an ESPN contributor, first began to created. make his name in esports in early 2015 by posting legal opinions and articles on the The esports industry brought in $865.1 subject. million in revenue in 2018, according to Newzoo (market researchers), and expected Last summer, an young associate, practic- to reach $1.1 billion this year, based on their ing employment and labor law, inspired the projections. With a growth rate of 22.3 per- leadership at the McNees Wallace firm to cent year over year, Newzoo predicts that the announce the launch of their esports prac- industry will rake in $1.79 billion in revenue tice group. Then a few weeks back, Sheppard by 2022. Mullin announced they were launching a similar group with about 20 attorneys. People Pay Big Bucks to See For the uninformed, esports law is an amal- Esports gamation of multiple disciplines—labor and employment, contracts, endorsements, sponsorships, gaming, intellectual property, and The industry can already boast of having a all the things that come with those arrange- passionate, global, highly engaged audience. ments. Potential clients are likely to include What is especially amazing is the way esports individual gamers, but also the game publish- are moving into stadiums built for popular ers, organizations building potential leagues, sports like the NHL or NBA. Over 20,000 sports competition venues, media, entertain- people shelled out at least $60 apiece to see ment, and advertising companies, and let’s the two-day Overwatch League Final event

10 Of Counsel, December 2019 at the Barclays Center last July. On Stubhub, February, the Overwatch League announced a ticket resale portal, demand for tickets was that it has added Coca-Cola as its official high enough that a single ticket would set you beverage partner ahead of the 2019 season. back at least $195. These are ticket prices that Coca-Cola joins Toyota, T-Mobile, HP and are more often associated with major musical Intel as some of the major brands that this acts or major sporting events, not for those particular league has signed. Although terms watching video games. haven’t been disclosed, the multiyear deal will give the beverage powerhouse exclusiv- Citigroup analysts cite studies indicating ity with all 20 teams in the league and events that 143 million people watch esports at least across the collegiate and amateur levels as once a month. Their study estimated a 15% well. compounded annual growth rate in viewers for the forseeable future. Deloittes is fore- casting an estimated audience of 600 million And Big Media Wants In globally by next year.

Meanwhile CNBC reported that the finals Like traditional sports, esports is premium of the League of Legends tournament, held in content, and media companies and advertis- South Korea in November, attracted an audi- ers are both willing to pay for the ability to ence of 100 million—only 3 million fewer tap into these markets. For the media, Esports than US viewers of the 2018 Super Bowl. offers partners and sponsors access to an extremely valuable and otherwise difficult- to-reach millennial demographic; a group not The Teams Are Encouraging Big nearly as impacted by traditional television Investors and advertising. Twitch, a video game streaming service In October, Cloud9 became the world’s owned by Amazon, was the first to see the most valuable esports team after raising $50 value of the Overwatch League, offering $90 million in funding. Meanwhile, a report in million for digital rights to the first two sea- Forbes estimated that a total of nine esports sons. Big media companies were a bit late to teams worldwide are worth at least $100 mil- the game. Then Disney saw the dollar signs lion. As one might naturally expect, those being thrown around in esports and wanted numbers have attracted the attention of some a part of the action. By last July, Disney and big-time investors, like Mark Cuban and ESPN announced that the Overwatch League traditional sports mogul Robert Kraft, who playoffs and finals would be carried on chan- owns the New England Patriots, and paid nels from Disney XD to ABC. This was a $20 million to own the Boston-based team in big validation for esports, which have always Activision Blizzard’s Overwatch League prior operated on fringe media platforms. to its launch last year. Even basketball leg- end Michael Jordan, joined in with an equity ESPN has reported that HP paid $17 mil- involvement in a group owning Team Liquid. lion and Intel paid $10 million for sponsorship deals with Overwatch League. Sour Patch Kids, T-Mobile, and Toyota have also The Biggest Advertisers Want a signed undisclosed sponsorship deals. If these Piece of This Action companies are willing to spend money on advertising with leagues, they’ll certainly be willing to pay a premium for advertising dur- The industry is generating approximately ing esports events on TV. And of course that $1.5 billion annually from sponsorships and is what Disney sees as the upside of their deal advertising. By way of example, in early with Overwatch League.

Of Counsel, Vol. 38, No. 12 11 Esports May Just Be Getting Esports is here to stay and, given the size Traction of the business this early there’s no tell- ing how big it will get—which is great news for the industry’s leader, Activision The future of esports may just be get- Blizzard. ■ ting started. Overwatch League has demon- strated how big the business can be, and now Activision Blizzard will be the first company —Patrick J. McKenna to see how big it can make esports grow. Management has said it wants to expand Patrick J. McKenna (patrickmckenna.com) the league beyond the current 12 teams and is an internationally recognized author, lec- potentially into international markets, which turer, strategist and seasoned advisor to the could bring in $60 million per team in expan- leaders of premier law firms; having had the sion fees, although a final plan has yet to be honor of working with at least one of the announced. largest firms in over a dozen different coun- tries. He is author/co-author of ten books Venues will also be built to house esports most notably his international business best events. In Los Angeles, Activision Blizzard seller, First Among Equals, currently in its built an esports stadium for Overwatch seventh printing and translated into nine League this year, and we’ll see more purpose- languages. His most recent work, The Art built spaces in the coming years, particularly of Leadership Succession (Legal Business if expansion goes overseas. Also, we may World Publishing, 2019), provides in-depth just be scratching the surface of the esports guidance on the leadership selection process. advertising business. Esports fans represent a Patrick is the recipient of an “Honorary valuable under-30 crowd, and we should see Fellowship” from Leaders Excellence of advertising to them go mainstream now that Harvard Square. Reach him at: patrick@ Overwatch League has built critical mass. patrickmckenna.com.

12 Of Counsel, December 2019 What Really Works: Law Firm Management Approaches That Have Stood the Test of Time

As a management consultant focused on and using the existing five inch gun sys- strategy development and execution for the tem (unbelievably accurate) as a floating last 49 years, I have had the good fortune to and flexible artillery support. Since I was do something for living that I truly enjoy. It a pretty low level officer, I had to run my was what I wanted to do when I went back to suggestion up the chain of command—I grad school, after my time as a naval officer received a number of congrats for cre- (a long time ago), and I am still doing it. I ativeness from my seniors, but no one was learned early on that the true test of consult- going to risk their career on what they ing effectiveness is not your ability to identify probably considered a really dumb ass and state what the issues are, but what your idea. So, my brilliant idea died. clients can do to successfully address those • Early in my career as a consultant, I con- issues (i.e., make what’s wrong right). That ducted a number of assignments in the fix-it solution (whatever it turns out to be) criminal justice system (which would ulti- requires creativity, clarity, follow-through, mately lead to my serving law firms). One and measurement of the results. of the first police departments I studied was in Maywood, Illinois, a small suburb Coming up with solid recommendations directly west of Chicago that was undergo- that can be implemented within the resources ing a major shift in its racial makeup. We available or likely to be available to a firm or interviewed citizens and citizens’ groups practice requires some experience. Like all and found out that their major concern professionals, I have had to learn from that (at that time) was that the police were just experience (and its hard knocks)—I give you not visible enough (demonstrating that two early examples. not that much has changed in 45 years). In my slowly forming consulting mind, • Many of our clients know that as part of I thought that the more visible you can my service in the US Navy, I spent a year make police cars, the better the police vis- in Vietnam on riverboats on the Mekong ibility. So, I recommended that Maywood River and its tributaries. We operated in paint all of their police cars orange. The 33 foot waterjet boats (PBRs) and were Village Board thought that was a crazy mostly combatting the Vietcong and, idea, but there was a happy ending—they and sometimes, the North Vietnamese. did repaint the police cars considerably We learned that when the going got brighter colors, but not orange, and vis- tough, needed artillery (either from the ibility did dramatically improve. Vietnamese Army or our own Army) was difficult to get and, often, not very accurate or timely. Much of the Mekong Law Firm Management Solutions River and its major tributaries are navi- gable, particularly for lower draught ships. I came up with what I thought was So, with a lot of other industry consult- an absolutely brilliant solution—outfit- ing experience under my belt, my consulting ting a destroyer escort (DE) for the river career with law firms (starting in 1984) had (primarily by cutting off its sonar dome that focus on solutions—addressing issues by - the Vietcong did not have submarines) recommending changes to firm management.

Of Counsel, Vol. 38, No. 12 13 I thought it might be useful to our clients and mergers are a better strategy for long-term friends to list and share the solutions that growth then just exclusively adding later- work just about every time they have been als. Mergers, however, are tougher to do, so tried—so here we go. firms’ financial planning for growth ought to include consideration of the rewards and costs of both options. Also, the best growth Use a Multiyear Budget to Focus strategy probably includes a little bit of on Growth and then Manage to It both.

Most law firm budgets—still now—are Even with Technology, Get It one year in length and as conservative as pos- on One Page sible (to a degree, so that firm management can claim every year that they beat budget). Most other businesses are very different— Most law firms have invested quite heavily they budget to grow and they then manage in technology. And they have had to, in order that business to achieve that growth—and to remain competitive and to meet increas- their budgets are usually for three to five ing client cybersecurity demands. A natural year periods. That means that activity and byproduct and/or result of significant invest- resources (rather than just saying “I wish we ments in technology, however, is being awash could grow”) are focused directly on growing. in data almost to the point of inaction. This naturally leads to the fact that—in many In our last annual survey (at the beginning cases—law firms (or, for that matter, busi- of 2019), the biggest issue mentioned (by far) nesses) cannot see the forest for the trees. by law firm CEOs and COOs was their per- ceived lack of growth. Unless you set objec- A number of years ago, I read an excel- tives and execute strategies directly intended lent biography of Dwight Eisenhower and, to achieve that growth, it will not happen. it was so long ago, I cannot even remember And if you achieve it, you better reward for it. the author. Eisenhower, of course was sur- rounded by massive egos in his generals and admirals (Patton, Montgomery, Bradley, etc.), Growth is Not Free—You Have to but most historians clearly give Eisenhower Financially Support and Plan for It the credit for literally getting it (D-Day) done. What has stayed with me from that biography is a simple rule that Eisenhower instilled on Both the one year and three year budget- his various staffs (both as a general and presi- ing processes are considerably less effective if, dent). Simply, that anything that staff mem- along with allowing for growth, firms do not bers wanted him to act on had to be presented plan for the cost of that growth. For exam- on one page. His point was that if you had ple, when you take on a lateral partner (sup- not thought it through to be able to get it on posedly with that ever desirable and coveted one page, its probability of success (and of book of business), there are significant costs. being approved by Ike) was low. It takes about six months for the new partner to ramp up, do work, bill it, and then collect In today’s technology driven environment, it. That investment cost has to come out of that admonishment is even more critical. The the hide of the other partners, so it must be use of “dashboards” in a variety of infor- budgeted for (as well as the expected level and mation systems speaks to Eisenhower’s dic- timing of the revenue that comes from these tum. The effective use of these dashboards, new partners). however, is considerably less than it could or should be. My suggestion, regardless of tech- The cost of ramp-up is why—all things nical system capabilities, get the information being equal—we believe well thought out on one page so decision makers can act on

14 Of Counsel, December 2019 it. The KISS (keep it simple, stupid) concept industry leading clients and non-clients) works. to provide input to law firms’ specific industry teams.

A Strong Industry Focus and Approach Is Probably Essential to When Partners Bolt, Do As Much Longer Term Success As Possible to Hold on to Their Client Work Virtually every law firm of any size has developed some sort of an industry focus. We Probably more so than any other profes- have found, in spite of a general understand- sion, firm changing attorneys take their work ing of the importance of industry organiza- (i.e., book of business) with them to their tion and focus, the great majority of law firms new firm. That’s why virtually all firms are are not doing it nearly as well as they should. looking for “laterals with books of business.” Too many firms are still organized primar- It, however, does not have to be that way. A ily around legal specialties, rather than by an very good client of ours in the Southeast has industry focus. In fact, many firms are still had a very solid (and successful) continuing saying that there industry groups are for mar- approach to laterals leaving. The Firm goes keting purposes only and that the legal spe- to “general quarters” and does everything cialties are the true organization of the firm. possible to keep most or all of the continuing Clients, however, are organized by markets/ work with their clients. Although they have industries, not legal problems. not been totally successful, they have been able to hold on to a good bit of work—mak- Our opinion—primarily drawn from exten- ing for smaller and less damaging departing sive interviews with clients—is that their law “books of business.” firms’ industry teams with formal industry expertise and visibility are very important to Unless there is a feeling that losing a part- them. Clients do expect legal expertise as a ner and her/his clients is probably a good given, but more and more demand industry thing (and, sometimes it really is), there expertise as a differentiator. Although many should be a process in place for mobilizing websites have long lists of attorneys assigned the managing partner, the practice group to specific industry groups, it is not difficult leader, the industry group leader, and oth- for clients to pick up the fact that these firms’ ers to immediately meet with the clients of industry structure is a paper tiger. that partner or partners who is leaving and convince them to stay. Simply, if you do not Some of our recommendations regarding make an attempt to keep the work, the cli- industry organizations follow. ent will more than likely move the work. And remember, clients (just like all of us) want to • Make industry teams and groups the pri- be wanted. mary client delivery, client handling, and marketing structure for a law firm. • Focus marketing efforts and resources on Do Not Only Collect Data, these industry groups and industry exper- But Visibly Use It in Making tise, rather than on legal specialties or individual partners. Management Decisions • Make industry team leaders visible in the marketplace and in the industries they are Law firms are now collecting a good bit pursuing. of management data—financial and opera- • Consider new approaches—like develop- tional activity is being captured, compared, ing industry advisory teams (made up of displayed, and distributed. While for many

Of Counsel, Vol. 38, No. 12 15 firms, the collection of data has grown dra- tried in law firms, they usually work quite matically, the effective use of that data to well. make better management decisions has not. It is generally true that the investment in increased technology and management aid- Marketing and Client ing systems has not produced significantly Development Is a Contact Sport improved financial results to cover the cost of that technology. The problem usually seems to be a combination of not having sufficiently Attorneys, accountants, doctors, and other trained key people who use these specific (and professionals really (in their hearts) prefer very expensive) systems and the management that marketing be done indirectly. But, what data produced/presented along with a clear they prefer and what really works are often unwillingness to change. A place to start is to very different things. It is extremely important invest in the training needed to actually use that a law firm have an effective website (and the systems. other important marketing aids like effective CRM systems), but law firms’ people have to be the ones that sell the work and initiate Make Better Use of Non- and maintain the relationships. In legal ser- Attorneys in Practicing Law and vices, the attorney is the product—yes, qualifications are critical, but clients are retaining Dealing with Clients people, not websites. At some point in time in the sales process, the key attorney will have Over the past 15 to 20 years (and in many to demonstrate her/his ability and responsive- cases before that), law firms have been hir- ness to client issues. So the more the actual ing higher caliber (in terms of qualifications practicing attorney and her/his qualifications and talent) non-attorneys to handle signifi- are visible to the potential client, the higher cant management responsibilities (law firms the probability of success. now have C suites for the COO, CFO, CMO, CPO, etc.). But in spite of the talent and The lesson we have learned in looking at experiences that some of these senior people marketing efforts of firms of all sizes is that (and, for that matter, mid-level people too) the better a law firm presents true qualifica- bring to the table, most law firms still have a tions and the unique abilities of its people strongly delineated by the “front office” and (in the context of the benefit to the client), the “back-office.” the more productive the marketing effort and investment will be. We believe it helps the effectiveness of client service to selectively use the talents of non-attorneys in the delivery of service to cli- Use Smaller More Intimate Client/ ents, particularly in major transactions and/ Potential Client Sessions to or trials. This can come in terms of managing tasks, developing management reports, and Demonstrate Expertise a whole variety of things. Years ago, when I was the partner in charge (at Arthur Young) All law firms have various presentations/ of a complicated and complex management seminars for clients and potential clients. audit of a very large investor-owned utility, I Usually, they are very well done and well utilized an Arthur Young auditor to manage attended—but just too darn large to really the tasks, billing, and expenses. We came in be effective. We have found that getting way under budget and, since it was a fixed fee small groups of clients and potential clients engagement, we combined an excellent result together (say, about 25 people) results in con- for the client with an unbelievable profit mar- siderably more communication, discussion, gin. Where I have seen similar approaches understanding, and ultimately being retained.

16 Of Counsel, December 2019 We saw it at Arthur Young years ago—all The solution is a very simple one—the of our offices had an annual tax issues semi- term “my client” is not an acceptable term in nar and they competed with each other to see discussions about serving clients and client how many people they could get to attend. matters. “Our client” is a very acceptable sub- It always reminded me of the parable of the stitute and one that can overcome the micro- wedding feast—going out to the highways aggression (a hot term on campus nowadays) and byways to drum up attendance. In truth, of the thought that individual partners pos- we would have been better off focusing on sess clients. small groups of comparable clients and non- clients to go over major tax issues and ensure This completes our suggestions for sim- and encourage solid participation, commu- ple things that work and have stood the nication (not just with us, but also with each test of time. I remember the definition other), and understanding. that effective management is really nothing more than “applied common sense.” In other words, if it generally makes sense, The Term “My Client” Is a considering doing it and if it does not, do Tangible Micro-Aggression not. ■

After serving hundreds of law firms over —John Smock the years, I still react very negatively to the term, “my client.” The truth is that all clients John Smock is a principal of Smock Law Firm are the firm’s clients (served by those attor- Consultants, a strategic management consult- neys the best fit the clients’ needs). My rule of ing firm serving the nation’s leading law firms. thumb has always been that the payee on the Roughly 75 percent of their work is for law check which pays for legal services is the pos- firms and the remaining 25 percent for top man- sessor of the client. In virtually 100% of the agement in a variety of industries. Reach John cases, that is the name of the law firm, not the Smock at jsmock@smocklawfirmconsultants. name of the individual attorney. com or 847.457.6121.

Of Counsel, Vol. 38, No. 12 17 nations that use one form or another of a single-payer system not focused on prof- Healthcare Update its, healthcare is, of course, very much a business—a big business. And the enti- ties involved work to situate themselves to advance their investors’ interests, or at least Continued from page 2 stay afloat in this very competitive market. “Right now it’s kind of a musical chair situ- ation because everyone seems to be afraid of specifically involving Medicare or Medicaid being the last one standing,” Schwabe’s Hagen patients, to another provider or entity if the says. “You have organizations reaching out to physician has a financial relationship with one another and exploring potential syner- that other party. gies to see what they might be able to do to strengthen their position in the market.” Another major law currently governing the industry and requiring lawyers to track, At Atlanta’s Troutman Sanders, 15 attor- interpret, and advise clients on is the Anti- neys in the healthcare group advise a range Kickback Statute, which helps protect against of clients and several other lawyers in other Medicare-related fraud and abuse. “Clients departments offer counsel when needed. come to us frequently for answers to compli- “These days we are doing more and more ance questions on the Anti-Kickback Statute healthcare transactions,” says Erin Whaley and the Stark Law,” Haper says. “These huge who focuses her practice on healthcare, M&A federal laws apply to virtually anything a and health information technology out of healthcare provider does, if they participate the firm’s Richmond office, “We continue to in the Medicare and Medicaid Programs. see private equity firms wanting to invest in These laws are complex and any type of busi- growing specialty practices to try and take ness arrangement should be reviewed under advantage of economies of scale and look at these laws.” innovative [healthcare service and payment] models.”

M&As on the Rise Healthcare deals differ significantly from transactions in other industries, primarily because of the heavily regulated nature of Like the legal profession, the healthcare the healthcare landscape. “Whenever there’s industry is witnessing a rash of mergers and an acquisition obviously the buyer wants to acquisitions, and players both inside and out- make sure they’re not taking on any historic side this economic sector rely on the exper- regulatory risk from the seller’s past opera- tise of experienced attorneys to get deals tions,” Whaley says. “That’s a fairly involved done. “We are actively involved in counsel- due diligence process when you’re doing a ing clients [with such deals],” says Andrew healthcare deal.” Meyercord, chair of the transactional department who has vast healthcare experience, in The buyer also wants to examine the sell- the Dallas office of Texas-based Gray Reed, er’s relationship with physicians and other which has 10 healthcare lawyers who repre- people involved, conduct a billing and cod- sent providers. “I would expect the trend of ing audit, and carefully review the seller’s private equity firms and property manage- HIPAA compliance program. “Hopefully ment companies purchasing physician prac- you won’t find any risk areas but if you do tices to continue.” those need to be evaluated and incorporated into the deal,” Whaley adds. “The other This consolidation craze underscores the thing that makes healthcare deals different is reality that, unlike in most other developed the timing. Even though the parties involved

18 Of Counsel, December 2019 would like the deals to move quickly, it often breaches. In fact, those groups need people takes a lot of time to dot all the i’s and cross with a range of ability and knowledge. all the t’s.” “It’s gotten to the point now where you have to have a broader team,” says Dickinson’s HIPAA and Hiring Gary, who is a former assistant attorney general for the state of Tennessee and former in- house counsel with Blue Cross Blue Shield. On the privacy and data security front, “Our practice group has 30 attorneys. We now more than ever hospitals and other have another 10 people, both attorneys and healthcare organizations need counsel, given non-attorneys, in the Crux Group, and we the ever-increasing availability of electronic plan on hiring more healthcare lawyers as information and the high level of sophistica- well as non-attorneys.” tion of information thieves. Although finding that help is challenging, “This is a very big deal now,” Haper says. it may be easier in the Nashville area than in “With the new direction that healthcare is other parts of the country. “A lot of days it taking, information-sharing among health- feels like a unicorn hunt,” Hagen says, when care providers is so valuable. Anybody who’s asked about the difficulty of recruiting health- treating a patient has access to all the rel- care laterals. “Law firms are feeling financial evant information about that patient with pressure from clients and finding somebody each physician having their own health who has both experience and a book of busi- record and access to other records. It’s great ness is very difficult, particularly in our mar- from a care standpoint but the more avail- ket. This is not Nashville; there are not a lot able electronic information is the more of a of people with that kind of experience float- threat there is — either inadvertently or by ing around.” wrong deed.” At Troutdale Sanders, the healthcare Healthcare providers must employ far- groups wants to bring in attorneys who have reaching preparation and vigilance and knowledge of the industry and how health- adhere to HIPAA guidelines, and those care in this country actually works on a daily efforts must extend beyond the hospital basis, as well as an understanding of health- walls. “It’s about planning and keeping tight care regulations. “That’s critical in order for controls of your patients’ information – as us to be able to give practical advice,” Whaley well as having a good handle on what your says. “It’s all about finding the person with own subcontractors are doing with that the right background, skill set and knowledge information,” Haper adds. of the industry and can fit into our culture, which is very important. We have a good Naturally, this requires technological team but we’re looking to expand.” ■ expertise, and increasingly legal groups add tech specialists to help them help their clients stay compliant with the law and prevent data —Steven T. Taylor

Of Counsel, Vol. 38, No. 12 19 and building relationships with the pro sports leagues. For example, we wouldn’t do the con- Of Counsel Interview tract between the player and the team, but we would do everything else. When you saw someone endorsing a product on television Continued from page 24 or doing licensing, all those things that hap- pened off the field or off the court is where we helped our clients. executives, entrepreneurs, sports leagues, athletes, celebrities and entertainers.” Migrating into Private Practice Recently Of Counsel talked with Gonser. What follows is that edited interview. OC: After you were there, what was the Of Counsel: What was it that interested you next step in your career arc? in the law? Why did you take this career path? TG: Then I went to Dreier Stein Kahan Tye Gonser: The initial reason I went to Browne Woods George, which also no lon- law school was because I wanted to be in the ger exists – hopefully I’m not the jinx on sports business. So it’s a little different path these firms. I was introduced to Mark Dreier than a lot of lawyers in that I didn’t attend who had essentially started purchasing law law school with the idea of practicing at a big firms all over the country. He was based in firm or passionately defending certain types New York City and had acquired a couple of people or seeking social justice. I saw it as of firms in LA. One of our clients, a Hall of a skill set and believed it would help me break Fame football player, knew Mark because into the competitive sports business world, Mark had sponsored his charity event every potentially as a sports agent. year. Mark introduced me to him when I was in New York, and I told him about my That goal also influenced where I went to background in sports. I didn’t really have law school, which is a school that had a very much of a background in corporate law or good sports program. I ended up building finance or anything at that point, so it was relationships in the athletic department and really my relationships within the sports wound up working for the baseball program industry that he found intriguing, and I there, which is what I played in undergrad. I think then he pushed the people in LA to also wanted to get back on the field, which I give me a job. missed. I earned a joint JD/MBA degree, and my first job actually ended up being in sports. OC: Who was that Hall of Fame football So I didn’t go into law, and I couldn’t name player? five law firms while in law school or even after I graduated. TG: Marcus Allen.

OC: What was that first job? OC: Oh yeah, that’s cool. How long did you practice at Dreier Stein? TG: I was the in-house lawyer for a sports marketing agency in Santa Monica, called TG: It was about a year. Dreier is where I The Sports Link, which no longer exists. We met Lee Weinberg, and of course Lee and I represented NFL athletes and other profes- wound up forming this firm. Lee’s probably sional athletes, but mainly football players. 15 to 20 years more experienced than I am. We also represented brands on the brand He does come from a background that’s very consulting side, helping them with marketing well-versed in corporate law and finance. He

20 Of Counsel, December 2019 started off at Sullivan & Cromwell and was Guided by Two Core Values also at Debevoise & Plimpton. He’s different from me in that he came from the biggest law firms in the country, doing really large M&A OC: You and I have spoken about service work and financings. He took me under his and caring as two of the foundational prin- wing early on back in the Dreier days and ciples of your law firm, and about bringing helped me learn how to become a corporate in people who adhere to that philosophy. Is lawyer and do financing, structurings and it difficult to assess whether somebody fits other things that I really hadn’t had a lot of the culture when you’re interviewing him or experience in at that time. her and then when you bring someone on?

OC: What year did you start at Weinberg TG: That’s a great question. It is difficult, Gonser and what was the biggest challenge and I don’t think you even know if you’re the two of you faced? right or wrong for awhile. You do your best just to get to know people. I think everyone TG: We started in January 2009. It’s has their own techniques, but a lot of what funny, we had a lot of challenges, but in I do is try to spend time with people in more hindsight they didn’t feel like much because of a personal setting, like outside of the we didn’t have much of a strategy or direc- office, grabbing dinner or a coffee, or going tion at that time (laughs). Looking back on for a walk, and trying to get to know people it, I don’t think I knew enough to even have as humans. And then I just trust my instincts realized what the obstacles and challenges and my gut. were in an intelligent way. And now looking back on it, I don’t know that I would do I guess there’s never really a way to know that again, but I’m really happy with where if someone lives their values or what they we ended up. espouse to be their values until you see that over time. But I think there is a way to get OC: You’ve purposely kept the law firm a feeling from people and what their energy small, if I recall from our last conversation. is and if they seem like people who are more What is the thinking behind that strategy? likely to collaborate and give and serve or if they’re people who tend to be more internally TG: Well, the strategy is based on people, focused. meaning our growth or lack of growth will always be predicated on finding lawyers and OC: You use some terminology that I don’t clients and other teammates within the orga- hear a lot of when I talk to lawyers: “empa- nization that we know, first and foremost, thy” and someone’s “energy,” “giving” and share our values and our ideals of service that notion of “caring.” How do your clients and caring and communication and empa- react to that kind of sensibility? thy. We want our lawyers to collaborate and be part of a team. And of course we want TG: I think our current clients enjoy it, interesting, different and diverse people, which is why they’re still with us. I can only those who are respectful and care for each speak for myself about this but I found that other and try to provide quality service for the more comfortable and secure I get in ourselves and the people we work for and talking about the things that are important with. So the more of those people we find, I to me both internally and to our teammates guess the bigger we’ll get, but it’s not growth and also externally to the world, whether to grow like a lot of professional service it’s potential clients or clients or friends businesses. It’s more about the well-rounded or other service providers, the more that I human and lawyer as opposed to just a tool start to build relationships with people. And to drive revenue. importantly, I mean people who I think

Of Counsel, Vol. 38, No. 12 21 value those same principles that lead to my wanted – to close this transaction and then happiness in what I do because I get to work have a little security blanket for his brand new for and work with really interesting people young family. So it meant a lot and I really who are passionate about what they do as felt satisfied by it. entrepreneurs and who I also have something in common with outside of working together. The Bad and Good OC: To shift gears here a little bit, when you think about all of the matters that you’ve OC: What do you dislike about the profes- handled in your legal career, which one or sion? And then I want to turn it around and two and gave you lot of satisfaction – perhaps talk more optimistically. when you were really able to help your client position himself or herself in the best way TG: I don’t like how our profession is per- possible? ceived. But a lot of this perception is earned. Many in the general population, and even TG: Sure, there’s one that quickly comes to business owners who have lawyers, say they mind because it was actually last year in 2018. don’t like lawyers or they have a defensive It jumps out at me because of how great it reaction when they hear the word “lawyer.” made us feel, the satisfaction we felt by what Where this reaction often comes from is sim- we did. They irony is it was an asset sale where ply a lack of communication in our profes- we were representing the seller, a fairly young sion, meaning that we’re well-intentioned but gentleman who is probably in his early 30s that we don’t do a good job of communicat- and who I’ve known for awhile socially and ing with clients what they’re going through otherwise. He’d been building a business in and what it’s going to cost, in a way that gives the travel industry and someone approached someone certainty. I think everyone likes to him and wound up purchasing the assets and feel psychologically safe and, for business also gave him a job afterwards. owners, certainty leads to safety, which then leads to better relationships and better feel- The funny part is that it was probably one ings about how things happen. I think all of of the smaller deals we’ve done and that we us lawyers can do a much better job of doing can do in an asset sale, meaning the amount that. of money the company sold for was a significant amount of money, but nothing that’s OC: Great. And now what is it that you going to make headlines in a business journal really like about being a lawyer and working or anything like that. in this profession?

What was important was that for this TG: It’s the opportunity to help people. person it was a very significant amount of That’s what I realized back when I was in money, and a significant time in his life: He the sports business, and I chased my goal to had just gotten married and was about to have break into that industry. I ended up success- his first child. It was also his first time doing fully doing that, but I came to the conclusion any sort of transaction, which means that that a lot of elements of working in sports we got to really communicate with him and representation weren’t for me. I didn’t agree help him through this process – as his legal with a lot of its components. Still, it was a counsel but also as a friend and coach and, great experience because it taught me at a at times, a therapist. We helped him under- very young age, at maybe 26 or 27 years old, stand why the back-and-forth happens and what I cared about and what I didn’t. It taught what it really means and how to avoid taking me that I really enjoy helping people achieve things personally. I think we helped him focus their goals. I also realized that the law was a on get to the end result, which was what he great conduit to use to help people achieve

22 Of Counsel, December 2019 their goals. And that’s what I find personally TG: Sure. I think it’s incredibly important satisfying about practicing law: building rela- for everyone – regardless if you’re a lawyer tionships with people through helping them. or a teacher, or whatever you do in life – to figure out what helps you get better every OC: And you’ve built a lot of relationships day and what helps you both mentally and with people, some of whom are celebrities. So physically. I found for me that going through here’s a tabloid-type question: What celebrity gratitude and meditation and visualization have you worked with who you really liked every morning helps set my mind. It lets go and appreciated? of stress, focuses on the positive, and gets me ready for the day. The physical element TG: Well, one of my all-time favorites, is really big for me as well; working out and which I think you’ll appreciate as a Portlander doing other stuff helps me relieve stress because it has an Oregon connection, is and feel good. I’m a big believer that we as Yeardley Smith. Her day job is the voice of humans need to take care of ourselves, so we Lisa Simpson of “The Simpsons” show. And can be our best for others, whether it’s work obviously a lot of “The Simpsons” character or personal or otherwise. names came out of Portland, which is cool. But I’ve been working with her for about OC: Is there anything you’d like to add to seven years now. I’m not her entertainment our conversation today? lawyer because she has someone who is much better than I would be at doing her deals with TG: You asked me a great question about Fox and what not, but I help her with all her the legal profession and I gave an answer business interests she does outside of her day about what I didn’t like and what I thought job. Right now she has a production company we could improve on. The one thing I’d like to that I assist with, and she’s had some other add is that you’re welcome to print my email investments and businesses throughout the address, and anyone who has ideas or wants years. to share thoughts on how to improve things is welcome to contact me. I don’t have all of She’s just an amazing all-around person the answers by any stretch of the imagination, to me. She’s incredibly successful in what she but I think the more we can start thoughtful decided to do in life as an actor, and also she’s conversations within this industry, the more such a kind, caring, thoughtful person. It’s likely we’ll discover how to make it better. been great to get to know her as a human, and I’m grateful I get to work with people It’s important for us to be more open and like that who are so interesting and passion- vulnerable and to discuss what’s going right ate about what they do but who still maintain or wrong or indifferently. We can share ways their character and integrity. to best help younger lawyers understand their options and what they do for a living, which doesn’t necessarily need to be driven by Getting Centered money or status. It should be driven by each individual and what’s important to them.

OC: You meditate early in the morning, OC: Thank you. [You can reach Tye Gonser and there seems to be a growing sensibility at [email protected].] among lawyers and other professionals to find an outlet to de-stress. Could you talk about that? – Steven T. Taylor

Of Counsel, Vol. 38, No. 12 23 Wolters Kluwer Of Counsel Distribution Center 7201 McKinney Circle Frederick, MD 21704

Of Counsel Interview … Breaking the Mold: Lawyer Takes Refreshing Approach in Practicing Law and Managing People

When you think of corporate lawyers, in-house backgrounds,” according to its web- often you think of hard-charging dealmak- site, “yet we pride ourselves on our ability to ers. When you think of athletes and former provide personalized counsel to our individ- athletes, often you think of super-competitive ual and entrepreneurial clients.” alpha types. Gonser leads his team by both words Former college athlete and corporate attor- and deeds, and he’s cultivated a reputation ney Tye Gonser breaks those stereotypes. for helping his clients grow by using a style While the co-founder of Los Angeles-based, that, once again, defies corporate-lawyer 11-attorney Weinberg Gonser is clearly ambi- stereotypes. tious, energetic, successful, and a strong advocate for his clients and their interests, he “Tye Gonser is mindful and strategic,” says also places a premium on the emotional well- Elizabeth Lambert, president of her market- being and “empowerment” (as he says) of his ing and public relations firm in the Bay Area, colleagues, clients and himself. Elizabeth Lampert PR. “He understands how empowerment helps companies and Gonser and co-founder Lee Weinberg individuals achieve their goals. His style of have built a law firm with top-notch lawyers representation is personal, and he has deep who represent both emerging businesses and relationships within the industry. He creates high-profile companies and individuals. Also, value for companies in collaborating with they’ve also created a culture that focuses on close relationships. “We are highly experienced and driven lawyers with big-firm and Continued on page 20

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