Editor: You had a long and distinguished career in public service and in the private sector prior to joining Jones Day in January. Could you outline that for us?
Brown: I started my legal career as an assistant attorney general for the State of Ohio, representing the Ohio State Medical Board and the Ohio State Pharmacy Board. My early work was as a litigator in regulatory matters, prosecuting physicians and pharmacists who had violated the terms of their licenses. One of my initial cases was dealing with the Federal Misbranding of Drugs Act. We had a lot of chain pharmacies at the time that were ordering drugs in bulk and then dispensing them in their own pouches without putting mandatory drug labels on them. As a 26-year-old lawyer who was pitted against some of the best lawyers in the country, this was a real challenge, but it was a great way to learn how to litigate cases. At the age of 32, I was the first African-American woman elected to the Franklin County Common Pleas Court in Columbus, Ohio. I served for nine years in the Domestic Relations & Juvenile Branch before resigning from the bench to go to Nationwide Children’s Hospital to create the Center for Child and Family Advocacy. I was one of four presidents reporting to the CEO at the hospital, heading my own subsidiary corporation with a board of directors, a $30 million portfolio and 400 employees focused on child abuse, psychiatry, psychology, developmental and behavioral pediatrics, and autism. After eight years at that post, Governor Strickland, former governor of Ohio, asked me to be his running mate for his second term. I joined him as his lieutenant-governor candidate in 2010. After the election when we were not successful, the governor appointed me to the Ohio Supreme Court, and I became the first African-American woman to ever serve on the Ohio Supreme Court.
Editor: Why did you decide to work at a law firm now, and why Jones Day specifically?
Brown: When I was at the Supreme Court, I really loved the intellectual atmosphere and diversity of cases that we had. I enjoyed digging into complex legal issues, really testing legal theories, applying the law and the Constitution to current facts that could not possibly have been contemplated when the Constitution was written, for example, application of the Fourth Amendment to GPS use by law enforcement. When Jones Day reached out to me, I started thinking about what I wanted to do with this last quadrant of my career. I knew I wanted to stay engaged in the law, work on important, highly intellectually challenging cases and maintain a community presence. Jones Day offered this and more. At Jones Day, I have the opportunity to work across the firm, even though my primary home is in business and tort litigation. I have the opportunity to add value across any number of areas in the firm, to mentor young lawyers and to still have a community presence.
Editor: Which areas do you plan to focus on at Jones Day?
Brown: My focus will be on litigation with some appellate practice. As a former public company director, I will also do corporate governance and corporate investigations. Some of my partners have also asked me about health care issues since I spent eight years at a top-ten pediatric hospital.
Editor: Presumably you will be involved in cases going before appellate courts, particularly oral arguments. Could you reveal any pet peeves on lawyer behavior before high courts?
Brown: My biggest peeve is lawyers who don’t want to be interrupted in their oral argument. Sometimes lawyers are so wedded to getting their argument before the court without interruption that when judges start firing questions, they become irritated. My rejoinder is this: If the court is not asking you questions, that’s because the judges have already made up their minds. Lawyers should want a court that is fully engaged in their argument, wants to test their legal hypotheses and wants to debate back and forth the area of the law that is before the court. The best lawyers at oral argument are those lawyers who are able to engage the jurist and then move smoothly back into their argument. Also, the one question a lawyer should expect is, what is the rule of law you want us to write? We are not writing only for your case but a rule that applies state- or nationwide.
Editor: Jones Day has been building an unusually large appellate capability in Columbus, even before your arrival. Can you talk about the firm’s philosophy in pushing the Issues & Appeals practice into regional offices rather than keeping it all in Washington?
Brown: One of the things I find very exciting about this firm is that geography is not limiting. We truly are one firm worldwide. No matter where your Jones Day office is across the world, you can get involved in any number of cases where you can bring your expertise to bear. Unlike other firms where one or two litigators do all of the appellate practice, we have an Issues & Appeals lawyer in just about every office. In the Columbus office we will have two former U.S. Supreme Court clerks, and we have seven lawyers who have clerked at the federal appellate level. One of my partners, Chad Readler, just argued a pro bono case in the United States Supreme Court. It’s great being part of a firm that makes such a significant investment in pro bono work.
Editor: Given your long history with the health care sector, can you speak to the legal challenges in this area, particularly for academic medical centers wishing to commercialize research?
Brown: Hospitals are seeing a declining revenue stream; therefore, there is a need to focus more on commercializing research and using their intellectual capital in commercial channels. This is particularly true of academic medical centers. One of our clients, the Cleveland Clinic, has partnered with non-academic medical organizations, bringing their expertise to those partners who are inexperienced in commercializing research to help them leverage their abilities and capacity by way of innovations. I think you’re going to see more partnering of hospitals as well as corporations in order to be successful in this funding environment.
Editor: How are the health care institutions you are familiar with going to be impacted by the Affordable Care Act?
Brown: The Affordable Care Organization Model will force consolidations. Institutions will either own or have access to what we call one-stop-shopping centers because the new model currently turns our existing model on its head. In my former days as a health care president, we viewed each day on our average daily patient census – the more beds filled, the better the bottom line. The new Affordable Care Act is going to change that model away from reimbursement based on having beds filled to reimbursement based on the quality of health care provided. It’s a very different mindset. Reimbursement will be for quality, not quantity.
Editor: Given your experience on the bench and your extensive service on corporate boards, do you have any advice for our readers on governance issues?
Brown: Because it’s a litigious world, every public company director has to assume that every material decision is going to be second guessed and could perhaps be challenged by litigation, and so I think process is critical! And so is good record keeping of that process. The business judgment rule is alive and well, but directors have to make sure that they’re acting with complete loyalty and due care to the shareholders. Because process is so important, directors have to avoid even the appearance of a conflict of interest so that they can avail themselves of the business judgment rule. If you look at the cases of directors who have gotten in trouble, they are directors who have not exercised their duty of care. Work for directors takes place outside of the board meeting in reading board materials, giving thought to the agenda issues and preparing to engage in thoughtful discussion, demonstrating that you are truly independent.
Editor: Can you say anything about crisis interventions? What should companies keep in mind when structuring corporate internal investigations?
Brown: Companies should always have a crisis intervention plan before there is a crisis. When you’re faced with a crisis, you should always think about the risk of exposure to the company. Is there an outside agency already investigating or likely to investigate? Is senior management or the board implicated? Then, identify who you’re going to bring in and what the reporting relationship of that independent investigating attorney is going to be. Experience has shown that outside regulators give more credibility to independent investigators versus in-house investigators, so I would encourage corporations that are in a crisis to bring in an outside team. Experience matters. Here at Jones Day we have not only former judges but also former U.S. attorneys and prosecutors who are experienced in dealing with regulatory agencies and crisis matters. Finally, make sure that the board and the company identify where the attorney-client privilege vests.
Editor: As a very active community leader both in Columbus and in the state, can you offer any advice to busy lawyers on how best to leverage their time and expertise to make a difference through community service?
Brown: I always say to young lawyers that some of my most gratifying experiences have come from my work in the community, outside of what I do professionally. First, find something that you’re passionate about – something that you may not get in your professional work but that you wish you had the opportunity to be involved in. Look for a role that’s going to fit your schedule; be willing to use some of your weekend time to volunteer; and understand what the expectations are if you get into a community role. Don’t overcommit. Pick one or two things that you have a great passion for and do them well. It gives you a chance to meet other professionals in the community with whom you might not otherwise interact and to develop skills that you might not get the chance to use in your law practice. Most importantly, you are making a significant difference for people who really need your help and developing great friendships that you never could have anticipated or had access to in your everyday work life.