Category: Features

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

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

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

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

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

APPLIED ETHICS

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

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

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

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

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

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

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

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

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

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

FOLLOWING MR SMITH

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

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

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

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

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

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

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

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

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

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

TAKING THE REINS

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

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

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

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

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

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

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

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

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

I BEG YOUR…

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

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

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

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

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

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

WHITE HOUSE TO IN-HOUSE

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

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

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

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

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

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

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

A MOMENT OF REFLECTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I Choose You

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

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

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

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

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

Gotta Catch ‘em All

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

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

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

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

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

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

Putting Pikachu First

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

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

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

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

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

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

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

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

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

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

Time to Evolve

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

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

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

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

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

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

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

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

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

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

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

Back to Victory Road

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

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

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

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