On the Record With Mary E. Kennard of American University

Mary E. Kennard is vice president and chief legal counsel for American University in Washington, D.C. She has also held other strategic positions and lectured since joining the university in 1995. Kennard spoke with Legal Times on topics including managing administrative challenges, determining new university policy on downloading copyrighted material and choosing outside counsel.

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Mary E. Kennard is vice president and chief legal counsel for American University. She has held other strategic positions and lectured since joining the university in 1995, and currently serves on the AU president’s Cabinet. What’s top of mind for you in your job right now? What’s in those folders piling up on your desk? How to protect the university’s name and interests worldwide in the face of new technology and the speed of information. Right now, I’m working on a new university policy to discipline students who use our computer system to download and share copyrighted movies and music. In addition to slowing down the server for everyone, the music and recording industry has a more concerted campaign to increase enforcement of its rights. Now this would seem to be a simple intellectual property matter, except for the fact that our 18-year-old students have been downloading and sharing things all through high school and don’t understand why the “administration” is cracking down on them — after all, they were using Napster before it was “cool.” In order to comply with the Digital Millennium Copyright Act, we’re beefing up our enforcement efforts. Also on my desk is an e-mail from the consortium of D.C. colleges and universities advising member schools that someone is running a fake diploma mill on the Internet. For about $35, anyone can get a fake degree that’s good enough to fool the average person. This would normally seem like a minor problem, unless, of course, you’re trying to get into the United States illegally and need documentation to support your application. Although a simple cease-and-desist letter will usually shut down the site, another one will open up tomorrow. Our legitimate international students are having an even more difficult time getting to our university because it’s hard to tell the real paper from the fakes. I have a request by e-mail from a faculty member who is currently on a trip with 20 students somewhere in the middle of Africa. One of her students is becoming a behavioral problem and making life miserable for the other people on the trip. She’s e-mailing me in the middle of some outpost, to ask if she can put the troubled student on the first plane out of there. Today, I’m grateful for the speed of the Internet; other days I curse it. Describe your nonlegal or administrative duties. How much time do you spend as a manager of lawyers and staff? What are the top issues and challenges you face in that area? I spend about half of my time managing the attorneys on staff, as well as our outside counsel worldwide. I think the most difficult issue for me is drawing the line between lawyering and management. As the vice president, it’s easy for me to get so involved in the problem that I want to fix it myself. As the attorney, I know management should make the final decision. The tricky part for me is knowing where the line is, and sometimes it’s a little blurry. Which law firms do you or your department regularly turn to in various substantive areas? First and foremost, I look to Hogan & Hartson. Martin Michaelson has been representing higher education institutions for over 20 years. He’s been in-house counsel as well, so he knows what it’s like to be in my shoes. I need counsel who can give me practical and timely advice. When people ask me why I chose Hogan for a matter, I tell them it’s because Marty was the first person to pick up the phone in the middle of my crisis and say, “Mary, how can I help you?” I have a similar relationship with a great intellectual property firm out of Chicago, Fitch, Even, Tabin & Flannery. Their D.C. office is headed by Sherri Blount (formerly of PBS), and Ed Gray, a terrific trial attorney. Last, but not the least bit least, is my labor lawyer, Steve Semler of Ogletree, Deakins, Nash, Smoak & Stewart. Steve worries more about my labor matters than I do. I like knowing that when I’m worrying about a problem, Steve is probably doing the same thing. He’s committed and talented, and he’s always there when I need him. I get Steve with one call, not a summer associate. What kind of work do you send out? What do you keep in-house? My office is rarer than most in-house university counsel because we do a fair amount of litigation in-house. We tend to send litigation out only if the matter is extremely complex or a unique area of law. We buy hours of specialty time when we need the latest information on a legal counseling matter. We try to buy only partner time, since I have a wealth of help from fantastic law clerks sent by Dean Claudio Grossman at our Washington College of Law. I also select firms that are willing to work with my in-house attorneys. I don’t hand off a matter entirely to a firm. Usually, our in-house attorneys draft some of the pleadings and memoranda. Our clerks do some of the research. I’m only interested in firms that are willing to work with me. When I start work with a new firm, sometimes it takes them time to adjust, but our cases are so interesting, they seem to enjoy the project. And I get the benefit of knowing that my in-house attorneys have learned something that will serve the client well in the future.

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