Insights from 3M GC Ivan Fong about Embracing Opportunities

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Transcript

In-House Legal: Insights from 3M GC Ivan Fong about Embracing Opportunities – 1/28/2016

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Randy Milch: Welcome to another installment of In-House Legal. My name is Randy Milch and I am very happy to be with, Ivan Fong, the senior vice president of legal affairs and general counsel of the 3M Company. Ivan has built a distinguished career in the law, from a big law partnership to senior in-house positions in some of America’s finest legal departments, all punctuated by stints of public service at the department of justice and in the department of homeland security. Ivan, welcome to In-House Legal.

Ivan Fong: Thanks, it’s good to be with you.

Randy Milch: It’s very, very good to be with you too. I want to take a minute and go over your background for our listeners. You have quite a distinguished background. You started off as a chemist, a chemical engineer. Did you know when you were at MIT getting your undergraduate and your master’s degree that you wanted to go into the law or were you thinking about a science career at that point?

Ivan Fong: So it’s a question that I think about a lot because most of the things that I’ve done in my career were not planned at all, and this is an example. I grew up in an immigrant family and so my parents were scientists and their friends were scientists and so I grew up not knowing any lawyers and no one in my family to this day is a lawyer. So I went to MIT thinking I would be an engineer because that’s what I decided to major in. And it was maybe over the course of my junior or senior year that I started to realize there was more to life than engineering. And really, I credit a professor of mine who taught a course on the Supreme Court who after the course really encouraged me to think about law school or public policy school. And he was the first person who planted that seed that I then pursued. I was very active in the student newspaper so I knew I liked to write. So at the end I decided to apply and if I got in, that would be great. If not, I was already on a track to get my masters and possibly get a PhD. So this would have been a turn but it wasn’t something that I set out to do and then it happened. I tell people it’s the second best decision I made going to law school, I’m very happy as a lawyer. The best decision I made was marrying my wife.

Randy Milch: And you have that in appropriate order, Ivan, I can assure you that having your wife, I can realize that you like being married way up. So you go to Stanford Law School, you’re president of Law Review, you clerk for two tremendous judges, Judge Mikva and Justice O’Connor, correct?

Ivan Fong: Correct.

Randy Milch: And then you have to choose the course of your legal career and you go into biglaw, you go to Covington. What was your thinking about that? Do you think that’s an important step for folks?

Ivan Fong: It depends on the individual, of course. I’ve had three kinds of paths in mind. One was a traditional private practice path, but we’ll get to this later. I was very interested in public service, so I thought after clerking, going into the government is not a bad career path or option. And either public interest or teaching was something that appealed to me. And at the end of the decision making process which of course my wife played a critical role, we decided that since we had just started a family, as a law clerk you don’t make that much money. This was way before the bonuses you see now for law clerks. It was important basically, as my wife put it, to get a real job. So that’s what led me to think about going to a law firm. And once I made that decision, I interviewed in Washington, in California, primarily. There were a few other places I loved and ultimately I decided I liked both the practice in Washington as well as the people in the firm that I met and ultimately the kind of practice that I could build at a firm like Covington.

Randy Milch: And did you center your practice on your scientific background? I know that you’re a certified patent attorney. Was IP part of your practice at COvington or what did you center in on?

Ivan Fong: It’s a very interesting story because it was not at all the way you may think it was planned. So harkening back to the story I told about taking this class in college that changed my life, the advice I got then – which is the advice I applied when deciding where to practice and who to practice with – is choose the person, not the subject matter area. So when selecting classes, take classes from the best professors, because a great professor can make a dull subject interesting, but a bad professor can make the most interesting subject dull. And if you apply the same principle when looking for a job – again I had the luxury of having some choice and I understand that not everybody is in that position. But if you do have that option, choose to work with people who are first of all, great at what they do, and take an interesting from teaching people from whom you can learn and are people who you respect. People who practice law in the way you would like to practice law. So as a result, yes, of course I wanted to practice in areas that would take advantage of my engineering background, and environmental law was one such area. So that was an area of practice. But the secondary practice was not something I had planned and yet was one of the best decisions I had made. There was a partner at Covington & Burling named Chuck Ruff who was a Watergate prosecutor, had become president of the DC Bar, later became White House Counsel; really an icon in the Washington DC Bar. And so I was immediately attracted to him. He practiced white collar criminal law. I loved criminal law and criminal procedure and I ended up working quite a bit with Chuck Ruff. I learned so much from him and I know we’re going to get to this. Today, when I think back on the experiences I had in my current job doing and knowing how to do internal investigation and focusing on compliance and white collar issues was one of the most important experiences I could bring to the jobs that I’ve had since then. The interception with technology is that a lot of the clients were – at the time – pharmaceutical or medical device companies and so was very helpful for me to be able to explain to an assistant US attorney or an agency lawyer how the technology worked and how the people interacted in such a way that told a story about what happened. So it drew upon my interest and background in journalism, actually, to tell a story about what happened as part of the internal investigation. So that was a very fortuitous turn in the career. I also did a lot of appellate work which was relevant to my background as a law clerk. But increasingly, I did what then was not really called e commerce but more high tech issues that were first amendment encryption cases that were bubbling up so I got attached to those. It really was a very broad based litigation white collar criminal practice and it wasn’t until the very end of my time at Covington where the large firm started to get more involved in patent litigation. And they noticed my background and said, “Ivan, would you be interested in building a patent litigation practice at the firm?” And the firm has been very good to me and I of course said sure. So I took the patent bar, passed the patent bar – which, by the way, I don’t recommend if you can avoid it – but it was great. I was there to try to build patent litigation practice at a time when not very many large firms were doing that.

Randy Milch: Of course, patent work has taken so many turns in the intervening years as you and I both know and the possibility of it being a real drag on productive efforts at companies but at the same time trying to defend those rights is critically important. It’s a big public policy issue that we both played around in, I know. So you’re a partner at Covington working in patents and other areas, and at the tailend of the Clinton administration or near the Clinton administration, you become the deputy associate attorney general. How did that transformation occur?

Ivan Fong: Well, again, it was not planned. In fact, I had made a commitment to build the patent litigation practice and I figured it would take me more than five years to do that and I was only in about year two or two and a half when somebody that I met during my interviews called me and this was somebody who was at the time managing partner of a firm in Los Angeles whom I had met. And we had this standard interview but had since then not spoken with one another. We did have a few things in common, we both clerked at the DC Circuit. He had gone to Stanford as well. I had followed his career, he apparently followed mine. In any event, he called me and said, “I’m going to be in Washington. I’ve just been nominated to be the number three person at the Department of Justice.” So there was the attorney general who was Janet Reno, the deputy attorney general, Eric Holder, and he was going to be the number three. “Would you be interested in having breakfast?” So I said yes, of course, I’d love to see you. So we had breakfast. Long end short of it is he said, “If I’m confirmed, I will have the opportunity to hire a deputy or two and I wanted to know whether you were interested.” So I go home, I tell my wife. She doesn’t talk to me for a couple of days because this would have been a very big pay cut. But again, following the advice of working with terrific people, this was somebody whom I respected, his name was Ray Fisher. He then went on to be a Ninth Circuit Court of Appeals judge and I knew a number of the other senior leaders at the Department of Justice, all terrific people. So it really was an opportunity that I did not seek but it was something that I was very honored and pleased to have the opportunity to do.

Randy Milch: And while you were there as the deputy associate of attorney general, what areas of the associate attorney general’s office did you have particular responsibility?

Ivan Fong: So again, by this time I had decided that to the extent it was going to be an arch to my career. It would be about law and science and technology and policy. So I naturally gravitated to what was then a very new thing, the internet, as well as my traditional experience in environmental law. So the Department of Justice has an environment and natural resources division so I handle a lot of those matters. A lot of civil division issues, large procurement disputes, other kinds of disputes with the government. We had a number of very big antitrust cases – this was the time of the Microsoft antitrust case, so I got involved in that case. And don’t forget, this is the time of the impeachment of the president, so a number of very difficult constitutional law, white collar criminal type issues where normally the Department of Justice represents the government and the law enforcement interest. Here we had a special prosecutor, an independent counsel who wore that hat. So we represented the other interest of government. In particular, I worked on the secret service argument that secret service agents should not be permitted to testify in response to an independent counsel subpoena. But that is all to one side. I’d say that the bulk of what I did had to do with technology related legal issues.

Randy Milch: And I think it’s fascinating that the Department of Justice at the time, when the internet issues were just bubbling along. We spend so much time today thinking about the potential problems associated with the internet and it’s amazing to think that only 15 years ago, it was such a newer part of our lives. But what were the types of issues at justice that you were dealing with as in the associate attorney general’s office particularly in the internet and unlawful conduct involving the internet?

Ivan Fong: So you’re right. It’s been a fascinating journey and it’s harder to imagine or remember the time when email was new, when being able to go to a chat room and have anonymous communication and the fact that this was becoming more of a ubiquitous technology and it’s really created concern in the administration generally that we wanted to balance both the positive effects. So we wanted it to grow and become the vehicle that it is today for commerce, for education, for lots of socially useful purposes while at the same time ensuring that technology can be used for good and for bad that people who had malicious or other intents would not be able to use it to the disadvantage of the public. So there was a very strong interest in the law enforcement community to analyze how this new technology would affect traditional, legal doctrine and processes. So as you alluded to, the White House created a task force – this was an executive order to create a task force – to look at the challenge of unlawful conduct involving the use of the internet. So I was very heavily involved in representing and editing and writing a portion of the report that essentially said that these new technologies could be used for good and for bad, that there were a lot of physical analogs so that a lot of existing legal doctrine could still apply. For example, fraud remains fraud whether you use the telephone or mail or email. And so some law doesn’t really need to change. At the same time, there’s a second category where yes, if there are new ways of committing crime – using, for example, computers as the mechanism for disruption or theft of trade secrets – that creates new kinds of conduct that Congress and others need to address. And then the third piece is that law enforcement may need additional tools to ensure that what used to be a very limited way to commit a crime. So if you had to physically distribute, say child pornography, you could only collect so much in your basement or garage and you had to mail it out. Child pornogaphy on the internet was growing by leaps and bounds and there was a concern that this was a new mechanism of distribution of information that was very difficult to get our hands around. So it raised a lot of very difficult and interesting issues that I had the great fortune of being able to think about and write about and ultimately give some advice about.

Randy Milch: And I think that it’s fair to say that your authorship of this report, The Electronic Frontier: The Challenge of Unlawful Conduct Involving the Use of the Internet in 2000, seemed to set you up pretty well for your next job. From that, you went in-house. I think people are very interested in how people choose their first in-house job. I assume that you followed the theory or the analog to the theory you had of the most interesting professor by looking at a very interesting and high powered legal department as a reason to go in-house rather than to return to Covington.

Ivan Fong: That’s right. I didn’t know it at the time but this was either in the middle of o rte beginning of a significant shift in the legal profession for in-house legal departments. My own experience, once again, was fairly gratuitous in happenstance. I happened to know people who knew the general counsel at GE who I didn’t know, but it fell by the name of Ben Heineman who again, at the time, unbeknownst to me, had really built a first class legal department at GE. He apparently had been asked by Jack Welch – at the time CEO of GE – to help develop a strategy to transform GE  into an e commerce or internet company. The fear at the time was that there were all these .com’s and they were going to ultimately take over the large company marketplace. And so Ben Henneman said if we’re going to make a big push into e commerce, I better find an e commerce lawyer, so that’s when he called. And his pitch was pretty simple. He said if you were in a law firm and you were told that all the most interesting question of a big, complex client like GE were endorsed to have, you would have died and gone to heaven. You have this amazing client and it’s yours and you get to work on all of their most interesting issues. That’s the proposition that he basically offered. He said come up to Fairfield, Connecticut for a day, meet some people, and I’ll tell you more. AT the time, working in-house was not on my radar screen. As you recall, I had made a commitment to continue to build the patent practice at the law firm. So my default assumption was to go back to the firm and pick up where I left off. Unfortunately, fate intervened. I did go up to Connecticut and met an amazing group of lawyers Ben had assembled. As I said, law firm partners who were the best in their field and I saw how right he was and is about the value of being close to the client, understanding the business that’s technology, understanding the strategy, and really being more a part of the decision making of a very large, interesting client. So that’s what sold me. It was a bit of a sell on the family front to move from Washington. We had just bought a slightly larger house that to this day, my wife still refers to as her dream house that we never got to live in because we ended up having to move to Connecticut.

Randy Milch: And you spent time at GE in a number of positions culminating as the chief privacy officer and then really culminating as the general counsel as one of the GE subsidiaries. How did you chart your course internally at GE? Was that something that you spent time thinking about? I think that it’s important for people who are in-house to remember that they are the masters of their own careers and I’m interested for folks who’ve had multiple internal jobs in the same place how they charted their own course.

Ivan Fong: That’s right, I agree with you about being master of your own destiny. The caveat I give whenever people ask about my career journey is I don’t know to what extent my story really applies to others, but I’ll be happy to tell the story. So when I got to GE, new position, which I think it has it’s pluses which is you get to create and define your role. But at the same time it placed a premium on my being able to get out and meet people and develop relationships and really swore a goal of having a vision where we had e commerce issues solved and that we knew what we were doing when it came to things like clickwrap legal agreements to privacy issues to IP issues. This was a time when there were questions about where you could patent softwares and other IP new applications. So a lot of incredibly novel, difficult issues to which there were no clear answers. So it was a nice transition from a policy making role. I then brought in to what I did. So you were right, I was at GE for six years. The first three years or so, the e commerce issues really evolved to becoming privacy issues because privacies then became a much more significant part of not only the external landscape but how the company internally thought about how do we protect data, whether it’s customer data, medical data, employee data. We were dealing with the European Union, so there were many challenges there in negotiating and trying to figure out how to comply with the EU data protection directive. And then one day, during a review meeting with my boss, the general counsel, he asked whether or not I think of myself as a generalist or a specialist. And I thought back on my career and I thought, well, as a law clerk you’re a generalist. In a law firm, I was a generalist commercial civil litigator doing some white collar work. At the Department of Justice, clearly I was a generalist handling everything from Native American issues to environmental issues to antitrust to technology law issues. So really, my job at GE was the first real specialist job I had. So I answered, “I really liked being a generalist.” He then said, “Well, I think you should think about becoming general counsel of one of the GE businesses.” I said, “Fine, I’m happy to think about it. My only condition is I can’t move because I’ve got kids and our oldest was in high school at the time.” So he came back to me and he said, “Here are three GE business leaders. Go talk to them and tell me what you think.” So they were all in Connecticut, I met them, I really bonded with one of them, and it was in the area of commercial finance. These were all GE capital businesses. And I told the general counsel I have very little financial services background. And he said something again, life changing for me, was don’t worry, you’ll figure it out. And what he meant was you will have people on your team who are subject matter experts. You will learn what you need to know and that the reason I’m putting you forward or giving you this opportunity is to stress you and because what’s really important is to put somebody who is smart and who has judgement and who will learn the substance to deliver outstanding legal services. So that was my first big break in the sense that I was a new general counsel, but it was a great platform on which to learn how to be a general counsel. I had a reasonably sized legal team. I was not far from headquarters so I could keep in touch with the others in the corporate legal department. So it was really a wonderful opportunity for me to learn how to be a general counsel.

Randy Milch: And you quickly had the opportunity to be the chief legal officer at Cardinal Health. How did that transition occur?

Ivan Fong: So once again, unplanned. I had planned to stay at GE. GE was very good to me and had planned on transferring me to one of its industrial businesses to be a general counsel. So things were going very well when a recruiter called. The recruiter said, “I have a job for you to be general counsel of a healthcare company, a top Fortune 20 company.” I said, “No, I’m not interested, I’m very happy at GE. They’re in the process of relocating me to Florence, Italy – how great is that – to be general counsel of its new oil and gas business, which as a chemical engineer was just about the perfect fit.” Long story short, he persuaded me that it might take a while for me to become the general counsel of GE, that these opportunities to become public company general counsel are not that frequent, that I should really spend a day in Columbus, Ohio. So I did all of that, I met the people at Cardinal Health. I discovered here’s a really great company. Healthcare is 1/6th of the US economy, indeed is a Fortune 20 company, and we fell in love with Columbus, Ohio as a great place to continue to raise our children. So long story short, I made the move to Ohio to become the general counsel of Cardinal Health.

Randy Milch: Your career has so many highs. Cardinal Health, going back as the general counsel of the Department of Homeland Security and once again dealing with so many of the national security issues and cybersecurity issues that you had to face. In fact, I think you and I had our first telephone conversation when you were general counsel of the Department of Homeland Security. Let’s shift the conversation a little bit and talk about across the time that you have been in-house and also at Covington. I know the pro bono activity has been incredibly important to you and your career. How do you encapsulate for those who remain skeptical about in-house counsel participating in pro bono? How do you encapsulate your response to that and why it’s so important for in-house to do their part for pro bono work?

Ivan Fong: I think it’s a personal decision at the outset. But I think I’m such a proponent and supporter for all of the same reasons that in a law firm there’s a great tradition of doing pro bono. I think I start with the position that practicing law is a privilege and the state grants a license to give us this privilege. And part of our responsibility to ensure access to justice and to ensure that people receive services is to give back to the community and one way we can do that through our specialized training and knowledge is through pro bono work. But almost as important, if not more important, are the experiences that you gain. I think I tell in-house lawyers that you learn a lot doing pro bono. There’s such a great need in the community. I know you and I had talked about the fact that thousands of people every day face legal issues. They may not even realize they are legal issues, whether they’re eviction or family or children, law issues, debt collection, and something like 80% of the need is unmet. So for all of those reasons, it’s a great thing to do and I think to me it’s very important for the corporate community to set a good example. I know, for example, that 3M has a very significant community affairs, community giving effort. And so we are able to be part of that by doing pro bono work. So it aligns perfectly with the larger corporate value in supporting the communities which our employees work and live.

Randy Milch: I agree 100%, Ivan. I also think fundamentally, if you believe that society needs the rule of law to smooth out the rough edges and you accept the figures that you pointed out that so many people have legal issues today and disproportionately the poor and the disadvantaged do not have the type of representation that’s necessary for them to be fully functioning members of our society because of prior convictions or absence of resources or any number of disadvantages that folks have. You can’t, on the one hand, believe in the rule of law and on the other hand be parsimonious when it comes to providing folks the legal representation they need to be ap art of society. So I hope that you continue the great efforts at 3M that I know you have to provide legal assistance. Ivan, thank you for your comments on pro bono, which I know you’ve maintained as a principal part of your general counselship at 3M as you did at Cardinal and I just want to applaud that. I know how important it is to society for there to be equal access to justice. And I want to thank you again, Ivan, for being with us on this edition of the Un-Billable Hour on The Legal Talk Network.

Ivan Fong: Thank you, Randy, for the opportunity to share some thoughts and thank you for doing this. I wish you every success in the new year.

Randy Milch: And you too, Ivan.

Ivan Fong: Thank you, great talking with you.

Randy Milch: And you. That’s been our show on The Legal Talk Network. This is Randy Milch. Join us again for another great edition of In-House Legal.
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