Keeping up with the government maelstrom has been a full time job of late. For businesses to navigate and change the laws and regulations which govern their activities, they are in need of some prodigious legal expertise. Akin Gump is one firm which provides exactly that.
What is government regulatory law?
Alexis G. Guinan (counsel): Laws and regulations administered or enforced by a government agency.
Shea Boyd (associate): The average person might not realize how much their life is influenced by the decisions and “rules” created by the various federal and state agencies, from the technology they use every day to the practices keeping them safe as they walk down the street. Another lesser-known fact is that these agencies create and modify these rules with substantial input from the individuals and industries they seek to regulate. Good legal counsel can help inform and focus this input.
"My practice area, communications and information technology, is focused on businesses regulated by the U.S. Federal Communications Commission (FCC), which includes many more businesses than one might guess."
Mallory Jones (associate): Government regulatory law also involves advocating on behalf of clients for changes in the regulatory framework, including through comment letters, agency meetings, and other forms of agency engagement.
How do specialisms and different areas of work overlap?
Stacey Mitchell (partner): A broad-ranging regulatory practice is essential to law firms to assist a client across all aspects of their business. Any one client will have any number of regulatory issues; we overlap and collaborate all the time.
AG: I specialize in sanctions and export controls, which fall under the umbrella of international trade. My work frequently intersects with that of our corporate and financial restructuring groups, who engage us as specialists for their M&A work and credit facilities. On the M&A side, we conduct international trade diligence on the proposed target to evaluate the level of international risk associated with acquiring an interest in that target. We also review sanctions, export controls, anticorruption and anti-money laundering representations and covenants under multimillion-/billion-dollar loan facilities.
SB: My practice area, communications and information technology, is focused on businesses regulated by the U.S. Federal Communications Commission (FCC), which includes many more businesses than one might guess. I find myself working frequently with many other practice groups in the firm. One day I may be working with the corporate group on drafting an agreement for the purchase of communications assets; the next day I might be working with the investment funds group on understanding the impact of proposed rule changes at the FCC; and then I might round out the week working with our government relations practice to advocate for favourable legislation for our communications clients.
What challenges come with the practice?
AG: Sometimes it is difficult to keep up with political and legal developments that impact our practice these days! But this also makes working in international trade constantly challenging and interesting.
"The key to overcoming this challenge is staying organized and leveraging technology to make your life easier. This is not a law school class that I’m aware of yet, but perhaps it should be!"
SB: Because Akin Gump has such diverse clients, and the communications group intersects with so many practice areas, the range of issues on which you need to have the latest information is wide. However, as I have found with many things in law practice, the key to overcoming this challenge is staying organized and leveraging technology to make your life easier. This is not a law school class that I’m aware of yet, but perhaps it should be!
MJ: Some of our most challenging projects arise when clients have developed innovative pharmaceutical products that do not neatly fit within an existing regulatory category. These projects require creative thinking and advocacy work to develop solutions that both allow for appropriate regulatory oversight and ensure patient access to potentially life-saving treatments.
What roles do associates, partners, and counsel play in matters?
MJ: In general, with guidance from the partner, associates conduct research and draft work product, which can range from formal memos to slide deck presentations to bulleted talking points. Partners work with associates throughout the drafting process and provide feedback. Associates also frequently take an active role in strategy discussions with the partner and the client regarding the team’s approach to a particular matter. On most matters, associates have the opportunity to interact with the client throughout the project.
SM: Associates tend to research the law and identify grey areas. But as a partner, you talk with clients about risks and exposure, to ensure that the client remains in compliance, while meeting their business objectives. You’ve also got to be forward-looking to see what might catch people off guard.
AG: The partner will focus on communications with the client in terms of the scope of work and deliverables. The associate will perform the underlying factual and legal research and prepare initial drafts of work product. The counsel will oversee the associate’s work and act as an alternative point of contact for the client.
Can you tell us about a recent matter you worked on that you found notable?
MJ: I worked on the Akin Gump team that provided counsel to a pharmaceutical company bringing a first-of-its-kind digital version of an antipsychotic drug to market. The drug incorporates a tiny digital sensor embedded in the pill itself. When swallowed, the sensor sends a signal to a patch worn by the patient, which then relays the signal to a smartphone, confirming adherence to the regimen. I provided counsel to the client on cutting-edge issues regarding privacy.
"One of the many reasons that I enjoy government regulatory law is that it is constantly changing."
AG: I recently worked on a matter for a foreign conglomerate that was shipping agricultural products through a body of water that necessitated payments to a party that was designated by U.S. sanctions authorities. It raised questions of whether such payments were subject to U.S. jurisdiction (and, therefore, illegal), and also presented a significant policy question for the U.S. sanctions authorities given the level of trade that was occurring through that particular body of water.
What trends or factors are currently influencing the work you do?
SM: This current administration has been more focused on the trade sphere rather than environmental. That said, regulatory practices are not meant to have many fluctuations—the concept is for regulated industry to not have to readjust to every new administration that comes in.
AG: Unpredictability and increased sanctions activity as a result of the Trump administration. This makes it challenging, among other reasons, to advise clients with respect to risk associated with prospective business activities.
MJ: My work has been influenced by technological advancements in many aspects of the health care field, from pharmaceutical development to the provision of care through telemedicine. Indeed, health care reform will continue to transform how health care is paid for, delivered and regulated. Additionally, we are currently seeing increased congressional focus on privacy issues, and state legislatures have also been active in this area.
How do you see the practice evolving in the future?
MJ: One of the many reasons that I enjoy government regulatory law is that it is constantly changing. I am forced not only to think about how an existing or proposed legal framework affects our clients, but also to envision what the ideal legal framework looks like for a particular client and to strategize how we can help make that vision a reality.
SM: Environmental law is going to evolve around the need for sustainability and the scope of climate change. Some of this is already happening at the state level, though not necessarily at the federal level. This will include areas including drinking water and species protection, not just simply clean air—many aspects of the law will be modified to ensure resilience in the face of climate change.
"Find a professor at your law school who specializes in this area, and form a relationship with them. Take him or her out to coffee and ask them what they think you should be paying attention to."
AG: There are so many variables that feed into international trade law: foreign policy, national security, the administration, the economy, etc. It is tough to forecast! But with an increasingly global world, I imagine these areas of law will become increasingly prevalent and complex.
Where can new junior associates expect to be in five years’ time?
MJ: The possibilities are endless! As junior associates gain knowledge and experience at Akin Gump, they can expect to take a larger role in handling projects, develop meaningful relationships with clients and cultivate expertise in areas of regulatory law that interest them.
SB: Wherever you want to be. While this sounds like flippant advice, as a regulatory lawyer you are gaining the expertise that will allow you to pursue any path you choose, whether that is staying at your law firm, going in-house, transitioning into the government or forgoing legal practice for a more business-oriented role.
AG: Within five years, a junior associate would have been exposed to different areas of trade law (customs, policy, export controls, etc.) and begun focusing in one or two of those areas. A successful associate would be a go-to person for managing projects and client relationships for partners.
How can students keep up to date and get a head-start in the practice?
SB: The best thing that a law student with an interest in communications and information technology can do is to find a professor at your law school who specializes in this area, and form a relationship with them. Take him or her out to coffee and ask them what they think you should be paying attention to. Ultimately, this relationship could be more valuable than a subscription to Comm Daily, although you should probably get that as well.
AG: Doing coursework that covers international trade, researching a legal journal article on cutting-edge issues or assisting a professor in their research. Also, find people who work in international trade and ask them about what they do.
MJ: I would encourage students interested in government regulatory law to consider what topics most intrigue them (health care, environment, energy, international trade, etc.). Students should then spend some time familiarizing themselves with the key aspects of that field—get to know the major statutes, the biggest stakeholders and potential changes coming down the line.
What separates the Akin Gump team from its peers?
SB: One of the unique things that I have found about Akin Gump is our strong connection to government, which is particularly relevant to the regulatory practices. Whenever I have a question about a particular agency outside of my area of expertise, there is more often than not an Akin Gump attorney down the hall who worked there and can provide the type of insight into how things work that can’t be found in a Google search or the trade press.
AG: Akin Gump has a variety of regulatory practices: health care/life sciences, environmental, international trade, energy, etc. It is fairly common to work across practice areas on projects and leverage the expertise of colleagues in other practice groups. Akin Gump’s public policy arm also provides a window into changes in policy and the law that may have an impact for clients.