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Q&A with the EIC – Mary E. Kennard

Mary E. Kennard is American University's vice president and general counsel, and a former ACC Board of Directors member.
AMary Kennard true “Philadelphia lawyer,” Mary was born in the city of brotherly love. While she received her undergraduate degree from Boston University, she returned home to complete her JD at Temple University. Although she thought she’d serve her hometown in a different role upon graduation (she once had plans on becoming the city’s mayor), a career in education seemed almost destined for the lawyer, lecturer, and educator. Mary soon found herself in top positions with several institutions of higher learning — including her first general counsel role.

“I was only 33-years-old when I became the GC at the University of Rhode Island. I was very young, and also by myself — I didn't have any other attorneys working in the office. Luckily, the general counsel for the University of Connecticut was always willing to take a call from me.”

It’s safe to assume that Mary answers very similar calls in her professional life. Having held many positions over the years — including her first in-house job with the National Association of College and University Attorneys (NACUA) and her current position as vice president and general counsel at American University — she has a unique perspective not only on in-house practice, but also on the world of academia, within the area of board governance, and on women in the profession. Here, she takes on these topics and more.  

A professional journey: Education and the law

ACC: Was the law your first career ambition?
Mary: I never really thought much about becoming a lawyer. My father’s best friend was a famous lawyer in Philadelphia who ultimately became a Third Circuit Court judge —Leon Higginbotham. As a kid, I really didn’t know very much about what my Uncle Leon did. All I knew was that he had a lot of papers on his desk and my cousins and I were forbidden from playing in his study — and that he always kept a big bottle of Maalox right in the middle of the desk!

I actually decided to go to law school in Philadelphia because I wanted to help my hometown. I got a degree in urban planning from BU and I thought maybe I’d be the mayor of Philadelphia. I went to law school to learn the law, not to practice law. But then when you get to law school, they make you want to be a lawyer. I went on to clerk at the DA’s office in Philadelphia, the US Attorney's Office, and two firms before I graduated from law school. Then I did what the law schools expect you to do: I went to work for the big “Main Line” Philadelphia firm.

ACC: What drew you to the field of education, and in turn in-house practice?
Mary: I became a Higher Ed lawyer sort of accidentally. I was working in that big Philadelphia Main Line firm, and I hated the environment there. So I went back to Temple to see my mentor, Peter Liacouras, who was the dean of the law school when I was in school, but by then was Temple’s president. He said, “Look, if you don’t like the law firm environment, maybe you want to think about teaching law.” He went on to suggest that I get an LL.M. from George Washington University in international and comparative law.

I then asked for a transfer from the Philadelphia office to the firm’s DC office, and I went to GW at night. While I was at GW, I still hated the law firm life; I went to the career placement office at GW’s law school. I saw an ad for the National Association of College and University Attorneys (NACUA), I applied for the job, and I got it. At NACUA, I met attorneys all around the country who were working in the Higher Ed practice, and I found their work to be interesting, challenging, and dynamic. Once I left the firm, I never looked back.

ACC: Hindsight is often 20/20. That being the case, is there anything that you know now, that you wish you knew during your first position in academia?
Mary: Yes. That same uncle told me that I should put more money in my retirement account. I didn’t follow that advice, not at least in the first couple of jobs. But the other thing that he told me was that I should write more. He credited the opportunities he received after retiring from the bench to the fact that he had written more than just his court opinions. Therefore, I work to follow that advice: I try to write something that gets published every year, usually on legal or higher education issues.

ACC: Building off that, you’ve had a varied career where you’ve had to balance the demands of being a university administrator with the many hats in-house counsel are required to wear. What aspect of that balancing act has been the most challenging, and on the flip side, the most rewarding?
Mary: One of the great benefits of being an in-house counsel is that you can be the architect of the strategy. You can be in the deal from its inception. And I really like the fact that I’m able to create new things and then develop the documents that go around that, arrange the people to make it happen, and find the money to get the deal done. I don’t think you get that in the firm.

ACC: Which I’m sure creates its own set of challenges.
Mary: There is a downside to that. When you're in-house, you also have to live with the decisions that you make. Therefore your advice has to withstand the test of time because you have to live and work with these people every day. Unlike outside counsel who can walk away and find another client, I have one client. I can’t walk away. My advice has to be solid…practical.

ACC: You’ve been an administrator, lecturer, development officer, and now CLO in the university setting. In your current position with American University, what does your typical day look like?
Mary: I rarely have a typical day. Every day is new and different and that’s actually why I liked what I saw about the practice of Higher Ed law, even 30 years ago. I’m lucky if I actually get to, never mind get through my to-do list in the day. Because a university is 24/7. We have faculty and students worldwide in 40 different world capitals programs. I mean anything can happen in the day at any time of the day. So, I usually have a plan of what I’m going to do, but that usually gets blown up as soon as I open my email in the morning.

ACC: Is there an example of something recently that you’ve had to reshape your day around, which required your full attention?
Mary: We've had a lot of staff, faculty, alumni, and student reaction to the shooting of African American men across this country; hate speech, and a lot of other ugly things that are going on in our society. Well, that shows up right on our campus.

ACC: How do you approach issues like that as general counsel?
Mary: Let’s take a critical issue that’s just happened in the world, for example a shooting on another campus. I might have the responsibility to do a couple of different things: It might be to review the press release that’s getting ready to go out. It might be to ensure that the emergency plan is in place. It might be to have a conversation with an aggrieved student or parent, or it might be to talk to board members who are concerned about what is or isn’t going on. It might be to help draft a document or a policy that's getting ready to go out to community. In-house counsel can be called to respond in a variety of ways.

"I worry about the kids in my school. I worry every Thursday night through Sunday night about some young woman who might be the victim of a date rape. I worry about a young man who’s injured while attending a study abroad program."

ACC: You’re a frequent lecturer on the conference circuit, speaking on issues in the law, board operations, higher education, and more. What about the classroom — have you considered teaching again, if you do not currently?
Mary: I made it a point to teach in every school I worked in — I taught paralegal studies at the University of Pittsburgh, and in the business school at the University of Rhode Island. Since I've been at the American University, I’ve taught at the Washington College of Law at AU.

I’m really excited for the spring 2017 semester. I’m going to teach an online class, which I’ve never done before. I’m taking my regular higher education law class and teaching it online to JD students. And the online platform is really extraordinary: We use a product called D2L, which stands for Desire2Learn. While I'm having a discussion with the class, for example, I can Skype another general counsel and ask them what they think about it.  We can actually be talking about a former case of theirs, and I can bring in that counsel electronically to talk about the backstory. Online law education has endless possibilities for what can be done in a classroom.

ACC: My favorite question for GCs and CLOs is, “What keeps you up at night?” In your position, what is it that keeps you awake at night?
Mary: I worry about the kids in my school. I worry every Thursday night through Sunday night about some young woman who might end up in the wrong bar downtown, or who might be the victim of a date rape. I worry about a young man who’s injured while attending a study abroad program. Because I’m a parent and I’ve got two sons, I take the care of people’s kids as an important and serious assignment.

ACC: Those are very real concerns, especially as a parent. In your role as general counsel, what can you do to safeguard the students and the school?
Mary: I make sure that in our new student orientation we talk to students about risks. We’re a campus in an urban community, and the campus does not have gates so we can't lock everybody up at night. And our students come from all kinds of backgrounds and experiences. Therefore, one of the things that I do is to try to make sure that the information, whether it’s oral or the written communications that we provide to students, accurately portrays things that they need to know and be concerned about. I also work with our campus police department. We have search and seizure in dormitories, and disciplinary cases to deal with. So my legal work shows up in a lot of different ways: from the time that we advertise for you to come to school, to orientation, to the discipline, and all the way to when they walk across the graduation stage.

ACC: This is a transformative time across industries, with advances in technology — as well as new and changing legislation — creating opportunities and challenges for all business professionals, including in-house counsel. What do you see on the horizon for in-house practice? What about in the area of higher education?
Mary: The internet is really changing how we practice law and do business. I’m spending a lot more time worrying about our trademarks and reputation worldwide, and just merely getting out correct information to people who need it in order to make decisions. The speed of the internet makes it much more challenging to ensure that the correct information was sent and received.

I have an attorney who specializes in intellectual property — I wouldn’t have had an IP specialist 10, 15 years ago. However, our reputation, brand, logos, and marks are really important, especially to a university. A lot of what distinguishes our institution from another is our reputation, which can easily be damaged online.

ACC: There have been recent news reports of institutions losing accreditation. I know this isn’t an issue a university like American has to deal with, but in general, what are the primary risks facing institutions of higher education, and what advice do you have for those tasked with protecting against them?
Mary: Looking more largely, I think our biggest challenge in higher education is in adjusting to the fact that minorities are now the majority. That means that Latino students, African American and Asian students — students from many countries — are coming to our campus in record numbers, and they need higher education as an industry to do a better job for them. And although we do a lot with diversity, we haven’t figured out how to make higher education a fully inclusive environment, which takes work and time and money. It takes getting rid of unconscious bias, and providing more financial aid to students. It takes more promotional opportunities for minority faculty and staff, and it takes thoughtful and caring boards and university presidents to really encompass a diverse and inclusive environment.

Board operations a governance

ACC: You recently published a “Legal Primer for Board Operations” for the Association of Governing Boards (“AGB”) with coauthor Lawrence White. Can you tell me a little about the primer and why it was important for you to create guidance in this area?
Mary: The primer is designed to provide legal information on a variety of topics to help board professionals, as well as primarily nonprofit board members, do their work. A lot of material in the publication is actually applicable to for-profit as well as nonprofit boards, but it was really designed to provide guidance and assist in the work of the board professional and the maintenance of the corporate record.

I wrote the Primer because I was giving a speech every year to a group of board professionals about how a board executes its fiduciary duty. And every year I received great questions from the audience, which led to my outline becoming more fulsome. One thing led to the next, which ultimately resulted in the publication of the Primer. It’s not enough to say to a board, “Look, you have a fiduciary duty.” What does it mean to have a conflict of interest, and how do you work through a problem that’s a conflict? When do you have to disclose what the conflict is? Can you talk about something during the meeting and then disclose your conflict, or must you disclose it before the conversation even starts? Can you vote, can you not vote, or why it's important to document a decision about the compensation of the executive team? Why is a committee agenda important when you're trying to later defend a decision? The Primer was designed to answer these questions, to be very practical and to help primarily non-lawyers see how their fiduciary obligation gets executed in a corporate setting.

ACC: While the Primer offers guidance to legal counsel, it does focus a great deal on board chairs and board professionals. What is the key takeaway for members of the board?
Mary: The main takeaway is that if you’re serving on a board, you might have a particular expertise, which is what brought you to that seat. However, your first duty and responsibility has to be to the corporation and for the benefit of the corporation. You can't forget everything you know when you walk into the boardroom; you have to keep front-of-mind fidelity to that corporation.

ACC: As general counsel, what is the most important thing you need to know, and/or do, when communicating news (good or bad) to the board?  
Mary: Tell them as early as you possibly can, and in a way that all can understand.

"I think the primary challenge facing most boards is getting highly qualified board members who will take the time to read the materials and be informed in making their decisions."

ACC: In your opinion, what is the primary role of the board, and as a BOD member, what is it that you look for in communications from the executive suite — the GC/CLO, CEO and CFO?
Mary: A board member’s primary duty is to ensure that the board is looking at policy and keeping their fingers out of management. So, the “noses in, fingers out” rule, that’s first. And when the C-suite is communicating to the board, I think it's important for them to present the information in a clear and cogent way, with all the facts.

ACC: What are the primary challenges facing non-profit boards, and in what ways do governance and operations vary in relation to for-profit boards?
Mary: I think there's not much difference at this point. I served on the board of NASDAQ-traded banks for 15 years; I didn't really see much work that went on that was different from the work that the American University board does. Other than the Securities and Exchange filings, I haven’t seen much difference between the for-profit and nonprofit boards. I think the primary challenge facing most boards is getting highly qualified board members who will take the time to read the materials and be informed in making their decisions.

ACC: What advice do you have for a general counsel who wants to join a non-profit board? What about advice for a new board appointee?
Mary: They should buy my book!

Women in-house and in academia

ACC: There’s been lots of discussion about women and equal pay lately, especially in an election year. Do you have any thoughts on the “pay gap” and what women can do to address it?
Mary: It’s disgraceful. It’s about time we got paid in the way that we deserve. And it’s extraordinary that in 2016 we're even still having this conversation!!!

ACC: In terms of women in the profession, and I’m including in-house practice and higher education in this question, do you believe the playing field is evening out?
Mary: I really don’t see the progress that should be made at this point in time. I’ve heard a million excuses why this guy needs to be paid more money — no. And I think women are reluctant to say, “I’ve been doing three jobs and you’ve been paying me for one. I’m not going to do that anymore. You’re going to either pay me for all three jobs or I’m leaving.” I’m as guilty of that as anybody. We need to speak up. Ask for the pay we deserve before they give us more work to do. And be willing to walk if they don’t.

"We've got about 100, maybe 150 women who are general counsels in the Fortune 500. That’s not 50/50; something’s wrong."

ACC: How can women elevate their careers, and what role does the legal profession as a whole play?
Mary: I think it goes back to the challenges in higher education. It’s one thing to bring somebody into the legal practice, firm, or in-house counsel office, but it’s another to treat him or her with equality and inclusivity, irrespective of their difference. I see women partners in firms that aren’t getting the opportunities or the business that they should. We’re making some headway both in higher education and in-house, probably more so in higher education with women general counsel. About 45 percent of colleges and universities in the United States have women general counsel, but that’s probably because it’s higher education — that's definitely not the statistic in for-profit corporations or the Fortune 500. I think we've got about 100, maybe 150 women who are general counsels in the Fortune 500. That’s not 50/50; something’s wrong.

ACC: One way young professionals attempt to advance their careers is through mentorship. Do you have mentees, and further, how important is it for organizations to have mentorship programs?
Mary: I mentor lots of different people at different stages in their career, and not just in the legal profession. I have students and former students that I mentor, and I seek out my own mentors. I also manage the HR department for American University, and we just kicked off a new mentorship program for our managers. Therefore, I think it's vitally important to have somebody who at least knows a little bit about how the road goes ahead of you, who can tell you or help you make good decisions about your career. And you can outgrow certain mentors, which means you have to keep replenishing them with people who can help you blaze through the next trail.

ACC: We often learn from those we are teaching and vice versa. What’s something that has been passed on to you from a mentor or mentee that you share with others?
Mary: Well, because I’m spending a lot of time with the 18- to 30-year-olds, I think the thing that I’ve learned is don’t get complacent — there are all kinds of new technology and cool stuff out here and opportunities, so I try to not let any grass grow under my feet. They help keep me connected to the new, even if it’s just a new hairdo or fashion.

Evolving roles

ACC: The role of in-house counsel continues to evolve, as does the legal landscape, with laws and regulations constantly changing. What do you think has led to this evolution, and what does the future hold?
Mary: The value of in-house counsel is becoming more apparent. When I became an in-house counsel 30 years ago, there weren’t as many in-house counsel in Higher Ed or in corporations. But because there are so many decision points that have to be made in the course of the business, whatever the business is, you need counsel that’s a partner with you in developing the strategy for how the business is going to move forward. Lawyers are great thinkers and excellent writers, so the combination of what you learned from law school makes you an exceptional partner to the business.

ACC: General counsel have earned their seat at the executive table. How do they keep those seats, and what advice do you have for those waiting to sit down?
Mary: Be dependable. You can always bank on my advice; I don't leave my managers hanging. I’m with them to the end of the problem or the project, and I circle back around to make sure that whatever advice, documents, materials — whatever it is I’ve given them — is working for them. I have to be a woman of my word.

Parting words of advice

Mary: What I finally figured out is that it’s not the deal or document, or the big transaction that is the hallmark of a great legal career. The hallmark of a great legal career is the people you served and how you’ve served them.

Getting to Know Mary E. Kennard

What book are you currently reading?
Think Like a Freak. It’s written by the guys who wrote Freakonomics.  

What’s next for you?
I’m not sure, but it better be fun!

What advice did you learn in law school that you still apply today?
I learned that it’s important to be nice to everyone, especially the court clerk.

Name one person, living or dead, you’d love to have a cup of coffee with?
Jesus Christ of Nazareth. I just want to know, “Am I doing okay?”

About the Authors

Tiffani Alexander is the editor in chief of the ACC Docket.

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