Editor: Briefly describe the areas in which you practice.
Cotter: Our Regulated Industries Department includes both the Government Policy and Practice Group and our Health Care Group. The attorneys and non-lawyer registered lobbyists in the department have a very diverse practice. The Health Care attorneys represent a broad spectrum of clients, including facilities, practitioners and payors on federal and state issues, such as licensure and certification, managed care, financing and clinical research, among many others. In the Government Policy Group, my team covers a wide field of industries that are regulated by state and federal governments. Basically, if government regulates your business, we can help.
Editor: Your background includes service with the Michigan House of Representatives. Few lawyers in private practice have had an opportunity to see, close up, how laws are made. Talk about this experience and how it enriches your work.
Cotter: My role with the Michigan House of Representatives was as a legislative assistant; I wasn’t an attorney yet. While I was attending Michigan State University, I interned for some legislators and also volunteered on several campaigns. After getting my BS degree, I worked as a legislative assistant for the House Republican Caucus for a couple of years before I went off to the University of Michigan Law School. The Republicans were in the minority at that time, so it was a relatively small staff with lots of work to do. I was fortunate because I enjoyed research and writing and was able to prepare briefing papers for my legislators on a wide variety of subjects. It was exciting to be involved in policymaking on such areas as education, insurance, tourism and healthcare. Many of the legislators with whom I worked – on both sides of the aisle – were attorneys, and they encouraged me to go to law school.
During that time, I also had a great deal of interaction with lobbyists and with attorneys for corporations and law firms. I saw firsthand that being involved in drafting the laws that will affect your business is more fun and effective than waiting for laws to be enacted and then figuring out how to comply with or litigate them. On behalf of several clients, Dykema attorneys and lobbyists have been involved in many important pieces of legislation at state and federal levels. Active participation in the formulation of laws is the best way for any business to stay in the forefront, and, in fact, for some clients, legislative and regulatory work is our primary role. We monitor legislation and rules that affect their industry or business and jump into the fray when necessary, and we go even further for those clients by taking the lead for industry groups or trade associations to draft legislation, work with the legislative sponsor, and then manage the bill through the legislative process.
Other firm clients tap into our services on an as-needed basis to address particular problems or issues they face. It’s funny how many colleagues and clients think laws come from books. In reality, laws are developed to address situations, and the law is developed by people like us. For example, we secured language in federal legislation that required a third-party evaluation of a client’s state-of-the-art technology. The result was that, based on the study and additional government analysis, the National Highway Traffic Safety Administration proceeded to the rulemaking process to mandate use of the client’s technology.
Editor: Financing of political campaigns is another unusual area within your practice. Are the legal problems encountered in campaign finance principally federal in nature, or is there an important layer of those problems that gets resolved under state law? Is there a Citizens United equivalent under state law?
Cotter: Campaign finance is an ever-evolving body of law, and we’ve been firsthand witnesses to its development. In fact, Dykema represented the Michigan Chamber of Commerce in the famous Austin v. Chamber of Commerce case that was decided in 1990. As a summer associate for the firm in 1988 and then again after I started as a new associate in 1989, I had the good fortune to do some very basic work on the Supreme Court brief. It was pretty amazing for me as a young Lansing, Michigan attorney to say that the guy arguing the case before the Supreme Court was my boss. While we lost in 1990, we like to say that the Court finally got it right with the 2010 Citizens United decision, which overruled the Austin decision.
In any event, Citizens United allowed corporations and unions greater access to the political process when it found no compelling government interest for prohibiting them from using general treasury funds to make election-related independent expenditures. But with that access comes the need to participate within the rules of federal and state governments, and that’s where our clients look to us to help them participate effectively with complete compliance.
Editor: The so-called explosion of administrative and regulatory law in recent decades is often criticized. In your opinion, are we approaching, or have we perhaps already passed, the point at which the benefits to society of our system of administrative law are outweighed by the burdens imposed on private actors?
Cotter: This is a really good question. I believe that a certain amount of regulation is needed for the protection of the public. Government oversight is an important function to a point. I think regulations are problematic when they’ve been on the books for decades without an evaluation of whether they are useful, relevant or cost effective – or when new regulations are added without thought to how expensive they will be to implement and enforce, both by the regulator and by the parties being regulated.
In Michigan, shortly after taking office in 2011, Governor Snyder created an Office of Regulatory Reinvention and made it responsible for creating a more fair and efficient regulatory environment. Through the appointment of a number of advisory rules committees that were charged with making recommendations on rules administered by several state departments and agencies, the idea was to have those committees systematically review and make recommendations on the existing body of rules. I was appointed to the Occupational Licensing Advisory Rules Committee together with 13 other people who volunteered their time and expertise to do a deep dive. After months of work, we made 62 recommendations for changes to the existing occupational regulations. Some of those changes have been implemented through legislation or rule making. But, it’s fascinating to see how many occupations want regulations to stay in place – sometimes merely to keep others out of the business.
So, while saying “let’s get rid of some regulations” sounds easy, it is not. It’s not always the agency that is promoting a rule. Sometimes it’s Congress or the legislature imposing a need to develop new rules. Sometimes a party wants to be regulated to give it credibility.
Editor: In addition to healthcare, what are the firm’s capabilities on the regulatory side? You mentioned it’s a diverse practice.
Cotter: I’ll touch on a few of our practice areas: Our Energy Regulatory practice is well regarded and has a strong history of helping electric and gas energy clients fulfill their compliance and regulatory obligations in a cost-effective and efficient manner. Those attorneys regularly appear before state public service commissions, the Federal Regulatory Commission, and several other state and federal agencies as advocates for our clients. They are also heavily involved in legislative drafting and lobbying. Our Political Compliance team keeps abreast of the changing political landscape and how the regulation of political activity has grown in recent years. Every type of political initiative is under the microscope, and our attorneys guide clients through the maze of regulation and procedures, allowing our clients to focus on their substantive issues and fully engage in the political process. Finally, the insurance industry is one of the most highly regulated industries in the country. We work with the state regulators on multistate filings, rule development and product approvals. We also represent clients before state legislatures and the National Association of Insurance Commissioners in the development of laws.
Being with the firm for over 25 years gives me a historical reference of what my firm and colleagues have done. More importantly, we’ve responded to changing needs, so I know we’re poised to take on future challenges. Some of the practice areas we work on now didn’t exist when I first started, and I know we will continue to develop new ones, placing us on the ground floor of policy and law development as new fields enter the marketplace.
Editor: On a more personal note, do you have advice for young women lawyers, or young Hispanic lawyers, who face the daily grind of working their way up the seniority ladder?
Cotter: Every challenge is an opportunity to succeed. While we still have a long way to go in terms of diversity in the legal community, we have made great strides. When I entered law school nearly 30 years ago, there weren’t a lot of women and there wasn’t a lot of color. I still remember sitting in the lunch room in the basement of Hutchins Hall with a small group of friends and overhearing a couple of white men say that “certain people took their friend’s spot” in the law school because of affirmative action. They had no idea whether we were a group of four pointers who just happened to be women of color, but they felt it was okay to express their displeasure with our being there. My group talked about it and decided we would be their bosses – if we hired them.
I would also encourage women and minority attorneys to always present your best work and to be mindful of how you treat others. When you get an assignment, don’t give the assigner a draft. Make it a final product that you’d be happy to see published. It shouldn’t matter that the assignment comes from a second-year associate, a senior partner, in-house counsel’s newest attorney, or the corporation’s CEO. You treat everyone with respect so they can depend on you to produce great work.
Published December 11, 2014.
