On the front line

After 20 years as the U's head lawyer, Mark Rotenberg will step down this summer.
University of Minnesota General Counsel Mark Rotenberg in his office Thursday, April 18, 2013, at McNamara Alumni Center.
May 02, 2013

His kids were staying in a different hotel room to avoid any distractions, and his wife had to persuade him to go to sleep — he’d defaulted to a law school lifestyle and stayed up into the early morning to practice his points.

It was 2001 and the night before one of the biggest days of Mark Rotenberg’s life: arguing before the United States Supreme  Court.
Few lawyers ever make it to the U.S. Supreme Court — even fewer university general counsels.

As the University of Minnesota’s head lawyer, Rotenberg’s the legal watchdog both off campus — arguing in prestigious courts — and within University walls, making sure administrators are in line.

After more than 20 years of leading an office that's won most of its cases, he'll leave this summer for Johns Hopkins University.

And while he’s argued before the highest courts of the country and state in his time here, day to day he’s been the legal adviser to four University presidents and countless regents as they govern the multi-billion dollar company that is the University of Minnesota.

The OGC evolves

In fall 1992, Rotenberg was having breakfast with then-Law School Dean Bob Stein at the West Bank Holiday Inn when Stein had to run.

He was headed to a search committee meeting for the University’s next general counsel.

As the pair shook hands, Stein imparted Rotenberg with a lasting goodbye.

“You know, the general counsel job at the U is the best law practice job in Minnesota.”

That stuck with Rotenberg as he drove back downtown.

And on the last day possible, he sent in his résumé.

Stein said there wasn’t much question that Rotenberg was the top choice.

A couple of decades and hundreds of lawsuits later, Rotenberg said Stein’s words have proven true.

In that time, though, the office itself has changed.

Since Rotenberg’s arrival, it’s grown to 18 lawyers whose 2012 base salaries totaled more than $2.3 million.

The University’s reach has spread to more realms — like government-funded research — but the school gets sued less.

The creation of the OGC in 1981 was part of a nationwide explosion of colleges building up internal legal armies. As university activities became more complex, so did potential legal issues.

But the University’s legal team does what many at other colleges don’t — it goes to court.

While many choose to farm out court cases, the University often sends its own lawyers to argue — saving money and attracting top talent.

“That changed the character of the office a little bit,” said Mark Yudof, the University’s president from 1997-2002.

“It made it a little bit easier to attract good lawyers,” he said, because often the best lawyers want some time in a courtroom.

For the first time in recent history, the University is getting sued less.

Part of that could be due to a doctrine that gave the University its own grievance process for faculty and staff.

It could also be the University is getting a reputation — one of winning, something Rotenberg describes with pride.

The University won nine out of every 10 cases that went to court in the past decade.

 

Walking a fine line

When he’s not arguing in high court or amid multi-million dollar negotiations, Rotenberg’s the man with the answers for the University’s 12 regents and University President Eric Kaler.

Lately, the questions have been about constitutional autonomy, a complicated issue he’s passionate about.

Angry about reports of administrative bloat, state lawmakers this year have pushed the boundaries on that autonomy, trying to attach strings to the billions in state funds the University relies on. At the same time, though, its autonomy prevents state interference in University governance — the University, after all, was here first.

Rotenberg also ensures the athletics department is in compliance with NCAA rules — and many say the late-’90s basketball academic fraud scandal is the biggest challenge he’s faced.

After the scandal, in which athletes’ advisers were writing papers for them, reporting lines changed so the athletics compliance director reported to Rotenberg instead of the athletics director, Stein said.

In interviews with Rotenberg’s colleagues, many said his integrity stood out.

Because of the nature of his position, they couldn’t elaborate on instances when someone needed to be put in line.

Those occasions “were very sort of heated episodes,” said Board of Regents Chair Linda Cohen

“I think it’s not great for anybody to have them sort of revisited.”

Stein, now a law school professor, said Rotenberg walks a fine line, keeping people legally in check without restricting their activities too much.

“He needs to encourage people and support them,” Stein said, and “at the same time, identify areas that we can’t go.”

Regent Patricia Simmons said Rotenberg was sensitive to sometimes competing interests.

With complex personnel issues, for example, “you want to give everyone the benefit of a doubt but yet also make sure you protect the students and the University,” she said. “And that protection includes image and reputation.”

Cohen said she felt she could always count on Rotenberg to get back to her with answers to her questions — “unless he’s in the middle of a Vikings negotiation or something,” she added.

And she’s right — Rotenberg gets lots of phone calls but knows which ones he has to answer.

On a recent afternoon in his office, his iPhone rang. After checking who it was, he put it down.

“It’s not a regent,” he said. “I’ll let it go.”

While Rotenberg is in good standing with many of his bosses at the University, there are still some happy to see him leave.

Rotenberg is the figurehead in times of crisis, for better or for worse.

Some say he’s leaving the University without properly handling charges of research misconduct and with a lack of transparency, especially in the Dan Markingson case. While being a participant in a University drug study in 2004, Markingson committed suicide. In the years since, bioethicists have raised serious concerns about whether Markingson was able to consent to participate in the study.

In an email to Kaler, bioethicist Carl Elliott requested to speak privately with the president because Elliott believed Rotenberg’s role in the investigation was inappropriate.

Rotenberg isn’t apologizing for how he handled it and said the University has investigated the matter enough.

What some see as secrecy, he said is attorney-client privilege — and “some people will not be persuaded” otherwise.

 

Victories

A troupe of general counsel folks and Rotenberg’s family traveled to Washington for his 2001 U.S. Supreme Court appearance.

The subject matter of the case itself was not particularly fascinating — a dispute over Congress’s role in Minnesota employment law.

But appearing — and winning — before the nation’s most powerful judges is one of Rotenberg’s proudest moments.

In another case a couple years earlier, his success was measured in dollars.

Rotenberg was part of settlement negotiations with Glaxo Wellcome (now GlaxoSmithKline) over a University-created AIDS drug.

The University sued the pharmaceutical giant for royalties, saying a University researcher patented a compound used in the blockbuster drug. Glaxo said the drug was made independent of the researcher’s compound.

Early in the case at their North Carolina headquarters, Glaxo roughed up Rotenberg and his team, saying the University’s claims were no good.

After a day of that, Glaxo offered a settlement of about $12 million.

On the plane home, a fellow University lawyer was giddy at such a good offer after just a day of negotiations.

But Rotenberg wasn’t going to give.

“I knew at that time that there was something very big underlying this particular set of patents,” he said, “because if they would offer us that kind of money first trip out to corporate headquarters, I suspected that there was going be a much larger recovery.”

That in mind, University lawyers altered their strategy and “decided to really work the case up,” he said.

After more negotiations, the University did settle — for $300 million. That’s since grown to about a half-billion.

“That was a huge battle royale,” he said.

 

At home

Once, on Passover vacation in Miami, Rotenberg left days early to fly back for an early morning meeting about the light rail with the governor and the University’s president.

One New Year’s Eve, he spent the night sitting in a rental car in the driveway on the phone for negotiations for a coach’s contract.

On a more regular basis, Rotenberg stays late at his Morrill Hall or McNamara Alumni Center offices — but his wife, Amy Rotenberg, said that’s more him than his job.

“The one time that he was on time was for our wedding,” she joked.

Once he does get home, he can’t just switch off his work role.

“It’s not so much that he brings it home and talks about it with us,” she said, “it’s that we’ll be sitting at the dinner table and the phone will ring.”

He tries to avoid working at home and has other ways to ground himself outside the office.

He runs in his Lake of the Isles neighborhood. He used to scuba-dive and play tennis, but those hobbies were sacrificed as his job demanded more.

He meets with a rabbi regularly to study the Torah, and he’s a member of the Rabbinical Assembly’s committee on Jewish law.

Rotenberg’s three kids — ages 15, 23 and 26 — have shared him with the University for most or all of their lives.

Their interaction with work has grown from vague — “some basketball player did something bad, and dad took care of it,” son Mathew remembered thinking — to curious, asking about a case after seeing their father in the news.

And while those relationships have changed as the children have grown up, some never will — once when he was interviewed on TV, his mother called and asked, “Why didn’t you shave?”

 

Conclusion

On a recent Wednesday, Rotenberg and a team from his office gather around one end of a long, corporate-style boardroom table.

They work their way down a laundry list of issues Rotenberg wants to resolve before he leaves.

One by one, he announces the next steps.

It could be a “one-on-one” with Kaler or meeting individually with the regents to brief them on an issue.

At today’s meeting, there are a few unusual items on the agenda — Rotenberg’s going- away party, which is sure to attract some of the most powerful law professionals in the state and an inventory of which pieces of his office furniture are his to take to Baltimore or stay at the University.

Rotenberg already has an assistant at Johns Hopkins and a Maryland high school picked out for his son Max.

And so, after 20 years, he has to pick what he’ll get done with his limited time and what he’ll let go.

“I’m gonna pull that off of here,” he says of one issue. “Because I don’t think there’s anything else I can do.”

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