Think you’re too busy managing legal work to get involved in public policy? Think again. In this episode, Chad Golder, General Counsel of the American Hospital Association, shares why it’s important for lawyers (especially in-house counsel) to develop relationships with trade associations and share their company’s perspectives with policy makers. A former clerk to Justice Stevens, Golder shares perspectives on the court and what it was like to get feedback from Stevens’ beach reads.
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How To Build An Advocacy Practice In The Legal Department: Chad Golder General Counsel, The American Hospital Association
My name is Chad Golder. I’m the General Counsel of the American Hospital Association. A fun fact about me is that my childhood rabbi who bar mitzvah-ed me was the rabbi in Rocky III.
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On this episode of the show, I’m excited to welcome Chad Golder. He’s the General Counsel of the American Hospital Association. We’re going to spend some time talking about how it’s important for lawyers in-house and otherwise to get involved in the political process and especially if you’re in a regulated industry why working with your association is really a good idea.
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Chad, how are you?
I’m good. How are you?
I’m good. I’ve been looking forward to this. We saw each other not long ago. I was really excited that you were open to having this conversation because this is the trade association path, and how important that is for in-house lawyers is not well-known. This is a unique conversation. I’m excited to have it with you.
Trade Associations
We’re not going to do the whole career journey and wine through everything you’ve done, but I know you have done a lot of different things. You started your career in the US Supreme Court, which we’re going to talk about later. You went to a firm. You were in government at DOJ and then at the association. I want to know if you could talk about your transition, especially because this is an in-house audience. You went from government to a very unique in-house role, but an in-house role nonetheless. Can you talk about that transition and how it’s different from some of the other roles you had?
Yeah. You said it exactly right when you opened this. A lot of people don’t know about trade associations. I certainly was not the most familiar with them. They don’t teach about trade associations in law school. It has turned out to be a fabulous role. In fact, it’s almost a combination of what I did in government and what I did in private practice. It has the advocacy and political policy dimensions that I did in government when I was working on the ACA and healthcare-related issues there.
I also consider myself still having clients. The one benefit is I don’t have to bill hours, but I do still feel like I have my clients, and those are my members. All of the 5,000-plus members of the American Hospital Association are my clients. While they may not call you at midnight the way they did when they were directly paying your bills, they’re your clients. We’re trying to do our best to promote the interests of hospitals and our membership.
You have a board. People may not know that about trade associations. The board are representatives of the members. Is that right?
Absolutely. We have a very active and engaged board. It’s a large board that includes a diversified selection of the membership. It’s not just the largest or most profitable health systems. It’s a real mix. Some of that’s a function of what the AHA membership is like. We’re not like other trade associations, which may have 10 or 15 big members. We have 5,000-member hospitals. If we’re going to represent the entire hospital field, we need to gain insight from a broad cross-section of the membership. The board is engaged in providing us with that.
That’s really important. I always try to give people a little splash of healthcare in this because that’s the place I live. When you say different members, there are critical access hospitals and tiny rural hospitals that have different challenges than a big multi-state system or academic medical center. It’s the same industry and the same field but different pressures.
We have systems that are multi-state. We have what we call for-profit or tax-paying hospitals that are publicly traded. We have very small rural hospitals that are stand-alone. They all have common issues, and we try to represent their common issues, but some of them have common things from different perspectives. It’s a really important balance.
Responsibilities
As the general counsel, I’m assuming you’re supporting the board. Are you a corporate secretary also?
I am.
That’s yeoman’s work. That’s thankless work.
It’s new here. It was moved into the general counsel’s office.
In addition to supporting the governance function, what does the general counsel of a trade association do? What are your primary responsibilities?
There are a number of different buckets. One is the standard. You are the general counsel of an organization. It’s all of the internal management functions, contracts, audit and compliance, and all of those things that you might think of as a standard general counsel’s office. What I think a trade association has, unlike other companies, is we have a huge advocacy function. We are fundamentally here in large part to advocate on behalf of the membership.
In that respect, it’s bringing affirmative litigation against the government. It’s drafting comment letters with the legal issues that may arise from proposed regulations. It’s working on legislation. It’s dealing with agencies like the FTC or the DOJ when they’re pursuing anti-trust initiatives. There really is a huge advocacy component. That’s why I said earlier that it’s very much like when I was in government. To do this job, you need to have an advocacy, affirmative litigation, law, and policy approach.
You’re using a lot of tools in the legal toolbox. You’re not just filing lawsuits but looking at it from a broader policy standpoint.
Exactly.
Public Policy Process
For the in-house lawyers who may be reading, I came from the government before I went into law school. I have always had an awareness that being involved in the public policy process was important. As a general counsel, your plate’s very full. Everybody and their brother, especially 5,000 clients, everybody’s coming at you. We have a lot of inbounds. I’m hoping we can talk about why it is important for GCs or folks in the legal department to get involved in their trade associations or the public policy process.
In the hospital field or the healthcare space, this is a heavily regulated area. Sometimes, it amazes me the range of issues for which hospitals are regulated. At the start of my career, I worked at WilmerHale. My first client was Duke University. We represented Duke against some of the unindicted lacrosse players. I thought, “A university general counsel deals with so many issues.”
I think hospitals deal with more, whether it’s antitrust, labor, or all of the Medicare and Medicaid regs. The number of agencies that come across my desk is outrageous. That’s not even including various state law things that sometimes get on our plate. We are here to serve the membership and be the tip of the spear on all of these regulatory and public policy things.
General counsels are here to serve the membership and be the tip of the spear on regulatory and public policies. Share on XIf you’re a general counsel and that’s not the thing you think about day-to-day like, “How is this random regulation from this agency I’ve never thought about going to impact me?” We’re here for you. For example, the FTC put out its non-compete regulation, which I know got a lot of attention publicly in the legal field. That’s the kind of thing that will have a huge impact on hospitals in all sorts of ways that they may not even have thought of.
One of our big focuses was how it differentially impacts for-profit versus non-profit hospitals. You as a GC, maybe you had a lot of time to think about that. I’m not sure you did, but it’s something that we have to spend a lot of time thinking about because you can’t. You pay your dues, and that’s what we’re here for. I can give you a dozen examples of that, but that’s why you should get involved.
Something happened where I was thinking I could see that we might see regulation in a particular area. I had this moment where I was like, “I could hold my breath and wait to get walloped by this, or I could call Chad or someone at CHA and say, “Let’s put this on your radar screen for the legislative session. Why should we be on the receiving end? Why don’t we get proactive about things?”
We’re always trying to think of ways to do that. We have a number of tools at our disposal. We’re not always reactive. We’re trying to think about how we can shape the law. We file all sorts of amicus briefs on these issues to shape the law in ways. If you are involved in a case or you know that there’s a case out there that the outcome might impact you, pick up the phone and call us. We’d be willing to think about an amicus brief. There are a number of different things that trade associations do to make lives easier for our members however we can do so.
That’s good advice. I’m sure you feel this way too, that you’re torn in a lot of different directions. You’re dealing with a lot of inbounds. It almost feels like this is an extra thing. To be like, “I’m going to call Chad and say, “We need an amicus brief on blah,” that’s effort, but it can help us in the long run, so it’s worth the effort.
Benefits
I took on our government relations function about a few years ago. Our CEO was really funny at the time. He was like, “You already have a more than 1.0 job. Why do you want this?” I was like, “I like to be proactive. I want to get ahead of things.” He was like, “You can do it, but I want you to be aware that it is another job in and of itself,” and it is. I’ve been surprised at the interest that the associations have had in the technical experience that I and other GCs have. Maybe you could talk about that. You’ve convened a group of us before. Talk about how that benefits you as the GC to hear from others.
It goes back to what we were talking about earlier. I’m sitting here at my desk in Washington. I see something come out, let’s say, from HHS. I have an instinct that that’s going to affect hospitals in a certain way, but I’ve never been in your seat. I don’t know the day-to-day impact of what a proposed rule will have. It’s really important to hear from the people who are doing it on the ground every day.
You know about it. We sued the office for civil rights at HHS related to a piece of guidance, a rule that they put on their website relating to online tracking. It sounds very complicated, but ultimately, it’s when a hospital has third-party apps like Google Analytics or Google Maps on their website tracking what sites the public is visiting on their public-facing website. HHS SOCR said that violates HIPAA.
We had an instinct that this was a big deal because all businesses across the country, whether it’s the New York Times or Amazon, are tracking to make their websites better, but HHS said that violates HIPAA. I had an instinct, but I needed to talk to GCs, compliance folks, and marketers at hospitals to really understand the monumental impact that this would have and the costs that it would inflict on hospitals. There are an endless number of issues where having people in the field who you can talk to to gut-check makes all the difference. We represent the membership but we’re not on the ground or on the front lines like you are.
Amicus Briefs And Strategic Litigation
You really hit the point. Healthcare is so regulated, and there are a million opportunities for us to give you technical input about all of the different regulations that are going to make the business more expensive. You mentioned amicus briefs. This is a show for all lawyers, not just healthcare lawyers. As you are working on briefs that benefit the field, you’re engaging outside counsel. I wonder if we could talk because this is a very uniform topic that applies to everybody, how you go about selecting counsel for those amicus briefs.
We operate in two ways. One is I want to hire the best appellate lawyers for the particular court.
Not just amicus briefs but also your strategic litigation. I was too narrow as I asked you that, but engaging counsel generally.
It’s the same. We want to hire the best lawyers for a particular challenge, whether it’s a district court challenge, an appellate brief, or a Supreme Court case. Also, recognizing that sometimes, there is a technical component to these things where it would be ideal if the firm had some technical capacity in it. For our OCR case, we hired a firm where I had clerked with the lawyer who would be handling all of the various administrative procedure deck stuff and all of the substance of that.
We also had excellent HIPAA and privacy lawyers. When they put their heads together, they came up with a really great set of arguments that helped us win decisively in the district court. I like to keep a wide bench. I don’t want to be reliant on one firm. I like to give people different opportunities. I like to think about gender and racial diversity. I’ve tried to promote some younger women who worked with my wife, who is also a lawyer, in the SGs office. I give them some opportunities.
Ultimately, for us, one challenge we face is conflicts. We are often litigating against the interests of the big drug and insurance companies. The big drug and insurance companies, they’re called big for a reason. They make a lot of money, and they have a lot of legal representation out there. The conflicts are significant. Finding the right firm for the right set of issues is sometimes a challenge for hospitals. That’s another reason why it’s important to keep a broad and wide bench but also try to find up-and-comers.
I like to hire my friends. I like to hire the people who’ve impressed me. Maybe I’m going on too long here, but I’m a pretty active GC. I miss litigating to some extent. I have my own views on how things could be written. I like the back-and-forth. When I clerked for Judge Garland, his line for clerk hiring was, “I need someone who can tell me that I’m wrong without making me hate them.” I feel the same way about outside counsel. I want you to push back against my crazy ideas, but I don’t want to hate you. That’s often easier coming from a friend or someone you’ve worked with. I’m sure everybody thinks about it that way, but I do think because I’m more active than many or most, that’s important to me.
There are a couple of things I want to grab there. First of all, the conflict issue comes up for us all. Many times, I feel like the firms feel like they can work through the conflict, but from my standpoint, I feel like if a firm has a significant practice representing insurance companies, they are maybe not at their core going to push super hard for my hospital clients. Even if they’re able to put up the ethical wall, there can be a real appearance issue. Have a little bit of a reservation. I don’t know if you’re dealing with actual or perceived conflicts as you’re scouting out counsel.
Often, they won’t even take the case.
You’re never going to spend that much money.
We have a robust litigation budget but I’m not giving them millions of dollars to do document review ever. I’m not giving them tens of millions of dollars on the patent litigation. I don’t think they’re going to even get into that set of issues with the AHA.
It’s not worth it.
That’s fine. I trust that all of your counsel are vigorously fighting for you. There are no ethical questions. They’re not in the back of their head thinking about them, or maybe they are, but I’m going to trust that lawyers are good and they know how to do that. On the off chance they are, why would I even want to get involved? I’ll be like, “There are a lot of great lawyers out there. I’m going to go with the ones that don’t have conflicts, but I’ll come back to you.” There’s one firm out there that did a couple of amicus briefs for us. This is someone who worked with my wife. She works at a big New York law firm. She said no three times because of conflicts, but we’ve finally found a case or two that we can work on together. I’m thrilled with that. I’m not going to hold it against you.
RFPs
Do you do firms? It sounds like you use your network quite a bit to land the right counsel. Do you have a firm pitch? Do you do RFP ever?
Generally, it is not for amicus briefs because you know who’s out there, but for our affirmative litigation, yes. I’m a big believer in RFPs. I want to see what you’re going to do. I want to see the team. We probably have 1 or 2 cases going against the government at any one time. We have one that is on appeal, but I don’t think it’ll go very far. That’s a multimillion-dollar commitment. We want to make sure we’re getting the best. I’m a huge believer in RFPs.
What do you look for when you’re evaluating those RFPs? I talked to a couple of other guests about this. Aarash Darroodi, who’s the General Counsel of Fender Instruments and Eric Lentell at Archer Aviation both talked about what is a good and bad RFP response. Do you have any advice for the outside counsel audience?
I’ve never thought about it. One is I want to have an understanding of how you’re going to litigate the case. I want to see how you’re going to understand the issues. I have a gut feeling going into it because I’m pretty active. You don’t need to surprise me, but I want to see that you’re going to litigate it the right way.
I assume that there is a baseline of solid litigation skills going into it. Otherwise, I wouldn’t send you the RFP. It’s what else you bring to it. I want to see the team. There’s a budget component. We are very careful spenders of our members’ dues money. I want to see that. Maybe it’s because I’ve been in law firms too much. Maybe I’m wrong about this, but I want to see your associate bench that’s going to work on it because I know they’re going to do a lot of the thinking. They’re going to do a lot of the first drafting. I want to see what associates are going to put on that case and the quality of those associates unless I know that you, as a partner, are going to be far more involved. It’s all of those things.
What you said about hiring people that you know or you know what work product they can deliver gives you a lot of comfort that you’re going to get a good product, that goes back to a networking tip. I tell a lot of people, “You can’t be successful in the legal profession but certainly in an in-house role if you don’t have a network.” I need to know who to call when X happens.
For me, it’s particularly true because the range of issues is so outrageous. Whether it’s ERISA or some random provision of a particular statute, there’s an expert out there. I may not know that expert, but I need to find that expert sometimes because I can’t do it. Knowing who you can ask to find the right person, how important that is.
With a range of issues lawyers face, they sometimes need to find experts in a particular statute to help them out. Share on XI would bet being in DC, since so much of your litigation work is averse to the government, is a good place to source those people.
That is what DC lawyers do every day. You wouldn’t believe the random expertise that people have, like tax-paying bonds or all bond issuance law. It’s all these things that are out there that I know nothing about. You need to find the one person who has spent their career, thankfully, thinking about that and will knock your socks off.
Insider Tips
You have to run the Rolodex and see who knows who. I want to talk about DC a little bit. I was in the state government before I went to law school. I thought about going to DC and then got lulled by the warm weather and the palm trees in Los Angeles. Especially on the West Coast, DC, the political environment seems so much like an insider’s town. For people who may feel disconnected from the political process or from our earlier conversation, what do GCs at companies need to know about networking in DC? What do they need to know about agencies? Is there anything that you can give us, like insider tips, to your town?
The insider tip for the GC community is if you are not here, don’t think you can do it on your own. It goes back to what we were saying. There are people here who have spent their lives in these agencies. People talk about the revolving door like it’s necessarily a bad thing. I don’t think that. I wouldn’t think that having gone through the turn once.
When you say revolving door, what do you mean?
It means people who have worked in government but are in private practice offering their wisdom and experience to you. The government has its weird quirks and operates in its own way. If you’re a counsel who knows how it works, you’re going to offer a lot of services to your clients. You mentioned this earlier. I clerked for the Supreme Court, but I clerked in 2006 and 2007. Two-thirds of the court has turned since I was there.
I know generally about the Supreme Court. I read a lot of opinions, but I wasn’t there when Justice Kavanaugh, Justice Barrett, Justice Kagan, and Justice Sotomayor were there. I like to hire some of the younger clerks who are coming out who have a perspective. The same is true for government agencies. I don’t think there’s anything wrong with that. People will say, “If you can afford to pay these people, you’re getting an advantage.” It’s good government. If you know how the system works, you’re probably going to produce better public policy.
That’s, for sure, true. I got the impression you thought that that was maybe a bad thing or distasteful to hire somebody who’s been through the revolving door. For certain projects like regulatory action or government investigations, I always look for somebody who’s been there and done that.
I don’t think it’s bad, but you hear this on the left and the right. It’s the swamp people. There is something called the Revolving Door Project, which is a left-wing version of this that attacks people who have worked in private practice and went back into government. It works the other way too. Let me make that clear. A lot of people in government have never spent time in industry.
Amen. That’s why there are so many regulations and rules.
If you don’t know how the people you are regulating or the businesses you are regulating operate, you’re at a disadvantage because they’re going to have all sorts of practical implications. Going back to an earlier conversation, I should add that is another value that trade associations offer. We do have long-standing trustful relationships with a lot of regulators. When it works right, they call us before putting something out. When they’re thinking about a policy initiative, they say, “How would this affect your field?” It’s symbiotic, and that’s a good thing. What you don’t want to do is be taken by surprise. It may be distasteful to some, and I would fully agree.
How else would it work? I don’t understand. You’re going to have a fresh class of new college grads or new law school grads that are going to go run the government.
There is something to the critique, I’ll be perfectly honest. Not everybody has a trade association. The uninsured patient doesn’t have a trade association. You can pick any number of industries. The poor person who lives next to an environmental waste site or something like that is not getting the same representation. That’s true. It’s important for policymakers to have their interests in mind, but it’s also important for both sides to understand how everything works. Maybe this is the naive West Wing version of how Washington should work, but I believe in it. I am still a fan of the show. In its best form, the government can work that way.
Government Experience
That’s a great take. I like that a lot. You shared your own experience being a little distant from your Supreme Court experience. If we’re looking to hire a law firm or a lawyer who has government experience, a lot of people have been out of school for a long time. Somebody worked in the Clinton administration or whatever. What’s more important? Is it the position they had? Sometimes, people are former assistant secretaries. Is it how recently they’re out of their government role? Does it matter?
It depends. There are ethical rules in place where you can’t work in your agency for a period of time right after you leave. That’s important. You shouldn’t have inside information. You can’t work on things that you worked on. It depends on the issue. Sometimes, there are many wonderful Clinton administration lawyers who have been out for a quarter of a century or more, have since been working with the agencies for 25 years, and have developed a reputation, knowledge, and experience on both sides. There may be things where someone more recent may understand how an agency is thinking about an issue. Often, you’ll find that law firms have a mix. You have to do it on a situational basis.
Maybe this is too specific, but if somebody was trying to hire firms with these government alums, what are the types of questions you might ask to kick the tires?
I’d be like, “Here’s the issue, X. Here’s where we want to get to. What’s your strategy for getting there? What do we need to be thinking about? What’s the best argument to persuade this? Who is the decision-maker? I think it’s person Y, but maybe it’s not. Maybe it’s someone below them on the org chart. Am I right about that? Who do we need to persuade? How do we best persuade them based on your knowledge, experience, and understanding? What facts do you need to know to better develop a strategy?”
Public Policy Lobbying
I’ve been involved in certain legal matters where we had both a litigation strategy and then we also had a public policy lobbying strategy. AHA is out there. You’re pounding the pavement. Do you have experience working with contract lobbyists? Do you have any tips for GCs who might be involved in that?
Yeah. That’s all we do. I consider advocacy to be a big-tent term that includes policy, lobbying, federal relations, communications, and law. It really works best when we’re all working together to attack a problem with all of our different perspectives. That is something we do particularly well at the AHA. I put litigation at the very end. Litigation is a failure of the process.
Sometimes, we have no choice. You want to influence and persuade before you’re forced to sue. We at the AHA are not afraid to sue. We’ll sue where we have to. Before you get to the place of suing, you are submitting comment letters, making legal arguments, making policy arguments, and working with the Hill to have them register their views or try to persuade them to register their views on things. For us, I call it five fingers of the fist. All of those things are put together to try to achieve what we can.
Supreme Court
It feels like a different thing. It’s something that GCs need to be aware of and get involved in. You don’t have to go knock on doors. You can rely on your trade association for that. I do want to talk a little bit about your Supreme Court experience because you’re part of a very small elite group of folks who have worked there. I did a stint in our Missouri Court of Appeals, which was eye-opening, to see how the judges talked about things and have even a small imprint on the state law. Do you have any stories you can share about that? What was that experience like?
I probably can’t share stories, but I loved my job. I’ve had wonderful luck in my career, but I peaked at 28. That’s the best job I’m ever going to have. I clerked for Justice Stevens who was a wonderful human being, justice, and mentor. He was 87 when I clerked for him. He lived until 99. I joke that if you’re a federal judge and you want your pencils sharpened and put in a particular position, that’s going to happen because everything revolves around you.
He was easygoing. You would sit and talk about cases with him. The best was when he lived part of the year in Florida. We’d communicate by phone or email. Sometimes, he would mail the briefs back to you and you’d get sand coming out of them because he’d been reading them at the beach. I don’t think you live to 99 without having a pretty easygoing look at the world. He cared passionately about the law. He is one of the most underrated justices around. For me, it was a fabulous, needless to say, once-in-a-lifetime learning experience.
Were you in awe walking into the court every day?
Yeah. It’s your workplace, but you do walk up those steps and you’re like, “I’m there.” You’re working on really important things and entrusted with a lot of responsibility.
Also, you’re 28.
What did I know? Having someone like Justice Stevens there, who was extremely engaged, he did the first drafts of his opinions. We read every cert petition. I don’t want to call him a backstop because he’s the boss, but knowing how engaged he was made it a lot easier for a 28-year-old. You weren’t going to screw up the whole legal system.
Do Supreme Court Justices have career clerks? In the court I was in, there was a career clerk and then they would have 1 or 2 newish grads that were younger clerks.
No. It is all a new set of clerks every term. It is a new set of 4 for all 9 justices and then 1 for the retired justices every term.
I don’t think you peaked at 28. you’ve got a great job.
Thank you.
Pump-up Song
I’m really impressed with the work that you do. You see, somebody with a sophisticated litigation eye and public policy eye is looking at all this. I’m thrilled to be connected with you. To close this out, I ask everybody the same last question. You alluded to Justice Stevens having some lighter parts of his life. What is your pump-up song?
I’m a child of the ‘80s. It’s Welcome to the Jungle by Guns N’ Roses.
That’s awesome. That’s a must. Thanks for being in the show. I really enjoyed it.
It is my pleasure. This is a lot of fun.
Important Links
About Chad Golder
Chad Golder became the General Counsel of the American Hospital Association in November 2023. Prior to joining the AHA, Golder was a partner and founding member of Munger, Tolles and Olson’s Washington, D.C. office. He served as Deputy Associate Attorney General at the DOJ, where he worked on complex constitutional, statutory, and administrative law issues affecting multiple sectors, including health care.
Prior to serving in that position, Golder spent four years as an assistant United States Attorney in the Eastern District of Virginia and more than two years as counsel to the Deputy Attorney General. Earlier, he served as a law clerk for Associate Justice John Paul Stevens of the U.S. Supreme Court and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.
