Rainmaker Q&A: Cooley's Michael Rhodes (Law360)

Michael G. Rhodes is a partner in Cooley LLP's San Francisco office. He was chairman of the firm's national litigation department from 2008-2013 and is one of the most widely known and admired Cooley partners.

Rhodes represents technology and Internet companies in IP, privacy and commercial cases. Representative clients include eBay, Facebook, Google, Nintendo, NVIDIA, Wikimedia Foundation, LinkedIn and Sony.

In 2011 and 2012, Rhodes was named to the list of the Top 100 Lawyers in California by The Daily Journal. Law360 named him an MVP in the "Privacy & Consumer Protection" category for two consecutive years, a feat achieved by only three other attorneys in the United States. In 2010, Rhodes was one of 16 lawyers named as an attorney of the year by The Recorder for high-profile achievements in court. In 2013, Chambers USA selected him for its exclusive rankings in the areas of intellectual property and business litigation law, highlighting his "renowned ... privacy practice" and "notable [IP] litigation skills." He was also recognized individually, among others in Cooley's litigation department, in Benchmark Litigation Legal Guide as a Litigation Star. Rhodes was named a "Leading Trial Lawyer" by Legal 500 in its 2013 edition, recognizing him as a "highly experienced trial lawyer on major cases, both commercial and patent" and as an "exceptional strategist, who is very effective in the courtroom." In 2013, Mr. Rhodes was named an IP Star for his patent and trademark contentious work by Managing Intellectual Property magazine, as well as selected to the Intellectual Asset Management Patent 1000 list published by IAM magazine, an honor that recognizes the best IP and licensing attorneys in the world.

Q: How did you become a rainmaker?

A: After four years at a very large and prominent law firm, I decided that I wanted to work in the technology field. In the late 1980s, the Silicon Valley firms were pretty small by today's standard. I joined Cooley with the idea that representing technology startups and the venture capital funds that financed them would give me more direct access to key client decision makers much earlier in my career than if I stayed put and continued to work on very large teams of lawyers for institutional clients. Put simply, I was convinced that the Silicon Valley practice afforded more opportunity for me to build my own client base.

Early on, I focused on working with a couple of key business partners, earning a reputation for handling and trying any and all manner of cases — ranging from IP to commercial to employment to securities. That allowed me to try a lot of cases early on, across a range of issues. I modeled myself after the Valley business partners who had a stable of VC and serial entrepreneur clients that they represented over and over. By the late 1990s, when the Internet was really coming of age, I was fortunate to get an important case for eBay involving one of its core business model protections — the Communications and Decency Act Section 230.

At the time, the scope of that immunity to technology platforms like eBay, which only host third-party-originated content, was not settled. The senior in-house lawyer came to a hearing in 2000 to watch me argue two motions — motion to dismiss and class certification. The tentative ruling was against me on both counts (denying our motion to dismiss and certifying the class). When we left the hearing, the court denied class certification and granted our motion to dismiss. The case went up on appeal and is widely cited as one of the key early Section 230 cases (Gentry v. eBay (2002) 99 Cal.App.4th 816). That led to me getting some publicity in Internet circles. And, so, by that time, I had staked out emerging Internet and tech-based business models as the target client audience I wanted to serve. And, I started doing more and more work for eBay, which in turn led me into a number of other clients in the ecommerce, Web, digital media and ultimately social media space.

At the same time, I focused on two specific practice areas that were key to the core client vertical (Internet-based businesses) I was pursuing — IP and consumer (privacy, ecommerce, data protection) class actions. Over the past dozen years, the Web has evolved to sophisticated business models involving user generated content, and mobile and cloud technologies. My early experience as one of the key litigators in the space has given me a leg up on attracting the best and most interesting Web- and tech-based clients today. So, in sum, I think the end is a product of an early decision to think about my practice in two key ways — to target a specific client audience and focus on one to two practice areas that will be most needed by that audience.

Q: How do you stay a rainmaker?

A: Change is constant. Over the 29 years of my own career, the practice has changed dramatically. So, too, are the needs and demands of the clients I serve. I pay constant attention to my network — stay in touch with folks at all levels in your clients. Never take their patronage for granted. Without being annoying, let them know what you see in the market that may be helpful to their business — share learning (orders and briefs from cases you may be working on that are germane to cases they have; even relevant cases when you are not counsel in those matters). Be a team player — work well with other favored counsel. And, as noted, try to develop two to three key points of differentiation about your practice.

You can't be all things to all people. Pick a defined point of orientation. For me, it was a focus on a particular kind of company — Internet businesses — that led me to the current practice I have. Then build out your profile within that space — speak at key events two to three times per year. Write in the field. Talk to the legal and financial media to the extent you can without compromising client interests. In short, develop a public persona that matches your client base and practice focus. And last, use your existing clients to get and sustain new business. Most clients with whom you have a good relationship are more than happy to help you win new business. Word of mouth is key to growing your client base.

Q: What advice would you give to an aspiring rainmaker?

A: The platitude of the moment is "value add." But there is truth in that notion. To clients, the idea is that you solve their problems. Think of each person you meet as a potential client — the associate that is logging long hours today may be in-house tomorrow; opposing counsel whom you hope to best may be asked for a referral that comes your way; the administrative assistants and paralegals you deal with at your clients change jobs too and their opinions matter; be responsive — always; understand the clients' need to use other lawyers at other firms and support them; don't oversell (it is OK to tell your clients that you can't credibly handle certain types of matters) and, last, always be honest (not knowing the answer is sometimes the best answer).

Q: Tell us a tale of landing a big client.

A: An in-house attorney at eBay with whom I had a long-standing relationship moved to Facebook. At the time, the company (Facebook) was using other law firms. When the attorney was in-house at eBay, I worked with him in getting a complex class action settled quickly. Now at Facebook, he reached out and asked me to handle a class action (the first one) against Facebook that also needed to be quickly settled due to some strategic issues then facing the company. I very quickly met with the other side and packaged up a set of relief that solved the problem and the case went away quickly and inexpensively.

One year later, having done no work for Facebook in the meantime, the company got its first privacy class action (Lane v. Facebook — see, e.g., http://www.law360.com/articles/399663/9th-circ-approves-facebook-settlement-but-who-benefits). Due to my having successfully met the mandate on the first class action, I was invited to pitch for the business on the new, and much more significant, case. We were retained and again we settled the matter in a novel and creative way that avoided much of the potential downside. By fashioning customized and creative solutions to these cases, we became one of the company's regular counsel, such that I have tried its only jury trial (Leader v. Facebook, see, e.g., http://www.law360.com/articles/232394/judge-affirms-verdict-in-facebook-data-patent-suit) and now regularly handle many of Facebook's patent, trademark and class action matters.

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Michael Rhodes Partner, San Francisco