Before going in-house, Ashby was in private practice for a decade, advising clients in the pharmaceutical products and medical devices industries. Four of those 10 years were spent at WilmerHale in Boston where she handled Federal Drug Administration matters and civil litigation. She recently spoke with New England In-House’s Julie McMahon about her role at Acton-based Psychemedics Corp.
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Q. How much did you know about drug testing when you started at Psychemedics? Did you face a
steep learning curve?
A. It’s funny because my FDA background has been somewhat helpful, but I think the biggest learning curve has been in dealing with labor and employment issues. Our industry falls
under that umbrella, and we deal with those issues internally. In terms of a substantive area of law, that’s where I’ve had the biggest learning curve. You think you’re going in-house, and you think you have this substantive knowledge in a particular area, and you think it is useful — and it is — but you deal with things less on substantive legal issues; more often it’s about problem-solving and diplomacy skills.
Q. Last fall, a U.S. District Court judge ruled that black police officers who were fired after failing hair-sample tests could not sue the city of Boston. Applying the “four-fifths” rule, the judge said the plaintiffs could not prove their passing rate constituted disparate impact. Did your company follow that case closely, and did it impact the industry in any way?
A. We were really the first ones out of the gate back in the ’80s to develop the technology for hair testing for drug use. We’ve seen these kinds of cases before. There have been a number that have been dismissed at the federal level, and at the administrative level as well. This is really not a new issue, and it’s a solid science. There aren’t changes we would make, but we are always trying to advance the science.
Q. How about when a major federal program, such as the Affordable Care Act, or industry-specific regulations, go into effect? How much of your time is dedicated to complying with new rules then?
A. A good portion of my time is spent on issues like that. Usually it’s working in conjunction with other departments, like finance and lab operations, to make sure we’re all in compliance. But it’s interesting, too, because since I’ve joined the company, I’ve discovered that there’s a really helpful network of other general counsels out there who are willing to give advice on how they’ve implemented certain laws like the one you’ve mentioned. That’s been a good resource for figuring out how to implement those changes in your own company. They aren’t formal groups, but they are immensely insightful, particularly when you have a small department.
Q. Did you find the transition to in-house difficult?
A. I would say I liked it, partly because of the variety of issues that I deal with, but it is a big change. One thing I would say was different for me was getting used to the idea that your client isn’t just one entity anymore, the way you think of it in private practice. Now it’s several constituencies: the lab, the team, senior management. You make decisions thinking how they affect the departments individually and the company as a whole. Also, in the general way that you provide advice in-house, things are not academic on the business side. You have to think practically and decisively. It’s not an obstacle but more of an adjustment in your way of thinking.
Q. What training would you recommend to lawyers or future lawyers interested in an in-house career path?
A. In terms of lawyers who have a litigation background and who I think sometimes are told that companies are looking only for corporate attorneys in-house, I have found my litigation background to be incredibly useful. I would recommend any kind of experience in negotiation, advocacy, writing — all of those good legal and litigation skills are very useful in-house and sometimes sort of under-appreciated. I would definitely recommend that kind of training. And when you are thinking about how to provide legal advice to a client, think: When the rubber hits the road, what can they do with what I’m telling them?
Q. How do you monitor new laws and regulations across the country that affect in-house counsel and your company specifically?
A. I do a substantial amount of research on laws in other states in terms of drug testing. And then there is a lot of word of mouth, and that’s helpful in a practical way. We also receive regular updates from outside counsel, and there are groups that monitor changes in the drug-testing industry so we get alerts. That’s pretty much how we keep our finger on the pulse of how the laws are changing.
Q. Are there particular matters for which you look to outside counsel?
A. Generally, we work with outside counsel on litigation and [intellectual property] cases. Those are really just the two broad categories that I interact with outside counsel. We have a few firms that we have strong relationships with. They are longstanding relationships. They have done excellent work with us in the past. I think it’s very important to maintain those relationships.
Q. When you work with outside counsel, do you use alternative fee arrangements?
A. I have done that on a couple of occasions, but generally speaking I’m not sure it’s the wave of the future that people have predicted. I think they are useful for certain types of cases, but not universally. My experience has been that they are useful when there is sort of a natural break in the case. If you’re trying to win on a particular motion, you might build in some kind of incentive payment. That’s when I’ve used it.