Talking business with Andru Volinsky

It’s pretty safe to say that Andru Volinsky – the lead lawyer for the plaintiff school districts in the Claremont education lawsuits — is one of the state’s best-known lawyers. It’s also safe to say that most people don’t know that his law practice has little to do with trying to change the way the state raises money for public school. Volinsky – who recently left the Concord law firm of Stein, Volinsky & Callaghan to head up the Manchester office of Portland, Maine-based Bernstein, Shur, Sawyer & Nelson – focuses the bulk of his practice on employment law, commercial litigation and white collar crime-related matters.

In fact, much of his practice involves conducting investigations on behalf of corporations that have been accused of misconduct concerning employment practices or corporate compliance and fraud issues.

Q. What made you decide to leave your former firm?

A. It wasn’t a mid-life crisis. It was what I would call artistic differences with my former partners. They always let me do whatever I wanted, but that made me into essentially a solo practitioner, and at that level there were cases I couldn’t do because I didn’t have the resources.

But another part of it was a different view of the practice. I think that if you want to remain viable, if you want to grow, you have to think strategically, think about the kind of clients you want to attract and how you go about accomplishing those goals. My first full day of work at Bernstein, I was in Portland for half the day and met with the education group and the intellectual property group, and each group said, “This is the kind of client we want, these are the kinds of cases we want to do and what are the steps to increase our presence in those cases and those clients?” That was what I had been trying to accomplish in my old place for a couple of years, and here they’re already set up. It’s a more entrepreneurial approach to the business.

Q. What does it mean for a law firm to be entrepreneurial?

A. It means having a real practical approach to problem-solving. Since I’m a litigator, people come to me with problems one way or another. I’ve always tried to take the approach that litigation is probably the worst choice for most of my clients. I’ve tried to avoid litigation in practical ways. Do you change practices? Do you approach the other party and have some frank discussion? You should only turn to litigation after you’ve exhausted the alternatives. Being entrepreneurial is not just being practical for the client’s business, but also for the firm’s benefit. You can’t sustain a business without thoughtful planning, and that’s what this firm does by design.

Q. Your law practice revolves around working with businesses on a whole range of issues.

A. Most of my litigation work is in three areas – employment litigation, commercial disputes and white-collar crime representation.

Actually, these days, white-collar practice means you do more investigating on behalf of the client, talking with the agency that’s looking at your client and seeing if there’s a way to resolve the dispute before you get into a fullblown Martha Stewart trial. In the white collar area, if you’re sitting at trial, you’ve already lost because you’ve failed to convince a prosecutor that they don’t have a case, or you’ve failed to acknowledge that you don’t have a case and worked to resolve it with a civil settlement or something like that.

Q. What about the employment litigation and employment counseling aspects?

A. I’m actually fairly unusual in that I represent both plaintiffs and employers. Usually people are on one side or the other, and I’ve had a few cases fairly early on that were good-sized cases on behalf of an employee who was discriminated against or terminated, and after doing the trial, I was approached by the company to work with them.

Q. I can think of one example myself.

A. Cabletron was in that category. I wound up representing Cabletron in employee disputes for a half-dozen years. I still occasionally do employment representation for Enterasys, Cabletron’s successor. There are a bunch of others that I’ve consulted with on the counseling side — showing them where their practices can get them into trouble – and represented when either they were accused of some kind of misconduct or in litigation.

Q. You’ve been active in liberal politics for a long time, and so many of your clients are corporations, businesspeople who may not take kindly to your political ideology. What kind of effect has that had on your practice?

A. I think early on, before we proved our legitimacy, I was excluded from some potential clients on the corporate side. That’s less so now, because a lot of clients who may not agree with my politics certainly want an effective lawyer.

Q. Where does that Claremont case stand right now?

A. We have sound court decisions. We have a current funding plan that by its own terms ends at the end of this fiscal year. The Senate had a plan last year, and the House had a plan, but they couldn’t put the two together. So they let (Rep.) Dave Hess go first for a year, and then (Sen.) Teddy Gatsas got to go. What a ridiculous way to make public policy.

Q. What’s being done to address that?

A. We’re doing some things to raise some public awareness and try to get a broader base of support than just the court. I think if we went back to the court right now, the court would say that the plans are unconstitutional on their face, but I think we need to be less reliant on the court and broader in the public support.

We helped initiate the Citizens Voice Project, which has held public forums in communities around the state, with more planned. They involve a lot of discussion about what is important in providing quality education for kids.

In addition, the small poorer towns are starting to organize better and are involving the middle- sized and middle-income towns, so Concord is now interested in the effort, and Nashua as well.

Q. You represent Linda Pepin, the former Cabletron employee who did work on health benefits and other HR issues for Governor Benson. She was brought before the Insurance Department, charged with illegally accepting broker fees in what’s being called the Choicelinx scandal. A lot of people in politics are pointing to this case as an example of corruption.

Do you think that it is?

A. I really believe in the rule of law, and so for me as a lawyer with a client involved in this matter, I want to know if my client broke the law and what was involved and what are the implications. I think separate and apart is the public policy question, and I think when you throw pejoratives like “corrupt” in the discussion, you end the discussion.

I think this governor has made some horrible, horrible public policy decisions that ultimately hurt the citizens of New Hampshire in innumerable ways, and I don’t just mean in the education area. His office structure and lack of accountability with his virtual team redounds to the state’s detriment over and over and over again. That’s a huge problem, but I don’t believe that’s a crime. I don’t think it’s a violation of the law. If the Legislature and the governor want to pass some laws that say you have to structure an administration in a certain way, it’s their place to do that. If the body politic wants to respond to this approach to government they could vote him out. And if the Democrats were better organized we would probably not be in this pickle to start with.

Q. So you’re saying the governor’s playing by the rules — there aren’t any.

A. It’s the same in the corporate governance area. You can complain about corporations outsourcing, but there are no rules to prevent them from doing that — in fact, there are incentives. I don’t think the name-calling impresses anyone, except for the people who are doing it.

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