Minnesota Litigator Profile: Mike Rothman

The career of former Commissioner of the Minnesota Department of Commerce is an inspiring 21st century story. Mike has enjoyed decades of success in the public and the private sectors and now is running his own law firm. (You can find a chronology of his career, with its many highlights, here, and information about Rothman Law & Consulting here.)

As Mike mentions below, 21st century technology enables this career path as never before. That’s a good thing — for Mike, for consumers of legal services, and for all Minnesotans.

But, as Mike also mentions below, it seems as if the allure and appeal of public service and civic involvement might be waning these days. That’s a bad thing. Here’s to hoping that the virtue of public service and sacrifice is evermore appreciated and celebrated. Mike’s work should inspire us all.

Minnesota Litigator (“ML”): Mike Rothman, former Commissioner of the Minnesota Department of Commerce and a candidate for the Minnesota Attorney General back in 2018, you are now your own law firm. Tell Minnesota Litigator readers what that’s like, what your practice is like, and about setting up your own law firm.

Mike Rothman: The law firm is terrific. It’s successful. Going back to the law practice has been enjoyable after being the Commissioner of Commerce and then running for Attorney General. It’s about helping people and making sure that they’re in a position to assert their rights and fight for them. The practice is broad.

I’ve been Commerce Commissioner, and so -the practice is about commerce and regulation, helping both businesses and consumers navigate those challenges, whether it’s litigation, or a regulatory problem, and transactional work. So yes, I’m very happy about how it’s been going, looking forward to helping more clients in the future, reaching out to other lawyers, and building a strong network.

ML: As the Commissioner of Commerce, how many people reported to you?

Mike Rothman:  It varied, but it was about 330 employees. The department oversaw 20 or more industries. It was insurance, securities, banking, real estate, and included the energy portion for the administration. And that included everything from renewable energy, to oversight of the utilities across the state of Minnesota.

ML: And in that capacity as the Commissioner of Commerce, I assume any litigation that the commissioner had would have been handled by the Attorney General’s office? Is that right?

Mike Rothman: We had representation from the Attorney General’s office. We also had lawyers on staff. We had developed a small general counsel’s office. If we were sued or to be sued, then the Attorney General does represent the department and any of the agencies in the state.

A good example of that was the North Dakota lawsuit against Minnesota. It was an important case. The critical issue was whether Minnesota’s moratorium on coal was, or could be, upheld under the Commerce Clause of the U.S. Constitution against a challenge by the state of North Dakota.

North Dakota sued Minnesota. I was named as a defendant. Our staff were the most knowledgeable about coal and energy. But as to the legal issue under the Commerce Clause, it was fascinating as to whether Minnesota could stand strong and prevent the use of coal in our state.

And it came down to, in that case, how well the statute had been written by the legislature. If it had been tweaked a little bit here or there, it might’ve survived, but the Eighth Circuit U.S. Court of Appeals three-judge panel was split. The decision had various interpretations of the law.

Sometimes you wonder if you get a different panel, whether that would have tilted it one way or the other.

But in this case, one interesting aspect was that part of the law was moot. Minnesota was already moving towards renewable energy. We’d been working with Xcel Energy and other utilities around the state to move away from coal.

So we had already accomplished a lot, and the transition will happen anyway, regardless of the decision. Even though Minnesota lost in that case, it is something that we’re going to achieve, regardless. It’ll take two or three decades, but it’ll happen.

ML: You bring up an issue related to the environment. You have a very long history of Democratic party activism. Is that fair to say?

Mike Rothman: Yes.

ML: And are you still active?

Mike Rothman: I am, but I’ve been focused more on practicing law. I am active in the sense that I still attend DFL events, I still keep friendships there. And on top of that, part of my practice was, and is, campaign and election law. For example, I did work on the recounts: the Dayton recount, the Franken recount, and then one that proceeded them was the Melanie Ford recount up in St. Louis County. So campaign and election law is part of my practice.

ML: You mentioned your practice involves litigation, regulatory work, and transactional work. And I’m wondering if you could give our readers a sense of what kind of work it is within those categories.

Mike Rothman: In litigation, I have been doing some expert witness work, which has been terrific. I have been retained for my knowledge and expertise that comes with having been Commissioner of Commerce for about eight years, overseeing different industries, and I have that expertise to address a variety of issues that come up in litigation.

One case involved questions related to licensure in connection with a particular real-estate transaction. Another case is a plaintiffs’ class action involving a matter that we investigated at the Department of Commerce and worked on with the United States Attorney. We put a fellow, an insurance agent, behind bars for ripping off senior citizens, and I have been retained in a civil lawsuit related to that.

In addition to the expert work, I represent people and businesses in standard litigation, and commercial litigation.

And I have also been retained for regulatory work — any issue that could come up with regulation at the Department of Commerce or other regulators. That would include either a licensing matter, or a dispute, or an investigation, or anything that would relate to energy, for example.

On the transactional or non-litigation side, there are things like working on business disputes in terms of books of business, separation agreements, everything that goes along with that as they continue their businesses.

And, at the same time, I am building a network around me to be able to facilitate some of the complex issues that could come up if necessary. And I have those affiliations, including yourself, to be able to do that.

ML: Any surprises as you have embarked on really a very different latest chapter in your career from your past experience, both as the Commissioner of the Department of Commerce and working at larger firms before that?

Mike Rothman: Well, let me talk about the areas of practice, and then the business of law practice. On the areas of practices, the surprise for me was being asked to be an expert witness in the first case and then another case, and that that would be a good area for me to continue to practice.

I also have been pleased, I guess, not necessarily surprised, but pleased that a lot of the business I’ve been getting is organic based on just people knowing I’m out there and asking me to do the work for them. And I’ve become quite busy.

And then that means doing the things I need to do to continue business development, marketing, and all. So that goes back to the differences between working at a big law firm and the small law firm.

As part of my law practice before being the Commissioner, I was pretty focused on business development. I always believed that your success relied on getting out there, getting your own clients, keeping your own clients, but then also making sure that you were going to have a few in the door as you kept going. So it was critical to do that, and you also have to bill the time and all that. The marketing is not billable, but you have to do it.

As a solo practitioner, the other piece of it is putting together the company, the business side, putting together the administrative side of it, and then the accounting and the software. The fascinating part is that, and I guess this is another surprise, is that the legal management software, is very sophisticated now and can support a solo practice much better than it used to. In addition, you have the … I would say it’s the cloud…we’ve come to a place where you don’t need to have $10,000-30,000 worth of computer equipment in your closet as a solo practitioner. You can set it up and turn it on, and it’s right there for you.

You can now handle a large number of documents. You can get the bills out as quickly as anybody else. So that’s been good.

The only thing is, unlike working at a large firm downtown, you can’t just knock on the next door and say, “Hey, would you like to go to lunch?” You have to call up, schedule lunch, do those kinds of things, so that you’re out there networking.

The great thing is that it’s been a success, and it will keep growing.

ML: You’ve been a lawyer for something close to 30 years, I’m guessing. Putting aside the dramatic technological changes during your decades of practice, which everybody is very aware of, do you think that practice of law has changed in other ways?

Mike Rothman: I think in many ways, and in various ways, it has changed. For example, when I clerked for Opperman, Heins and Paquin–and if you remember back then, the West Publishing Company had the West Keynote System, which was incredibly helpful for research–compare that to today where you can go on Google Scholar and pull up those cases. It’s more accessible. The ability to do that research is online and all that, which is quite a comparison to 30 years ago.

Moving from changes in legal research, consider the law firm marketplace. A few decades ago, Minnesota’s firms, the biggest ones and the medium sized ones, were the big market players for Minnesota.

And maybe Dorsey would be compared with some of the firms out of Chicago or something like that. But were they a national firm? They became national. That development has occurred.

And now compare that to today, where national firms have merged with or bought out some of those firms, and the firm names and firm headquarters have changed, making management of the large Minnesota law firms not necessarily locally based, meaning they’re not here in Minnesota. These firms may now be managed from Texas, Washington, D.C., Ohio, Missouri, California, etc. So that can make it difficult if you’re in those firms in terms of competition to become partner or competition for, and fighting over, salary compensation.

Which brings me to this point, which is that in looking at all of these things, I felt very comfortable opening my own law practice, because I felt I had enough experience and name recognition with my ability to market to bring in enough work on my own, but also to manage myself, to be my own boss, if you will. And then within my own family, there’s examples of solo practitioners. So it just made a lot of sense to move out on my own at this point.

ML: You mentioned you took a year between college and law school. Sometimes those little periods of time can be very interesting and valuable detours for the rest of your life. What did you do with that year?

Mike Rothman: Well, first of all, along with some other Carleton College graduates from my year, I rented a house in Minneapolis. We worked that summer in a variety of different places. I worked at a class action law firm. There were two or three of us that were working on a class settlement claims-administration project. It was millions of dollars in a railroad case that went to injured workers. We spent the summer taking all this class action money, and then figuring out how to distribute it, which was a great experience.

I also worked at a hotel as a front desk clerk. That was a fascinating experience. It was downtown Minneapolis. Some would say it was on the outskirts. This was on 10th Avenue and Hennepin. So there would be a number of characters that would show up from time to time. But the two other hotel clerks that I worked with were a short story writer­–whose mentor was one of the famous short story writers–and the second guy, older than us, was a former Navy jet pilot.

Working with these two guys was really a lot of fun. We got into conversations about short stories and then about the experience of life and having flown jets.

On top of that, it was just a wonderful time just to “cool our jets” in a way, if you will, to hang out with my friends and recent graduates, making that transition from Carleton into our next phases, which for me was law school. It was an interesting, fascinating, and fun time of my life.

ML: Shifting gears back to your time as the Commissioner of Minnesota’s Department of Commerce, as a commissioner of this large organization, did you feel you were able to actually effect change? Were there particular things where you said, “These are my priorities, and this is what I’m going to do?”

Mike Rothman: Yes, there were. My focus was to strengthen consumer protection for all Minnesotans. The Department of Commerce on the financial, regulatory side, at the heart of it, is all about protecting consumers in the marketplace, whether that’s protecting them from insolvency, from a bank, credit union, or insurance company, to a bad market practice. The department needed to be renovated, needed to be improved and strengthened for consumer protection. And that piece of it had been lost for many, many years. So my primary goal as I started off was to turn that around and to reestablish the department as a strong consumer protection agency, and I’m very proud of doing that.

And there are just hundreds of instances in which we worked very hard to protect Minnesota consumers. Part of that is protecting senior citizens from financial abuse. And I made that a very high priority. A lot of seniors are, whether it’s from the internet, or from an advisor, or even from a family member, subject to financial abuse.

The other area that I made a top priority was renewable and clean energy, the clean energy economy for Minnesota. And on effecting change for that, we implemented during my time several major important things to continue Minnesota’s path, and to strengthen it towards, a clean energy environment. One was the solar energy standard. We instituted a solar energy standard that created an environment to develop solar farms across Minnesota, and to improve them for both residential and commercial applications.

From the regulatory side, we were able to establish policies to put Minnesota on the forefront of climate change regulation. And that meant moving away from coal and more towards clean energy. During the time that I was Commissioner of Commerce, we moved our total energy consumption significantly towards renewable energy and away from coal, with the prospect and with policies in place to move Minnesota to between 50% and 85% renewable energy over the next 10 to 20 years. And with those in place, I feel it’s been a strong legacy to leave behind.

Another piece that was very, I’d say contentious, but difficult and important for people, was to save the individual health insurance marketplace from collapse. And I worked very hard to make sure that never happened and to make sure that those people didn’t lose their health insurance. The numbers we were looking at are hundreds of thousands of people whose health depends upon that marketplace.

So those are some of the major highlights. There are a lot of other great parts of the job for me personally.

I was the president of the North American Securities Administrators Association, which is the state and Canadian regulators that work in partnership with the S.E.C. [ed.  note: the Securities Exchange Commission] to oversee all of the securities marketplaces throughout the United States. Within that context, I focused on cybersecurity and working with the Federal Reserve and others. I was appointed to a U.S. Treasury Committee, where we focused on United States infrastructure around the country to protect it from cybersecurity attacks.

I loved the job. Every day was terrific. Working in the environmental sub-cabinet with other agencies to improve Minnesota’s environment, to the health sub-cabinet to improve Minnesota’s health care system, and all of that, was just a real great opportunity.

ML: And it leads me to wonder whether you miss being in the public sector.

Mike Rothman: I enjoyed being in the public sector to help make a difference for people. The position of commissioner was a great opportunity to do that. I do miss being in the public sector. I think more and more people should believe, or we should live in an environment where it’s an honor and a privilege to serve the public. Now, many people do not view public service in that way, and it’s unfortunate because we need good public servants to help all of us. That said, I’m also enjoying the opportunity to spend more time with my family. The kids are getting older. Our daughter is a sophomore in college. We have two boys, one’s a junior and one’s a ninth grader. It’s been a really nice time just to be with them as they grow up, and then to have the opportunity to start my own law firm.

ML: What do you put the odds at that you might go back into the public sector in the coming years?

Mike Rothman: I always say, “Keep the door open for the possibility.” You never know what could happen. I believe that if the right opportunity comes along, anyone who has that opportunity should think carefully and seriously about it. But I think I’ll be at a place where the question will be, “Should I continue to practice law, focus on the family?” And I believe that at this point in my life it’s a higher priority for us as a family. And whether there is the opportunity in the future remains to be seen. But again, I just come back to we’ll just keep the door open.

ML: If you could change anything about the Department of Commerce, what would it be?

Mike Rothman: While I was Commissioner, I made a lot of the changes that were necessary to make it a stronger department. For example, I reorganized to create an insurance division that the department didn’t have before. Ensuring that the department has the resources it needs, I think, would be one of the number one priorities. The second is to make sure that the department continues to push for some very important consumer protections. Every year I’d go to Legislature to request them. I think in a variety of areas, the law could be strengthened to help consumers.

One law that did pass that I pushed for, and it’s sort of a legacy but it passed after I left Commissioner, was the Safe Seniors Financial Protection Act protecting senior citizens from financial abuse. And then moving over onto the energy side of it, the department … and broadening it out, I think the state of Minnesota needs to be focused on a 100% clean energy economy, and then get there as fast as possible.

Minnesota has been a leader around the country, and among the States. And in the environment that we’re in right now, I think a clean energy economy is one of the things that is absolutely critical. Now the legislature, the governor, have been looking at these proposals. And I think that that’s a critical fight for Minnesota to solve, but also to pass something that gets to that 100% clean energy.

The problem isn’t just Minnesota. It’s across the country. And we must get to a place where we as a country, and for the rest of the globe, are leaders in the climate change, clean energy space. And it’s not just clean energy. There are transportation issues. There are a whole variety of things that we have to do.

ML: If you were standing here on a soapbox and could address Minnesota lawyers and judges, would you have anything to say to them?

Mike Rothman: I have a lot of thoughts. The legal profession is rewarding and it’s very important for all of us, whether it’s in government or in the private sector, to really have a strong system. Underlying some of the challenges today is the lack of trust in our institutions. And I think we need to continue to be good leaders to maintain a strong legal system, to do what we can for the next generation, and to leave behind a good legacy for everybody.

ML: Thank you.

[Previous Minnesota Litigator Profiles of Minnesota litigators:   Kevin Dunlevy, Minnesota real property authority,  Brent Primus, a 40+ year Minnesota litigator with decades of experience in cargo and transportation law,  Emily McNee, employer-side employment litigator, Anna Voss,  Civil Chief of the United States Attorney’s Office, Kenneth U. Udoibok, fighting for justice from Nigeria to Minnesota and beyond, Bill Tilton, 40 year St. Paul civil rights lawyer, Kristine Kubes, advisor and litigator for construction professionals, Rachhana Srey, plaintiff’s side wage-and-hour litigator, Eric Nilsson, banking/lending litigation, Roshan Rajkumar, products liability defense, Jerry Alcazar,  products liability defense, Liz Kramer, Arbitration Maven/Author of Arbitration Nation, Tim Nolan, Lawyer/poet, Laurie Vasicheck, 25 year veteran of the Minneapolis office of the EEOC, Jake Holdreith, an IP litigator for “drug dealers” (better known as pharmaceutical companies), Pam VanderWiel, lawyer for Minnesota municipalities, Bill Dossett, Executive Director of Minnesota’s Nice Ride bike-sharing program, Christina Snow, lender/servicer real estate and foreclosure lawyer, Clayton Halunen, plaintiffs’ employment lawyer, consumer rights lawyer, Stephen L. Smith, straddling a civil and a criminal litigation practice (and later appointed to the Ramsey County District Court bench),Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“,  Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator,  John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer,Karin Ciano, free-lance “federal sherpa,” Jerry Alcazar, products liability defense.] [For Minnesota Litigator profiles of judges, see: Retired U.S. Magistrate Judge Jeffrey J. Keyes, Hennepin County Judge SusanRobiner, Retired U.S. District Court Chief Judge James M. Rosenbaum (D. Minn.), Hennepin County Chief Judge Peter Cahill, Hennepin County Judge Thomas Fraser.]