Breaking - Business Attorneys Embrace Compliance Programs? The DOJ Compliance Effectiveness Document.
There are a number of in-house and outside counsel from the business community that have studied and embraced compliance programs and the role of the compliance officer. However, a number of your colleagues have not. Many just haven't been given an opportunity to see all the elements and the impact a compliance program can have. That seems to be changing. The number of legal publications posting articles on the recent DOJ compliance program effectiveness document is remarkable. The DOJ document seems to be having an impact on the business legal community’s perspective on compliance programs.
The document covers material what has been discussed for 20 years and is very well written, but the effect it is having on the business legal community is as if they found the Dead Sea Scrolls of compliance. I am sure the business legal community has seen descriptions of a compliance program in the past but my impression is that most of it has not had a comprehensive impact. Their overarching view has been, it seems, that compliance programs are all about the law as opposed to about the law, risk, audit, ethics, education, etc. It is a subtle but material distinction. I think this may be a small tipping point for the business legal community because this DOJ document is coming from a source they feel they can’t dismiss. This document is coming from a source they pay keen attention to.
This proclamation from the DOJ is to the business legal community what the US Sentencing Guidelines Chapter 8 is to compliance professionals. Interestingly healthcare has always taken a stronger interest in compliance programs than many other industries. The Heath Care Compliance Association has twice as many members, conference attendees and certified compliance professionals than its all industry compliance professional sister association, the Society of Corporate Compliance and Ethics. Why? It might be that about 20 years ago the Officer of Inspector General for the Department of Health and Human Services published a document very similar to the DOJ effectiveness document. Unlike other IG’s offices the HHS IG’s office investigates business fraud and has billions of dollars in settlements over the last 20 years. The healthcare in-house and outside counsel payed greater attention because the healthcare compliance effectiveness document came from the enforcement folks. Now every industry has a compliance document from a source the business legal community seems to be paying attention to.
This bodes well for everyone involved. If I am right the impact of this could be significant. CEOs will see less resistance to the implementation of a complete compliance program. Compliance officers will see more support. Many in-house counsel and outside counsel have been supportive... but supportive of what? They have been supportive of what they thought a compliance program was. Their definition may have been focused on the legal aspects rather than all the aspects (elements) of a compliance program. The DOJ compliance program effectiveness document makes it clear that all elements of a compliance program are important. If I am correct we are going to see a marked improvement in the understanding and support of compliance officers and compliance programs. If I am correct we may see an improvement in the prevention, detection and remediation of ethical and regulatory issues. Be sure your legal folks see the document.
Senior Director at Resiliti
7yAbout 15 years ago while working as an Ethics Officer among other roles in the corporate security sector, I posited the proposition that a robust ethics and compliance program was not only good in and of itself but if executed properly would be a business benefit as well; and as a lawyer, believed that business lawyers should counsel clients on developing such programs not only as a way to avoid or mitigate legal problems but as a business benefit. I mentioned this to a cousin of mine who was a senior practicing attorney and he had a friend of his who was a leading attorney in a firm presumably specializing in business law to call me to discuss the idea. When I explained it to him, he practically laughed in my face (telephonically) and barked: "What would you do for an encore once the program is set up?" Having ISO experience, I responded "Audit it annually to see if it's working and how it can be improved." The response: "It'll never sell!" I wonder what that "brilliant" rainmaker - if he's still practicing - would think now. Great piece.