By Joe Murphy, CCEP
From Compliance & Ethics Professional, a publication for SCCE members
Ask any group of compliance and ethics people how they feel about having the general counsel be the compliance officer, or having a more junior lawyer take that role, and you will likely find yourself deep in controversy. But for a company lawyer interested in compliance, and a compliance and ethics professional needing access to effective legal help, there is an alternative approach that can work well for all involved.
In companies large enough to have several lawyers, consider assigning one specific lawyer as the lawyer for the compliance program. Now, of course, any corporate lawyer can tell you that he or she has only one client – the corporation. That is true, but it is also true that lawyers are given certain areas of focus and expected to work with specific client groups in the company. And while it is a good idea for any corporate lawyer to know the basics of compliance, there is great advantage in having at least one who takes this on as a special focus.
This lawyer would be the first port of call for compliance and ethics professionals with legal issues in the company–a gateway for the Legal department. As was the case for me when I played this role in-house, the compliance people knew that I understood what they were doing, and they knew their calls would be the first ones I returned.
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This lawyer would also champion the compliance and ethics program within the Legal department. So, if a company labor lawyer initially opposed an innovative compliance program step, because it might create issues under the National Labor Relations Act, the compliance lawyer would work with this lawyer to find how to achieve the compliance objective consistent with the NLRA. If a litigation lawyer wanted to get rid of an officer who violated the code of conduct by paying the officer lots of money to go away quietly, the compliance lawyer would explain the problems this creates in the compliance program, and how that would count against the company in legal proceedings, if the company ever had to prove that its compliance program was effective.
The compliance lawyer would attend the compliance committee meetings, and perform such important legal functions as periodically reviewing the helpline log for hidden legal issues and reviewing compliance program documents that might be misinterpreted. This lawyer would know which labor lawyer or antitrust lawyer needed to be brought in to consult on what issues.
When structuring your program and looking at your relationship with the Legal department, you might want to consider creating this position as a helpful option.