by Roy Snell, CEO SCCE
Just yesterday, I talked to a former general counsel. We are talking again today. He was wondering if he could/should or was otherwise qualified to become a compliance professional. I told him that his background and education were an excellent platform to become a compliance professional. I did mention he needs to study the role of the compliance officer and the function of a compliance program.
Many believe that compliance is all about the law, so if you know “law,” you can be a compliance officer. There is much more to it than the knowledge of the law. I did tell him that there were also tendencies that people in the general counsel’s office have that he would have to let go of. This was, in my opinion, the more interesting part of the discussion.
Some people entering our profession — after spending years in the general counsel’s office — have a defensive posture. It is completely understandable. It is an important skill for the general counsel. They have defended the company from all sorts of attacks, many of which were unfair. However, when shifting to the compliance role, it can taint their perspective. I told him some of his peers have had a little trouble making the transition because they had an “us against them” perspective, “us versus the regulations,” “us versus the enforcement community,” or “us versus the whistleblower.”
I told the former general counsel that he would have to let go of that tendency and take more of a neutral perspective. Our legal system has three main components: 1) prosecution, 2) defense, and 3) a judge, jury, or mediator. Each has a totally different perspective, and it is a great legal system. However, a compliance officer has to look at the world through the lens of the mediator rather than prosecution or defense. In my experience, it takes a couple of years to shake the idea that you want to point out all that is right (defense) or all that is wrong (prosecution). I have watched many prosecutors enter our profession and have the completely opposite challenge that former general counsels do. To them, everything was broken and had to be fixed immediately with no discussion.
What a compliance officer brings to the table is all the information and possibly an outside, independent, unconflicted, expert opinion from someone who has handled that very specific risk area many times before. With that information, leadership can then make an informed decision, and they may need help making the decision. The compliance officer may have to push one way or another. The compliance officer may need to encourage them to correct the problem when they are reluctant or advise leadership not to overreact to the problem if they are angry or overly concerned. He or she must be neutral. If you take a defensive posture for years, it appears it is difficult, at times, to push to correct the problem. And you must accept the idea that as a compliance officer you cannot compromise when compromise is not possible.
There are some very big settlements occurring right at this moment in which it is fairly well documented that the general counsel knew about a problem years before the enforcement community discovered it. Some even ignored an outside independent expert opinion substantiating the problem. They chose to take a defensive posture, and after a few years the problem was discovered by the enforcement community. This has given the enforcement community added fodder to send them a strong message. The settlements are likely to be larger than those given to those who were unaware of the problem. There is a need, at times, to avoid the temptation to deny and defend — and replace that perspective with reveal and correct.
The finest compliance officer I know went through this transition. It is not a weakness. In fact, I believe his commitment to defending was a strength. However, the change must occur. He was a very successful employee in the general counsel’s office because he took his role seriously. Although it took a while to completely absorb the role of the compliance officer, he then gave the same commitment to compliance that he had given to his role in the general counsel’s office. If you make the change from the general counsel’s office to compliance, it is important to consider this potential issue and make adjustments, if necessary.
© 2014. Reprinted from Journal of Health Care Compliance, Volume 16, Number 5, September-October 2014, with permission from CCH and Aspen Publishers, Wolters Kluwer businesses. For permission to reprint, email firstname.lastname@example.org.