We considered some opportunities lost in 2013 for lack of advocacy, and the need for change in 2014. In the spirit of the season, here is a New Year’s resolution about advocacy.
Compliance professionals have a story to tell and it’s a good one. What we need are the storytellers. Fortunately, they are at hand: Law Firms.
Among the best of the legal profession are the attorneys engaged in anti-corruption compliance. They can tell our story. The path for this already exists: The friend of the court (‘amicus’) brief. Amicus briefs are routinely submitted to courts on behalf of businesses and non-profit organizations. Federal and state courts, including the U.S. Supreme Court, encourage them.
For the New Year, we are asking law firms to make a New Year’s resolution to submit friend of the court briefs on behalf of compliance officers about the compliance profession.
Courts encourage friend of the court briefs for several reasons. They explain the context of the litigation, analyze complex issues and define the pubic interests at stake. They can support one of the parties or be a neutral source of information for the court.
Courts and the public are often confused about ‘compliance.’ A comprehensive amicus brief or series of them could establish basic facts, such as the history and growth of the profession, what a compliance program does, and how the role of compliance officers and chief compliance officers is different from the lawyer’s role. The briefs can explain current struggles, for example: CCO independence, Board oversight, and protection against retaliation.
A non-adversarial brief could be sponsored or joined by compliance and business leadership, NGOs, journalists, and the DOJ and SEC. After the first comprehensive CO-related amicus brief is filed in a case, advocates will have a model to follow in other cases.
Will a law firm step forward in 2014 to champion COs and the compliance profession by filing the first friend of the court brief? Let’s be resolved to make it happen.
Best wishes for a Happy New Year.
Michael Scher is a contributing editor of the FCPA Blog. He has over three decades of experience as a senior compliance officer and attorney for international transactions. He is affiliated with ethiXbase, the owner of the FCPA Blog. He can be contacted here.