A friend of the court (amicus) brief explaining the fundamentals of compliance programs should be prepared, possibly by a new working group led by former DOJ and SEC officials, facilitated by the Rand Center for Corporate Ethics and Governance. The door is open for the opportunity.
The SEC recently used an amicus brief to influence an important compliance case. Also, for example, in last week’s U. S. Supreme Court case concerning whistleblower protections, ten amicus briefs were filed, including one by five “Former SEC Officials.” Although the compliance profession could take advantage of the rules of many courts permitting an amicus brief, it hasn’t happened yet.
At its annual conference In 2011, the Rand Center considered a proposal co-authored by the SCCE’s Director for Public Policy, Joseph Murphy, for a facilitated working group on whistleblower issues. This year, a working group for one or more amicus briefs to support compliance officers might be convened by a sponsoring organization like the Rand Center.
It’s apparent from the sparse language in published opinions that some Judges probably aren’t aware of the work compliance officers do or find them irrelevant. Other judges see compliance officers only through the lens of troubling cases that come before them involving failed, ‘paper’ compliance programs, where compliance officers are window dressing or are overwhelmed by C-suite misconduct.
An amicus brief could address this confusion by explaining what compliance officers do in truly effective compliance programs.
In a 2006 case concerning a failed compliance program, the judge’s opinion nevertheless included rare praise for the role of compliance officers:
Corporate compliance officers are very much today’s corporate “fire personnel.” They are often the company’s ‘first responders’ and must focus on both proactive and reactive efforts to be effective.
One wishes such opinions were not so rare, or short, and came from higher courts in better cases. Imagine the impact if senior management, lawmakers and the public could read judicial opinions with accurate representations of both compliance officer’s work and the public’s stake in effective compliance programs. Moreover, for non-American compliance officers, the opinions might have a global ripple effect, encouraging courts abroad to protect the local compliance officers who often work under dangerous conditions when they oppose entrenched corruption.
Could a law firm with a compliance practice expand its current pro bono work to help compliance officers? How would existing corporate clients react? Former senior DOJ and SEC officials, now law firm partners, are a good source of leadership for an amicus brief, because they know what compliance officers do and they command respect. If they authored a brief, it might be the critical step needed to draw broad-based endorsements and push these issues to a tipping point.
Finally, the compliance community will need to contribute toward a consensus amicus brief that sets forth the fundamentals of compliance programs and their critical contributions to the public’s welfare. A working group including compliance experts and former DOJ and SEC officials could be the way forward.
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.