Compliance and Ethics: Ideas & Answers. Edition 68

Dear friends,

Welcome back to another edition of Compliance and Ethics: Ideas & Answers.

We have two pieces for you this week. For our first piece, Adam Balfour took inspiration from a recipe his daughter discovered in an old cookbook. We then have a piece I wrote after reading the book In the Arena: Real World Answers to Actual Investigator Questions and exchanging ideas with the author Meric Craig Bloch.

As always, we finish with a bit of fun in our regular feature Compliance Lite.

And don't forget there's more content on our website so please do visit us there to read our other articles.

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Thank you, Joe.

Adjusting The Ingredients

by Adam Balfour

My eldest daughter decided to bake yesterday and she found a recipe in an all old cook book we have. She had the book open on a page that had a reminder that baking at different altitudes will impact how the ingredients work together and how the cake bakes. The same ingredients in one place won’t necessarily lead to the same result elsewhere because of the impact of altitude.

Building of my theme from last week’s tip, this was a good reminder for me that the ingredients for what will work and be effective for one part of an organization’s ethics and compliance program will not necessarily lead to the same outcome elsewhere. You have to adjust the tactics and approach of the program based on a variety of factors to get to the desired outcome - sometimes the changes needed will be small or subtle, but the only way to know is to really understand the context and situation of the particular location or part of the organization to understand what needs to change that will still lead to the same outcome.

I’m sure there are a bunch of ethics and compliance bakers out there. What other tips or perspectives have you taken from your baking that can apply to ethics and compliance?

In the Arena: Real World Answers to Actual Investigator Questions

by Joe Murphy, CCEP

Meric Craig Bloch is the dean of compliance investigations. Over the years he has accumulated knowledge and wisdom that can serve as a tremendous guide for investigators.? Recently I had the chance to read his most recent book, In the Arena:? Real World Answers to Actual Investigator Questions. Here he deals with actual questions he has received over the years. ?As I read through it I found many practical points, but also some points I wanted to discuss with Meric, so I thought a discussion would be the best way to proceed. What follows is both from reading the book and exchanging ideas with Meric.?

First, a word about the title.? Teddy Roosevelt fans will immediately recognize the phrase “In the Arena.”? I thought it powerful enough to include the full quote:?

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.” ?―?Theodore Roosevelt

This fits so perfectly for the investigator.? When you are conducting an investigation you are in a contest to learn the truth.? It will be easy for others to complain or critique, but the investigator is the one with the courage to step into the arena and take the risks to find out the truth.?

The standard for investigators

It is clear to me, from reading the book and discussing it with Meric, that he is committed to professionalism for investigators.? Like any business professional, as an investigator you have a duty to the organization you represent.? You work with the managers, but must do what is best for the organization. You also have a duty to your profession. You will not cheat in your work, or shade your conclusions to please powerful managers.? You also have a larger duty to society. If you find criminal conduct, for example, you will not let it pass;? you will see that it is taken up the corporate ladder.?

Meric notes the importance of the “business conduct standard” as the standard for determining what is a reportable finding.? From our discussion it is clear that this is not just referring to a specific code of conduct, but would include all types of wrongdoing, whether it is a violation of another policy, or indeed if it was a matter of law not captured in a corporate document.?

Lawyers and investigations

One question that is common in internal investigations is the role of legal counsel, and how this impacts interviews in investigations.? Meric and I agree completely that the so-called “Upjohn warning,” which lawyers (and those acting for lawyers) provide in interviews, should not be given indiscriminately by all investigators to all those they interview. The Upjohn warning advises those being interviewed that the attorney interviewing them does not represent them, and that the interviewee does not control what happens to information obtained by the lawyer in the interview. ?The Upjohn letter should only be used when appropriate, by lawyers or those acting under a lawyer’s direction and control, when an interview is conducted for the purpose of enabling counsel to give legal advice, or as part of preparation for litigation. Using this warning when not appropriate can weaken the privilege claim, and also scare witnesses for no reason. ?And for lawyers, in all cases they should know the standards set by the bar in their specific jurisdiction on this and any other matters relating to conduct in investigations.

For lawyers there are also the questions of what to do if an interviewee asks if they should have a lawyer, or if they state that they have a lawyer and want that person present. For lawyers and those acting for a lawyer, this is a red flag.? Again, all specific rules are set by the jurisdiction where the lawyer is licensed, but generally the lawyer could not give advice about getting a lawyer, and would have to step back if an interviewee is represented by counsel who is not present.? In the US, at least, the company would not have to permit an outside attorney to be present, but the company’s own legal counsel would have to follow the applicable state legal ethics rules. ?(Note that if the general counsel is also the compliance officer this can create difficulty in this area, since state legal ethics rules would apply to anyone acting under counsel’s direction and control.? If the general counsel/compliance officer is directing the investigations then there is a risk that every compliance investigation, whether conducted by a lawyer or not,? would be subject to state ethics rules (at least as far as the general counsel’s license to practice was concerned).

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"If you tell the truth, you don’t have to remember anything."

- Mark Twain

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