Conflict of Interest Blog

A new blog for compliance professionals

My law partner Rebecca Walker and I recently launched the Compliance Program Assessment Blog – a first-of-its-kind resource devoted entirely to the why and how of conducting C&E program assessments.

We hope you find it useful.


Building an ethical culture: where to begin

Increasingly, official and other important expectations regarding compliance & ethics (“C&E”) programs have a culture-related component. But where should C&E professionals start in addressing this important but challenging area?

One very useful resource is Regulating For Ethical Culture, recently published in Behavioral Science & Policy,  by Linda K. Treviño of the Smeal College of Business, the Pennsylvania State University; Jonathan Haidt of NYU’s Stern School of Business; and Azish E. Filabi of Ethical Systems. (Note that Treviño and Haidt are also members of Ethical Systems, as am I.)

In this article the authors:

Describe the origins in the Federal Sentencing Guidelines for Organizations of the government’s ethical culture expectations, and also recent regulatory interest in culture, particularly in the banking industry.

Provide an overview of what is meant by culture in the setting of a business organization – which includes both formal systems (codes, training) and informal ones (“role models [managers at all levels], norms of daily behavior, rituals that help members understand the organization’s identity and what it values, myths and stories people tell about the organization, and the language people use in daily behavior”). The authors further note: “Senior leaders are critical to establishing an ethical culture—they provide resources for effective programs, send values-based messages, and serve as role models for ethical behavior and the use of ethical language. They have the potential to influence every other system within the organization. Critically, leaders also need to attend to the alignment of the organization’s cultural systems. When all of the constituent systems support ethical behavior, the company will have an ethical culture, although it needs constant attention to keep it that way. When the culture is in a state of misalignment—when cultural systems send mixed messages—the company is less likely to have an ethical culture.”

Offer guidance for assessing ethical culture in business organizations. Among other things they state that “anonymous surveys and focus groups (often in combination) have been the assessment methods of choice.” (Note: based on my experience with compliance assessments, I’m less sanguine about getting candid comments by employees in focus groups than by using anonymous surveys.) They also – based on research done by Treviño and colleagues – identify outcomes that C&E programs should seek to achieve – with one or more sample survey items for each. (The program outcomes are: “Reduced observations of unethical and illegal behaviors”; “Increased employee awareness of ethical and legal issues that arise at work”; “Creation of conditions that increase employee willingness to seek ethical and legal advice within the company”; “Increased employee willingness to report bad news to management”; “Increased employee willingness to report ethical violations to management, such as via ethics hotlines (often anonymous) and other reporting channels”; “Increased employee perception that the program is contributing to better (and more ethical) decision making in the organization”; and “Increased employee commitment to the organization.” (Note that this last outcome could “cut both ways” and one might add others to this list, but overall both the outcomes and related survey questions are, in my view, fit for purpose. )

Discuss five aspect of ethical culture that can have a profound effect on employee behavior: the orientation of the C&E program (e.g., values based, compliance based): ethical leadership, ethical climate, fairness and trust.

Finally, the authors encourage companies to assess culture regularly; to “[i]dentify, through data and investigations, how the organizational culture contributes to misconduct”; and to “[d]esign interventions to improve conduct and culture.”

There’s much more in this article that will be helpful not only to those just getting started in seeking to develop ethical cultures in their respective organizations but also to those seeking to maintain such cultures over the long haul.

Nonmonetary conflicts of interest

In “Using behavioral ethics to curb corruption” – recently published in Behavioral Science & Policy – Yuval Feldman of Bar-Ilan University notes  that “Classic studies on the corrupting power of money focus on politicians influenced by campaign donations and on physicians whose health care decisions are affected by the receipt of drug industry money and perks. In contrast, more recent studies have analyzed situations where a government regulator has no financial ties to a private entity being regulated but does have social ties to the organization or its members, such as sharing a group identity, a professional background, a social class, or an ideological perspective. In that situation, regulators were likely to treat those being regulated more leniently. Thus, even relatively benign seeming tendencies that regulations tend to ignore—such as giving preference to people having a shared social identity—could be as corrupting as the financial ties that are so heavily regulated in most legal regimes.”

Feldman cites two studies that support this view: “In 2014… investigators in the Netherlands showed that regulators in the financial sector who had previously worked in that sector were less inclined to enforce regulations against employees who shared their background. Similarly, in a 2013 look at the regulation of the U.S. financial industry before the 2008 crisis, James Kwak noted that the weak regulation at the time was not strictly a case of regulatory capture, in which regulatory agencies serve the industry they were meant to police without concern for the public good. Some regulators, he argued, intended to protect the public, but cultural similarities with those being regulated, such as having graduated from the same schools, prevented regulators from doing their job effectively. In such instances, people often convince themselves that their responses to nonmonetary influences are legitimate, mistakenly thinking that because such influences usually go unregulated, they are unlikely to be ethically problematic.”

I agree that the danger posed by nonmonetary COIs tend to be underappreciated and have tried to make this point in prior posts. Included are: glory as a conflict of interest,  and friendship and COIs (discussed in the second case in this post).

But perhaps the most interesting case of a nonmonetary COI to appear in this blog  concerned an issue of “director independence in an internal investigation [that] arose several years ago in a case brought by the shareholders of Oracle [against the company’s board]. There, the Delaware Court of Chancery ruled that a board special litigation committee consisting of two Stanford professors could not be considered independent in an internal investigation concerning alleged insider trading by fellow board members, because the target directors had close ties to that university: ‘It is no easy task to decide whether to accuse a fellow director of insider trading,’ the court wrote, and for the company to have compounded ‘that difficulty by requiring [special litigation committee] members to consider accusing a fellow professor and two large benefactors of their university’ of a criminal act was ‘inconsistent with the concept of independence recognized by our law.’”

Feldman closes his discussion of this issue with a call for “[a]dditional controlled research … on  the ways that nonmonetary influences cause corruption and on how they can lead people to engage unwittingly in wrongdoing.” I agree, but also think using the research that is already available, compliance and ethics officers can deploy internal education about nonmonetary COIs into policies, training and other C&E communications and investigation/discipline protocols.

A valuable behavioral ethics and compliance resource

The Institute of Business Ethics recently published Using Behavioural Ethics to improve your Ethics Programme, a Business Ethics Briefing. For those interested in “behavioral ethics and compliance” – a frequently addressed topic in this blog – the briefing is a must read.

Among the suggestions made in this piece is: “Ethics needs to become part of [an organization’s] reward, recognition and promotion system.” While, to some extent,  one could reach this conclusion using a classical economics framework, the IBE briefing approaches it from an “availability bias” perspective. Specifically,  they write: “the availability bias refers to the human tendency to judge an event by the ease with which examples of the event can be retrieved from your memory. The availability bias leads people to overestimate the likelihood of something happening because a similar event has either happened recently or because they feel emotional about a previous similar event. This has a significant impact on the ability of organisations to promote ethics. If employees can recall a case where a person has been promoted or rewarded for the commercial results they achieved even when it is widely known that how they achieved them was ethically questionable, they will think that this is the norm in the organisation – even if it was just a one off event. On the other hand, publicly recognising and rewarding people that distinguish themselves for living up to the organisation’s ethical values or communicating positive stories internally can be a quick and effective way to send employees the message that ethics is important in the organisation.”

Another suggestion from IBE  – and, in my view, a best practice –  arises out of the famous “Good Samaritan” behavioral  experiment, which demonstrated that time pressure could be a powerful cause of unethical behavior. The Briefing describes how GlaxoSmithKline “used this research as a basis for developing their own scenario [in their ethics training] that addresses the topic of work-home balance and time pressure. This has enabled employees to discuss the issue openly and increased awareness of the role that time pressure can have on our decision making abilities.”

A third suggestion concerns the “framing effect,” which shows that “[c]hoices can be worded in a way that highlights the positive or negative aspects of the same decision, leading to changes in their relative attractiveness.” Specifically, the briefing  describes how “[t]he global management, engineering and development consultancy Mott MacDonald recognised this when they changed the name of their reporting line from ‘whistleblowing facility’ to adopt a more positive name – Speak Up Line.  As a result, they noticed a significant increase in the number of concerns raised.”

Finally, with respect to the core behavioral area of “nudging,” IBE “suggests that an approach that focuses on ethics – communicating the ethical values, explaining how and why an organisation does its business, encouraging individual judgement based on ethical values – is at least as important as having clear rules of conduct that employees must follow and the related sanctions.” Note that I want to believe this is so and to some extent do, but I also have some doubts – or at least questions – about it, as discussed in this earlier post.

The briefing has various other helpful suggestions, but as a nudge to get you to read the original I’ll  stop here.

The latest on compliance programs from the Department of Justice

For at least three decades the U.S. Department of Justice has been encouraging – including, in some cases, incenting – companies to develop and implement effective compliance programs, most recently in Deputy Attorney General Rod Rosenstein’s speech Monday at the annual Compliance Week conference in Washington DC. Every C&E professional should read his remarks – which can be found here.  Note that the Deputy AG broke no new ground with the speech. But – as the latest word on the subject from DOJ – it can be  useful to draw from in preparing compliance training, particularly for the Board and senior management, in explaining  the benefits of having a strong program generally and of assessing risks and program efficacy in particular, and in other matters.

Some of the highlights are:

When companies come under investigation, we ask two principal questions about the company’s compliance function: First, what was the state of the compliance program at the time of the improper conduct? Second, what is the current state of the compliance function, after remediation to address any lessons learned? The first question focuses on whether there was an adequate compliance function. The 2008 revisions to the Principles of Federal Prosecution of Business Organizations are known as the “Filip Factors” – after a former Deputy Attorney General. The Department directed prosecutors to determine “whether a corporation’s compliance program is merely a ‘paper program’ or whether it was designed, implemented, reviewed, and revised, as appropriate, in an effective manner.”

(My note: while not new, it is good to see the inclusion here of the efficacy of a program at the time of the misconduct in question, because sometimes only post-wrongdoing-based compliance is listed by the DOJ  as worth their consideration.)

– At the same time, we recognize that even the best compliance program may not stop individual bad actors. Corporate compliance programs are sometimes compared to preventative medicine. It’s a good analogy.  Getting an annual physical doesn’t mean you won’t get sick. But those screenings – just like a robust compliance program – help to ensure that issues will be detected and addressed at an early stage.

(The preventive medicine comparison – while also not new – is potentially helpful because it underscores that compliance is, and is seen by DOJ as, a true no-brainer.)

– Compliance is not a one-size-fits-all proposition… Even blue-chip, multinational corporations with strong preexisting programs must continuously evaluate their risk profiles and adapt to new circumstances.

(This should, of course, be helpful to E&C officers in persuading their companies to undertake  risk and program assessments.)

– Our Department does not use a rigid formula to assess the effectiveness of corporate compliance. Each company’s risk profile and solutions to reduce its risks warrant consideration. We make an individualized determination in each case.

(This should also be helpful in moving ahead on risk and program assessments.)

So, all told, good stuff – but only if members of the E&C community put it to use.


Does your conflict of interest risk assessment do this?

My latest column in Compliance & Ethics Professional, available on page 2 of attached PDF.

I hope you find it useful.

Directors and compliance programs: a look at the law

Many years ago, I was previewing for a general counsel a presentation on compliance programs that  I was planning to make to his company’s board of directors, and I mentioned the real  prospect of individual liability under the Delaware Chancery Court’s 1996 opinion in the Caremark case.  (Caremark – for readers who aren’t US lawyers or compliance professionals – is probably the nation’s most often cited compliance program case in modern times.) The GC stopped me to note that the potential for such liability was actually remote under Caremark. He was right and I have tried to avoid making the same mistake again.

In an article to be published in the Temple Law Review – and summarized on the Harvard Law School Corporate Governance Forum – Professor Donald C. Langevoort of the Georgetown University Law Center takes a look at the role that Caremark has played over the last 20 years in encouraging directors to promote compliance at their respective companies. It is a thoughtful and informative piece that is strongly recommended for those who advise boards on C&E matters. Among other things, it can help such advisors avoid making the mistake that I nearly did, and instead  focus on the legal expectations that matter most to boards.

He starts with a page of history: There is a lively academic debate over whether Caremark’s causal impact on the unmistakable growth curve of compliance has been overstated. After all, the holding in the decision (approving a de minimis settlement) was that the standard for holding directors of Delaware corporations liable for monetary damages under a test requiring “sustained and systematic indifference” to compliance oversight would be exceedingly hard to prove. Plus federal law had already been trending strongly in the direction of a robust corporate compliance obligation in many disparate fields of regulation (e.g., antitrust, financial services, healthcare, defense contracting) and—as Caremark duly noted—the Organizational Sentencing Guidelines had made the presence and quality of compliance (including board oversight) a substantial factor in the size and severity of any federal penalty for criminal wrongdoing. Within a few years would come even bigger waves of pressure from Washington, via the emergence of deferred prosecution agreements, corporate charging decisions, and—for public companies—the mandates of the Sarbanes-Oxley Act, which required new board structures, internal control processes and whistleblower protections to address the risk of financial misreporting, which arises in the face of any material corporate wrongdoing. …But we need not obsess on history. Caremark is at the very least a label attached to what all now agree is a necessary and proper subject of attention for every board of directors: corporate compliance as a function within the broader task of enterprise risk management.

Langevoort next looks at the case law under Caremark regarding directors who were allegedly confronted with “red flags” of wrongdoing  within their respective companies. He notes that that law creates an arguably perverse incentive for management to not escalate such information to the board, at least where (as is often the case) there is some ambiguity as to its meaning. Nonetheless, he writes: Today, however, I doubt that well-advised boards take this position (though some probably wish they could). The reason, once again, stems mainly from pressures from regulators and enforcers at the federal level, who have come to believe in the value of a stronger board-level presence in compliance. The Organizational Sentencing Guidelines, COSO principles and numerous regulatory pronouncements seek not only board approval of written policies and procedures and key compliance personnel decisions, but a much more interactive involvement that includes reporting lines running from the chief compliance officer (and perhaps chief legal officer) directly to the board, unfiltered by senior executives.

Finally, he asks whether Caremark was incomplete with respect to its understanding of the causes of and means to prevent wrongdoing by companies: We are increasingly coming to see how and why ethical and legal lapses occur. Corporate cultures are belief systems—transmitting to loyal, committed managers and employees a sense of what is valued, and what is denigrated. They help coordinate the activities of numerous stakeholders, an essential task in making the complex corporate system function. When corporations are under immense (often shareholder-driven) competitive pressure to succeed, belief systems can become facilitators for what it takes to survive and thrive, the grease in the corporate machinery. When circumstances create temptations to behave illegally, those beliefs can provide rationalizations that explain why what is profitable is also morally acceptable, via what psychologists call motivated inference. Once these kinds of rationalizations take hold, wrongdoing starts to happen, in small steps, then bigger ones…Caremark gives no hint of any of this, though that is not a criticism. At the time, culture and norms were not central to thinking about governance or compliance.

The past twenty years has seen a significant transformation regarding these matters which – Caremark aside – creates new and heightened expectations when it comes to the sort of regulatory pronouncements Langevoort features in his article.

Of course, corporate directors often need help when it comes to understanding and addressing their respective organizations’ culture and norms. Here are some initial thoughts of mine on the topic of culture assessments , but there is obviously a lot more that can be and has been said about it (including by Professor Langevoort)   And, I look forward to the next twenty years – when we will see if the law regarding directors and compliance lives up to the potential suggested by our emerging knowledge about corporate culture and wrongdoing.

Finally, yesterday I spoke with a reader of the blog who asked how much the point of the piece – that directors’ most significant C&E expectations come not from Caremark but from regulatory pronouncements – really mattered.  I think it does matter, because if directors believe that the C&E officers who report to the board are wrong about the law they may be less inclined to trust them on other matters, which could be bad for all involved.

Should compliance officers be optimists?

First, a  short but intriguing piece from the back pages (in 2007) of the ABA Journal:

Lawyers are often the exception to the rule. It’s no different, researchers are finding, in studies of optimists. A study by Duke University researchers found that, on the whole, optimistic people do better in life, the Wall Street Journal reports (sub. req.). They work more hours, save more money, pay credit card bills more promptly, are less likely to smoke, and are more likely to remarry after divorce. (Those who were overly optimistic, however, didn’t make such good judgments.) Martin Seligman of the University of Pennsylvania, who studies positive psychology, says most optimists do better in life than merited by their talents alone. But with lawyers, the opposite is true. Seligman’s survey of law students at the University of Virginia found that pessimists got better grades, were more likely to make law review and got better job offers. “In law,” he told the newspaper, “pessimism is considered prudence.”

Of course, being a lawyer and being a compliance officer are not the same thing. But given the substantial overlap between the two – at least as a general matter – this research should be of some interest to those in the latter line of work.

Next, a somewhat related piece from the back pages (in 2015) of the COI Blog  on finding the right degree of ethical confidence in a given organization:

“M]uch of the field of “behavioral ethics” is addressed to proving that “we are not as ethical as we think.” …The view of human nature underlying this key insight predates the behavioral ethics field. Perhaps most famously, Judge Learned Hand said in 1944: “The spirit of liberty is the spirit which is not too sure that it is right.” I believe that this is a good way to view the spirit of compliance and ethics too. At least as applied to C&E, this is not to say that we should be relativistic about what is right. Rather, we should be skeptical about our ability to do what is right when pressures or temptations pull us in the wrong direction. Those likely to be confronted by risks of misconduct (e.g., corruption or competition law violations) should strive to be ethically alert – which is not always consistent with being highly confident. Indeed, while the focus on corporate culture is a generally a very positive development in the C&E field, it carries the danger that having a strong culture could be seen as obviating the need for the regular “blocking and tackling” that C&E programs are based on. This is particularly true of glorification of – and over-reliance in some companies on – the “tone at the top.” On the other hand, one should also be skeptical about the value of pessimism. Given how relatively new the C&E field is – and the tendency for many to view it as a fad which has overstayed its welcome – a truly pessimistic view can effectively scuttle a compliance program. That is, some degree of optimism is absolutely necessary for the effective operation of a C&E program – whether it is a salesperson choosing to forgo a questionable business opportunity or a mid-level manager deciding whether to call the hotline. Optimism is also necessary for boards of directors and senior managers in determining whether to invest the substantial time and other company resources needed to develop and maintain an effective C&E program, particularly given that the empirical case for such programs is still a work in progress. For every company, the right C&E confidence quotient will be different. But all should to some degree be both skeptical and optimistic.

What should be added to this topic in 2018?

I think the case for optimism has grown – particularly in the past year. By this I mean not that things are looking better than in the recent past but that the need for an optimistic cast of mind may be at an all-time high.

This is due (in my view) to events in the political, rather than business, realm – and particularly the assault by the Trump administration on notions of honor, truthfulness, responsibility, prudence, generosity, humility and other foundational elements of any ethical system. My hope – and belief – is that being optimistic about these characteristics in one’s job can help protect them in the public sphere. This is clearly an optimistic case for optimism – but I do believe it has merit, at least as an intuitive matter.

Yesterday, hundreds of thousands of individuals gathered around the world in support of common sense gun control. Just as – as an old saying goes – there are no atheists in a foxhole, so it seems likely to me that there were very few pessimists in these crowds, at least not based on what I heard and saw at the rally I attended.

Of course, there will always be a substantial place for pessimism when it comes to law, C&E and politics. But now may be a time to accentuate the positive.

Accurately categorizing conflicts of interest

My most recent column in Compliance & Ethics Professional (p2 of attached PDF) briefly looks at three areas where it is important to accurately categorize COIs.

You might find it useful in drafting COI policies or designing risk assessments.


Five topics for compliance and ethics culture assessments

Compliance program assessments – which seem to be increasingly popular with both government enforcement personnel and companies seeking to enhance their programs as a matter of good corporate citizenship – can and generally should cover a lot of ground. And that ground ought to include the organization’s ethical culture.

Of course, the notion of ethical culture itself is pretty broad, and there is no one right way for assessments of this sort to be conducted. But there are certain topics which  –  in my view – are worth considering in virtually any given assessment.

Perhaps the most obvious of these is “tone at the top,” which in an assessment itself  tends to have various components, including:

– what senior managers say to underscore their expectation that employees will act lawfully and ethically;

– the related but distinct question about what senior managers do to underscore the expectation that employees will follow all dictates of the organization’s C&E program, such as those concerning taking training or conducting vendor due diligence;

– inquiries designed to ascertain whether senior managers’ own conduct undermines their  C&E messaging; and

– similar questions regarding various levels of management besides those at the very top (such as functional or business unit leadership or those further down the organizational ladder).  One best practice to consider: having those at or near the top engaged in a visible way in reminding delinquents of the need to take mandatory C&E training.

Another obvious avenue for assessment concerns an organization’s speak-up culture. Perhaps the most important facet of this sort of inquiry is assessing not only the environment regarding true C&E matters but all kinds of workplace  concerns and questions, as reticence to speak up in one area may affect (or reflect) reticence in others. Of course, relevant to a company’s speak-up culture is its degree of “organizational justice,” and the extent to which wrongdoing is responded to in a fair and sufficiently rigorous way.

A third and somewhat less obvious aspect of culture assessment concerns rule following, and the extent to which it is genuinely expected in an organization. Here too it may be helpful to think beyond core compliance program  rules to those concerning other aspects of a company’s business, such as rules covered by a delegation of authority policy.

Note however,  that for the ethics component of an assessment a strong rule-following culture may be less than ideal. But from a pure compliance perspective it is hard to beat a deep embrace of rules, as further discussed here.

A fourth and also less obvious area for assessment concerns industry culture. While not true of all or even most companies, in some industries such types of  culture may be more of a source of risk than the organizational type. This is particularly true of industries with a significant degree of inter-company mobility.

Fifth – as is obvious from many cases of non-compliance, most recently the high-profile Wells Fargo scandal   – a key aspect of culture is the extent to which pressure/incentives make it difficult for employees to do their jobs in an ethical and law-abiding way. Indeed, this may be the most important cultural attribute of all – and should be explored fully in any assessment, with aspects of this inquiry including both economic “carrots” and “sticks,” as well as non-economic incentives.

Finally, I should emphasize that this piece is not intended to be a comprehensive overview of all areas to cover in a culture assessments, which is a complex and hugely important topic. But hopefully it will be helpful to those designing assessments for the first time, among others.