Dr. No Versus Problem Solving
Imagination is more important than knowledge – Albert Einstein
For companies trying to comply with the law, it is difficult to find quality attorneys to help. Forgive me for criticizing my profession but many of my colleagues take refuge in mechanical, non-creative thinking. To be a good lawyer and a value add for a company, we should try and be creative and solve problems. You can always tell when an attorney lacks experience or proper perspective – they take refuge in the negative. It is easy to say “No” or how something could violate the law, but it is more difficult to find a solution which minimizes risk and complies with the law.
In almost every case, there is a solution to a problem which minimizes the risk. The ultimate decision whether to go forward in the face of some risks depends on risk sensitivity versus benefits to the business. Some general principles and strategies include the need to document a company’s good faith consideration of issues. Such documentation will negate any inference of criminal intent. It is important to demonstrate good faith attempts to comply based on adherence to procedures and reasonable interpretations of the law. For attorneys working with a company, that means acquiring all the facts, listening to business and sales staff, carefully analyzing the issues, and working together with your client to come up with a possible solution.
By working with your clients, an attorney will increase a company’s compliance. A careful weighing of risk, commitment to compliance and business needs will improve “buy-in” at every level of the company. If you can avoid a “Dr. No” perception, you will help create a positive compliance structure which emphasizes common sense, communication and issue identification, and solutions to common problems.
This requires a new mindset but it is certain to pay off – attorneys can become part of the business operations rather than viewed as a “cop on the beat” within the company. All too often bribery violations occur after the legal and compliance staff have become ostracized or ignored in the overall business operations. In some cases, this can lead to bribery violations, and if not addressed, the company is at risk of a systematic breakdown of compliance, leading to significant enforcement actions.