Lawyers and CCOs on the Front Line: Who’s on First? What’s on Second
I never thought the day would come but it has – I have figured out a way to make Abbott and Costello relevant to the compliance profession.
We all know their famous routine – “Who’s on First?” If you need a good laugh, check it out HERE.
When it comes to lawyers and compliance professionals, the Abbott and Costello hilarious question is extremely relevant. Some might say that Abbott and Costello have a relationship that is remarkably similar to lawyers and compliance professionals.
Lawyers can be thin-skinned and territorial. So can compliance professionals. When it comes down to legal issues, lawyers do not have a monopoly on the law. I know that sounds controversial but it is not intended to inflame. Nor is my comment controversial.
My good friend and colleague, Pat Gnazzo, and I have discussed the issue of who is on the “front lines” when it comes to certain legal issues like antitrust and corruption.
Are the lawyers the first line of defense and the chief compliance officers the second line of defense? Or is it vice versa.
This may sound like a theoretical discussion with no practical importance but bear with me.
The debate is not over whether the lawyer should handle a question of how antitrust or anti-corruption law applies to a given situation. The answer to that question is easy – the lawyer should handle the issue because the lawyer knows the law. In this case, the lawyer is and should always be the first line of defense.
Assuming that the issue is whether or not a company is violating a specific antitrust or anti-corruption policy, or who is responsible for monitoring company employees and their compliance with such policies, the chief compliance officer is and should always be the first line of defense.
As I frequently repeat myself, the lawyer’s job is to define the lines in the road, and the compliance professional’s job is to make sure that the company does not travel outside the lines. This analogy is helpful in defining exactly how lawyers should coordinate and collaborate with compliance professionals and vice versa.
In many cases, the compliance professional will be the backup to the lawyer and conversely, the lawyer will be the backup to the compliance professional. This is not an issue of who is more important, who has a better understanding of the law, or who understands compliance better. In reality, lawyers and compliance professionals need each other to do their jobs effectively.
Lawyers and compliance professionals are natural allies. Lawyers just need to acknowledge that compliance professionals have a different mandate.
A CCO is responsible for more than just compliance with the law. In fact, a CCO is responsible for a company’s ethical culture, promoting compliance with the law, and fostering a culture that adheres to ethical principles in its business practices, strategic decisions and business operations.
When the mandates are separated and defined, it becomes very clear that lawyers and compliance professionals have a different mission – the sooner they acknowledge this important distinction, the sooner we can all just get along.
One quick and easy solution to the distinction between lawyers and compliance professionals is to create a set of protocols for common issues that recur in companies. A set of protocols will define the issue, who has primary responsibility for the issue and make sure that lawyers and compliance professionals play well together in the company sandbox.
The last thing any company needs is a recurring dispute between the legal and the compliance function.
When the General Counsel and CCO do not get along, everyone in the company suffers. When egos are more important than compliance with the law and promoting an ethical culture, the company can spin out of control in important high-risk areas.
General Counsels and CCOs need to lay down their arms, embrace each other (sing the song “Getting to Know You,” a famous SNL skit from my years with Henry Kissinger, played by John Belushi, leading the chorus), and get to work on their separate and distinct mandates, using a set of protocols to ensure coordination and collaboration.
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