My Proposals for the 2016 #SCCEcei – What’s Your Fave?

I’m really excited about the three panel proposals I submitted last night to the Society of Corporate Compliance and Ethics (SCCE), for its 2016 Compliance and Ethics Institute. Thanks to Amy Hutchens, JD, CCEP, Page Motes and Heather Powell for joining in.

Our proposed topics were:

  1. An advance workshop on drafting and negotiating contracts with compliance provisions — this would take the next step from the compliance contract panels that Amy and I did at the CEI in 2014 and this year.
  2. “The Good Reasons Why People Do the Wrong Things” — Exploring the frequent instances when people follow their own ethical code and choose to break rules. (Think about teachers or nurses following their deep ethic of care.) The lesson: it’s not just greed or “bad guys” that lead to misconduct.
  3. “Fostering a Speak-Up Culture: What Really Works” — Now more than ever, it’s critical for compliance professionals and business leaders to focus on what, objectively, has worked best to foster and maintain a culture in which people report suspected wrongdoing freely, constructively, and internally. So how do you make that happen?

I wish they’d let us do all three of them! So tell me, what’s your favorite?IMG_3426

Chalk Lines: On Baseball, Groundskeepers, and Compliance


In honor of the end of baseball season, I am recalling (and revising) some thoughts I originally posted last fall
— and adding some pictures. Hope this takes you out to the ball game.

Catcher and field closer1By Wednesday, the Major League season will come to its last glorious inning. And this afternoon, my son will catch the last game of the year for his Babe Ruth League team, ending a long string of seasons and games that began in March. So

Doing what I do, every time I leave the clean white chalk powder on the rusty matte of the base paths, I think to myself, “Even here, even now, I’m leading compliance!”

Does that make me Mister Baseball Buzzkill? Yeah, maybe so. But I think there is a parallel between the Compliance Officer and the Groundskeeper.

I mean, compliance is in large part about winning while staying inside the lines. And for an organization, who paints those lines?

Government? Regulators? An industry Code? Your Code of Conduct? Sure, but not precisely.The Rules of the Game may specify that the foul line extends from the first base line and the third base line. But it is still the compliance team that has to paint the lines precisely.

To push my metaphor way too far, compliance leadership has to decide the slope of the base path, and the tendency of slow grounders to stay in bounds or to roll foul. And to abandon the realism of my metaphor, we have to decide whether to paint the lines on our own field with a little cushion, so minor fouls don’t really cross the legal line… or paint the lines wide, to give our organizations a bigger playing field but also a bigger risk of stumbling out of bounds.

But most of all, as compliance leaders we have to do the painting. The Rules may say where the foul line should be, but the players would be left to just guess what’s foul and what’s not if we didn’t draw an actual line that they can see while they are playing.  Our teammates rely on our education programs, our communications, and our internal enforcement to know where the dividing line falls.

The author's first-base line left something to be desired, but did not ultimately affect the course of play.
The author’s first-base line was visibly imperfect, but did not ultimately affect the course of play.

Frankly, I can think of times when my base lines left something to be desired, straightness-wise. The umpire might have checked to see how I drew the line (or he might not have), but once play began, he relied on the white line I put down in chalk. It’s a big responsibility.

So you can picture me standing out there today, superimposing all these philosophical musings about work onto our national pastime. Then you can picture my son pointedly reminding me that the game is about to begin, and that I need to get my carcass off the field, and help coach my players to success.

Play ball!

When Contracts and Compliance Collide: Lessons Learned

As important as it usually is that “Compliance” be independent from “Legal,” there are realms in which it’s best when those two functions are full collaborative partners. One of those is the realm of contracts with third parties.

Twitter pix of SCCE panel 15-1005That was an inescapable take-away from a session on October 5th at the SCCE’s annual Compliance and Ethics Institute: “Peer-to-Peer Compliance: Are Y
our Contract Clauses Running Offense and Defense For Your Ethics and Compliance Program
?” I had the honor of presenting the session, with Amy Hutchens of CLEARresources. I also had a complete blast, pretending to negotiate typical clauses with Amy, fielding questions about covenants that troubled SCCE colleagues in the audience, and sharing our lessons-learned.

Lessons such as?

  • That the intersection (collision?) of transactional law and corporate compliance is happening more often, as companies pay more attention to the risks their third-party relationships can pose, and authorities from the Sentencing Commission to the FDA voice their expectation that these risks be managed contractually.
  • That a careless clause can damage the structure or credibility of a company’s compliance regime – but a legal department engaging in zero-sum negotiations, without benefit of a partner from compliance, might miss that risk.
  • That there are two strategic extremes for the company in the “prime contractor” role, each of which can be problematic: Unyieldingly insist on the most favorable language for your side, and eager vendors may agree even though they know they cannot follow the contract they signed. Take an overly flexible position, open to each vendor’s full range of concerns, and your resources may get nibbled to death while you wind up with no predictable consistency among your agreements.

What’s an enlightened company to do? First, consider your goal – is it to get a signed document full of hard-ball victories, or to have third-parties who are actually working with your guidance to engage in compliant behavior? Assuming it is the latter, your company may be better served by living its core values even in its negotiating style, and by taking a firm, comprehensive, but reasonable form of contract to market. And for that to happen, “Legal” and “Compliance” must work together, and understand the other’s issues.

If you missed the session at the CEI – or if you missed the CEI altogether – no worries. We are reprising the session in the form of an SCCE Webinar, on Tuesday, October 13th. Please join us!

10/13 Webinar: Compliance and Commercial Contracts

Here’s the link if you’d like to sign up for my Webinar on Tuesday, October 13, on “Compliance and Commercial Contracts.”

And here’s a link if you’d like more information.

This is a new, longer and expanded web-conference version of the panel I presented at the SCCE Institute on October 5th. You can read more about that in my previous post.

Contracts and Compliance: Two SCCE Panels

After a few days of worrying about Nor’Easters and Hurricane Joaquin, it appears that the Lord is willing and that the creek will not rise – so I will be joining some 1600+ of my compliance and ethics colleagues at the annual Compliance and Ethics Institute of the Society of Corporate Ethics and Compliance (SCCE).

If you are coming as well, I hope you will join Amy Hutchens and me at 1:30 on Monday, October 5th, to explore the increasingly frequent intersection (collision?) of transactional law and corporate compliance.

Our program is titled, “Peer-to-Peer Compliance: Are Your Contract Clauses Running
Offense and Defense For Your Ethics and Compliance Program?” (If you’re keeping track, it’s session #205.)

And even if you are not coming to #SCCEcei, good news! You can still catch our panel, in the form of an SCCE Webinar, on Tuesday, October 13th.

This is our updated remix of the well-received panel we did at the 2014 #SCCEcei. Part of what makes it so much fun is that Amy and I begin the hour by engaging in mock negotiations. Amy plays the lawyer for the big multinational company, I play the lawyer for the smaller vendor/supplier, and we go at it hammer-and-tong over issues like:

  • Which Code of Conduct should apply to a Vendor?
  • What training requirements can a general contractor “push down”?
  • What sales incentives are appropriate?
  • How can a smaller entity resist onerous auditing. monitoring, and indemnification requirements ?

(OK, I  might have shown my character’s bias in that last bullet point.)

After the negotiations, we’ll offer some lessons we’ve learned as compliance-minded transactional lawyers and in-house counsel. Then we’ll open it up to questions, and to any thorny contract clauses with which you might want to challenge us.

This year, we will also spend some of our time on the phenomena of “Quality Agreements,” which are increasingly common for contract manufacturing in the life sciences.

Our point is, when it comes to your company’s routine contracts, the right clause can really bolster your E&C program – and the wrong clause can wreck all your careful work. The trick is knowing which is which, and playing offense and defense so that the contractual playing field leaves your client best positioned for success. That’s something that is not going to happen unless the “legal” and the “compliance” camps in a company work together, and understand the other’s issues.

Live or on the web, I hope you’ll join us!

On Learning Objectives and Duct Tape

The other night, I watched a group of Boy Scouts plan a skit. Their Patrol had the assignment of teaching the rest of the Troop how you could make first aid supplies out of duct tape. They had the idea of doing a funny little show about a Scout falling out of an apple tree, and suddenly needing a stretcher, a splint and a sling. They threw joke lines and sight gags at each other, and put together a nice little script and demonstration.

But I noticed: at no point did one of the boys suggest that they should start their skit by saying, “At the conclusion of this skit, you will have a thorough understanding of how to manipulate industrial-strength adhesive tape for purposes of medical care.”

ducttape

 

 

Just sayin.

 

Compliance, groundskeepers, and chalk lines

Bacon Field, Hopewell, NJ. Photo by author.
Bacon Field, Hopewell, NJ. Photo by author.

This Friday night, my son’s “Babe Ruth Prep” baseball team had its first game of the Fall Ball season. So I found myself, under a clear sky, raking the infield dirt and laying down chalk for the foul lines and the batter’s box. And I had a thought:

“Even here, even now, I’m leading compliance!”

So as I raked, I wondered: is there a parallel between the Compliance Officer and the Groundskeeper?

I mean, compliance is in large part about winning while staying inside the lines. But for an organization, who paints those lines?

Government? Regulators? An industry Code? Your Code of Conduct? Sure, but not precisely. The Rules of the Game may specify that the foul line extends from the first base line and the third base line.. But it is still the compliance team that has to paint the lines precisely.

To push my metaphor way too far, compliance leadership has to decide the slope of the base path, and the tendency of slow grounders to stay in bounds or to roll foul. And to abandon the realism of my metaphor, we have to decide whether to paint the lines on our own field with a little cushion, so minor fouls don’t really cross the legal line… or paint the lines wide, to give our organizations a bigger playing field but also a bigger risk of stumbling out of bounds.

The author's first-base line left something to be desired, but did not ultimately affect the course of play.
The author’s first-base line left something to be desired, but did not ultimately affect the course of play.

But most of all, as compliance leaders we have to do the painting. The Rules may say where the foul line should be, but the players would be left to just guess what’s foul and what’s not if we didn’t draw an actual line that they can see while they are playing.  Our teammates rely on our education programs and our communications to know where the dividing line falls.

And by the way, the umpire might have checked to see where I drew the line (or he might not have), but once play began, he relied on the white line I put down in chalk. It’s a big responsibility.

Then I was aroused from this musing by the realization that the game was about to begin, and that I needed to get off the field, and get on the sidelines to help coach my players to success.

 

Play ball!

Tips for leading from within

I wrote up some nitty-gritty tactics for how to “Lead Good” for the website of the Association of Corporate Counsel (ACC) — the leading trade association for in-house lawyers. My article, “Top Ten Practical Ways to Enrich and Empower Your Compliance Program,” is the ACC’s featured “Top Ten” article of the month.

The sub-text for my recommended methods: Don’t just administer. Be pro-active. Be creative. Lead.