FCPA Compliance and Ethics Blog

May 15, 2012

Letter to Cicero – Lesson for the Compliance Practitioner from the Roman Republic

Most people will recognize the name Cicero as that of one of the greatest orators of the Roman Republic. In 64 BC he ran for Consul and was elected, beginning his term in March, 63 BC. In this month’s issue of Foreign Affairs, the political strategist James Carville writes a commentary based upon a letter that Quintus Tullius Cicero (the younger brother) wrote to Marcus Tullius Cicero (the older brother and the one we remember as ‘Cicero’) about how to run a political campaign. Although James Carville uses the letter to discuss political campaigns, I found some interesting prescriptions for the (modern day) compliance practitioner.

Use Your Supporters

Cicero the Younger advised his older brother that “Few outsiders have the number and variety of supporters that you do.” I believe that the vast majority of employees want to do business in an ethical manner, compliant with whatever anti-corruption or anti-bribery law that they might operate under, whether it is the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. This translates into not only employees who will follow the requirements of your company’s Code of Conduct and compliance program; but also means that these people can help to not only sustain but grow your compliance program.

Work to Maintain the Goodwill of Your Supporters

Cicero the Younger also advised that his older brother provide helpful advice to his supporters and to also reach out to them by asking for their counsel in return. In the US Department of Justice’s (DOJ) 13 points of a minimum best practices compliance program, providing day-to-day compliance advice is a key component. Item No. 9 Ongoing Advice and Guidance reads in part:

The Company should establish or maintain an effective system for: a. Providing guidance and advice to directors, officers, employees, and, where necessary and appropriate, agents and business partners, on complying with the Company’s anti-corruption compliance policies, standards, and procedures, including when they need advice on an urgent basis or in any foreign jurisdiction in which the Company operates;

The DOJ clearly wants a designated person or persons available to provide compliance advice to company employees on a regular, as needed basis. But Cicero the Younger goes further by saying that providing such advice can cultivate and maintain goodwill. This is certainly true for the compliance practitioner.

Cultivate Relationships

The third point that Cicero the Younger advised his brother to engage upon was to “cultivate relationships” with key decision makers. These relationships will not only assist in winning the election but when the time comes for you to govern, these same relationships will assist you in educating people on your programs.

These three steps, as advised by Cicero the Younger, reminded me of a technique used by Leonard Shen, the Chief Compliance Officer (CCO) at PayPal. Shen said that in a company which is initiating its compliance program, it can be perceived as a change of culture. To alleviate some employee fears, he used an approached which worked to alleviate those types of concerns but had the additional benefit of providing enough information to perform a robust assessment which could be used to form the basis of an effective compliance program. He termed this type of approach as one to “engage and educate.” While the approach had a two word name, it actually had three purposes; (1) to engage the employees in what would form the basis for an enhanced compliance program; (2) to educate the employees generally in compliance and ethical behavior; and (3) through the engagement of employees, to gather information which could be used to form the basis of a risk assessment.

A.    Engagement

Shen and his compliance team traveled to multiple company locations, across the globe, to meet with as many employees as possible. A large number these meetings were town hall settings, and key employee leaders, key stakeholders and employees identified as high risk, due to interaction with foreign governmental official touch-points, were met with individually or in smaller groups. Shen and his team listened to their compliance concerns and more importantly took their compliance ideas back to the home office.

From this engagement, the team received several thousand employee suggestions regarding enhancements to the company’s compliance program. After returning to the US, Shen and his team winnowed down this large number to a more manageable number, somewhere in the range of a couple of hundred. These formed the basis of a large core of the enhancements to the existing company compliance program.

After the enhanced compliance program was rolled out formal training began. During the training, the team was able to give specific examples of how employee input led to the changes in the enhanced program. This engaged the employees and made them feel like they were a part of, and had a vested interest in, the company’s compliance program. This employee engagement led to employee buy-in.

B.    Education

During the town hall meetings, and the smaller more informal group meetings, Shen and his team were doing more than simply listening, they were also training. However, the training was not on specific compliance provisions; it was more generally on overall ethics and how the employees could use compliance as a business tool.

As pointed out by another speaker at Compliance Week 2011, most ethical standards of a company are not found in an existing compliance program, they are found in the general anti-discrimination guidelines and ethical business practices, such anti-competitiveness and use of customer confidential information prohibitions. Often these general concepts can be found in a company’s overall Code of Conduct or similar statement of business ethics; workplace anti-discrimination and anti-harassment guidelines can be found in Human Resource policies and procedures. Concepts such as anti-competitiveness and use of customer and competitor’s illegally obtained confidential information may be found in anti-trust or other business practice focused guidelines.

Shen and his team’s aim for the education component of “Engage and Education” was to have the company employee’s start thinking about doing business the ethical way. It was ethical concept based training designed to be in contrast to a rules based approach, where employees believe they are taught the rules, and then try to see how close they can get to the line of violating the compliance rule without actually stepping over the line. Moreover, by having this general ethical business training, it laid the groundwork for the enhancement of the company’s compliance program and the training that would occur when the enhancement was rolled out.

It is often said in the legal profession that there are no new ideas. This may also be true in the compliance profession. However, there are innumerable resources from which the compliance practitioner can draw inspiration and the Letter to Cicero is certainly one.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

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