In-House Counsel

By guest author Jeffrey M. Kaplan

How would your compliance and ethics (C&E) program fare if evaluated under the Department of Justice?s corporate criminal charging standards or the Federal Sentencing Guidelines for Organizations? This one-minute self test - based on applicable legal standards, best practices and lessons learned from major C&E failures - may give you a sense of the likelihood of ?passing? what could be a life-or-death test for your company.

1. Does your board oversee compliance with key substantive areas of law (e.g. antitrust)?
2. Is the C&E performance of senior management incented in a meaningful way (such as through function-specific C&E evaluation criteria)?
3. Does your risk assessment process actually provide useful ideas for C&E risk mitigation strategies ? i.e., does it serve the purposes contemplated by the Sentencing Guidelines 2004 revisions (but rarely achieved though traditional ERM-based approaches)?
4. Does your program have sufficient ?reach? ? for instance, to the risk causing business activities of suppliers or independent agents?
5. Have you assessed in a well-documented way the efficacy of your program in high-risk areas (e.g., FCPA compliance)?

Of course, this is by no means an exclusive - let alone complete - list of topics for a C&E self assessment. But hopefully it is a helpful place to start.