1 Corporate Counsel in the Age of Regulation and Compliance Professor Thomas Ross University of Pittsburgh School of Law
2 Corporate Counsel in the Age of Regulation and Compliance Part I- The Contemporary Corporate Counsel Part II- Pathologies of Non- Compliance Part III- Reform Proposals- Structural and Self-Policed
3 Part I- The Contemporary Corporate Counsel Significant evolution in status and responsibilities More authority and status Facing greater regulatory complexity Enhanced demands internally to control costs and even to add value And the juggling of multiple roles/responsibilities
4 Basic Roles Legal and/or Business Counsel? Cop Counsel Entrepeneur
5 Responsibilities Traditional responsibilities Legal Advisor Transactional facilitator Manager Investigator Corporate officer/secretary
6 And More Strategic planner Crisis advisor Compliance officer Ethics officer Director (?)
7 Discussion Does this basic overview of the evolution square with your sense of what s changed in recent decades? What s missing? What needs to be emphasized?
8 The Great Divide GC and CCO Traditionally, GC was compliance officer. Trend to separation- driven sometimes by regulatory authority, sometimes internal decision Compliance as complex, specialized domain
9 CCO and GC Structure Coherent division? Effects of the division? GC as Partisan, CCO as Gatekeeper? Connection with ERM and Intelligent Legal Risk Management?
10 Discussion Q- what is your sense of the rise of separate compliance departments and the CCO? Do you see this as the irresistible new corporate structure? What s gained? What s lost or risked?
11 Nature of Conflicts Conflicts of interest in ethics law Lawyer self-interest Single Client aspect of conflicts Archetype of Corporate Counsel Conflict/The Dramatic Moment
12 Conflicts in Practice More subtle, more complex Role as complex, evolving, ceaselessly negotiated Surveys suggest that the in house lawyer still holds a very strong sense of her status as lawyer.
13 Discussion Q- what sense of this conflict or tension do you possess? If not dramatic moments, what forms of interaction in your practice reveal the conflict?
14 Part II- Pathologies of Non-Compliance Problem of Independence Idea of the lawyer as independent Law s reflection of the assumption of independence, e.g, the attorney-client privilege Difficulties for outside lawyer
15 Independence and In House Counsel Single client aspect Corporate culture/insider aspect Law s reflection of the difficulties, e.g., corporate representation in derivative actions European Model
16 Dan Ariely s Studies on Cheating Basic Experiment Cheating a little Insiders and outsiders Separation of $$ from cheating
17 Discussion Q- how powerful is the sense of identity as corporate insider? Does it feel like a constraint on the exercise of independent judgment? And how much does that insider status assist you in influencing business managers?
18 Problems in the very idea of Legal Risk Management Basic Concept Poles of risk Who decides?
19 Deloitte White Paper The Risk Intelligent CCO With regulations and reputational concerns pushing compliance leaders to the top levels of management, the time is ripe for them to act. For the Risk Intelligent CCO, the pursuit of Risk Intelligent compliance can be an opportunity to put compliance on a value-driven footing that can transform compliance, long seen as a chore, into a valued and valuable business asset. (emphasis added)
20 Legal Risk Management? Conceptualizations Matter or What s in a Name? Legal Compliance as Business Asset Back to who decides?
21 Discussion Q- does the new terminology, the rise of compliance and the decline of the GC s role as the arbiter of legal constraints, matter? If so, in what ways? Do you see legal risk decisions as simply another facet of enterprise risk management?
22 Problem of Interpreting Law to Its Vanishing Point Andy Fastow, former Enron CFP, convicted felon- Speaking at the 2013 Convention of Certified Fraud Examiners In Las Vegas. Accounting rules and regulations and securities laws and regulation are vague. They re complex What I did at Enron and what we tended to do as a company [was] to view that complexity, that vagueness not as a problem, but as an opportunity. The only question was do the rules allow it or do the rules allow an interpretation that will allow it?
23 The Academy s Complicity Blame it on the Realists Critical inquiry and imaginative response What limits then to our interpretive capacity? Interpretation and risk management
24 Discussion Q- in a practice world where the best lawyers deploying the skills we taught them can transform any desired strategy into at least legally questionable how can lines be drawn?
25 Patterns and Compliance GM ignition switch defect case Other Enron ethics experts Scienter as product of what you know and what you do
26 Part III- Reform Proposals- Structural and Self-Policed Structural- centralized or diffused? Reporting and communication channels? Enron s example De-centralized structure- risks and benefits Forum shopping phenomenon
27 Separation of GC and Compliance Driven by regulators on assumption of greater efficacy in achieving corporate compliance Chosen by companies on same assumption but also? CCO s reporting to CEO but direct access to BOD?
28 Discussion From the trenches, what is your sense of the benefits and risks of centralized v. de-centralized structures in legal compliance programs? Of separate compliance departments and CCO s? And generally how much depends on structure and how much on who?
29 Self-policing Reform Bar s Narrative of Self-Regulation Professional self-conception Conception of other relevant actorsregulators, business managers, the client
30 Self-policed reformself awareness and mindfulness Idea of mindfulness Insufficiency of knowledge, necessity of will A professional life well-lived
31 Who is the Zen Master?