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Ethics and the New Compliance Ethos
All of us who are involved with compliance programs as advisers and counselors must take heed of recent developments at the U.S. Sentencing Commission and the Organization for Economic Cooperation and Development (OECD). While these developments alone are significant, they reflect a continuing sea change in compliance philosophy ' one that prioritizes “ethics” and “values” as the central component of all compliance programs. At first blush, high-minded talk about ethics and values sounds good, but a more frank dialogue is warranted about just what “ethics” means and whether this development unfairly favors enforcement officials.
Take Me to Your Leader
In April, the Sentencing Commission promulgated changes to Chapter Eight of the Guidelines, applicable to businesses. Section 8B2 advises a reduction in the culpability score for businesses that have established “Compliance and Ethics Programs.” In that same section, the Guidelines set forth criteria for effective programs. These same criteria are mirrored in the various Department of Justice (DOJ) policy memoranda regarding when to prosecute businesses. The Commission's views on what constitutes an effective compliance program are therefore important, and the changes detailed here will take effect on Nov. 1 unless Congress intervenes (which is not expected).
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