Global compliance has given counsel a mountain to climb

The long climb of compliance was a key topic for speakers during a series of conferences attended by more than 200 leading in-house counsel and compliance officers in New York and New Jersey in October.

Hosted by the Association of Corporate Counsel America and Eversheds, the conference materials depicted hikers scaling a snowy peak with the title ‘Meeting the Challenges of Global Compliance: Are We There Yet?’

Delegates returned a unanimous verdict: no, we are certainly not. Using an audience response system to survey confidentially the delegates, one in five respondents rated their global compliance efforts as ‘fair to poor’; 56 per cent said that, despite progress, their global compliance efforts needed improving.

Nearly half said they do not have adequate staffing and funds to support effective compliance, and some 60 per cent questioned whether their boards of directors understand the legal and regulatory issues their companies face worldwide.

Increasingly, accountability rests directly with US corporate counsel for their organisations’ compliance records, yet in the last year more US corporate counsel were indicted for compliance problems in their companies than in any previous year.

Wherever their headquarters, global companies face a complex, demanding regulatory environment. In Fulbright & Jaworski’s recent survey of UK companies, corporate counsel said regulatory issues were their greatest concern. No wonder. It’s a mammoth task to keep up with laws and regulations domestically and across the globe while providing legal transactional support.

Tim Flanigan, previously international counsel at Tyco and former White House counsel, says: “Those two counsel in the picture think they’ve almost reached the top of the compliance mountain. They’re not aware that a blinding blizzard is imminent. Behind what they think is the summit are two higher peaks. Later they’ll discover that their re-enforcement supplies have been diverted to another emergency.”

The analogy is apt: there’s always a new problem when trying to drive compliance across far-flung jurisdictions. Ask your average Global 500 corporate counsel if they can identify the nature and whereabouts of the company’s many disputes and they’ll likely shrug their shoulders. It’s exceedingly hard to keep abreast of this information. And yet, in a crisis, this information is often a lifeline.

To address this compliance programmes must be well structured and incorporate a range of solutions. Speaking in New York, Scott Gilbert, senior vice-president and chief compliance officer of insurance brokerage firm Marsh & McLennan, talked about establishing compliance review boards to conduct transaction sampling, audits and meta-audits.

Effective use of risk assessments was also a feature of discussion at both seminars, as was strategies to reduce risk with third parties and the importance of training and reinforcement of core messages.

In New York 27 per cent of delegates gave law firms low ratings on compliance help, believing outside counsel don’t understand their business’s global compliance issues.

Firms can do much to address this concern. Legal advisers must be alert to compliance breaches and know how to report this to clients. Delivering well-designed training for clients, and incorporating compliance best practice initiatives when asked to advise on policy, are also key.

The effectiveness of compliance programmes rests on the extent to which they become embedded in the culture of the business units. Law firms can also be an effective partner in conveying core compliance messages while considering local cultural distinctions.

Using tools such as project management and technology, including e-billing and matter control systems, law firms can provide effective support for clients. They enable clients to manage their global activities, document services rendered and their related costs.

In the US in October we were reminded that the stakes are very high. Law firms need to be climbing the global compliance path alongside their clients, helping to scale an ever-shifting slope.

Paul Smith, partner, Eversheds