A blog article originally published by the Legal Compliance Association in March 2017
You may remember that I concluded last month’s column by paraphrasing John Donne’s “no man is an island” by saying “No compliance officer is an island”. My apologies to John Donne, but his belief that human beings do not thrive when isolated from others is, I believe, an idea which has resonance in our context and can be applied to the role of the compliance officers in law firms in the twenty-first century. In other words, the success of the compliance function in law firms lies in ensuring that colleagues invest in the culture which is being created. Regardless of the skills of the compliance professionals, the quality of the systems and controls, or the accuracy of risk assessments, there must be confidence that these will be used by colleagues who are minded to be compliant, Without the commitment of others, all may be in vain. Compliance is a team effort.
How is this achieved? I would suggest that it is through successful communication of the firm’s non-negotiable expectations of colleagues, the use of influencing skills, and effective monitoring to ensure that everyone is demonstrating a willingness to comply. Compliance is superficial without people committing to it.
Of course, all compliance officers and professionals will have identified the dis-believers in their midst. These are the mavericks which pop up in most law firms. For a whole variety of reasons, they choose not to conform with the internal mechanisms which are designed, let’s face it, to keep the firm safe from regulatory scrutiny and to keep the business authorised and able to provide legal services. Ignore this type of colleague at your peril. They may prove to be the firm’s weakest link, doing damage not only to their own reputation, but that of the partners and compliance personnel, and ultimately the good name of the firm itself.
Whilst mavericks have been inherited and therefore are a presence (and a risk) that must be handled, the compliance professional can influence the future composition of the firm by having a role and influence over new appointments. Too often, I ask compliance professionals within law firms what role they have in recruitment and induction, and what discussions of a compliance nature take place at these times, to hear the answer that the compliance function does not become visible until much later in an employee’s relationship with the firm.
I am not simply suggesting that we ask interviewees whether they will be compliant with our systems and controls. I’d be surprised if anyone said no. It is far more useful to gauge whether the interviewee has the right ethical behaviours to understand and comply with the compliance systems. This is because the right ethical response underpins all such systems.
Questions I would prepare for an interview would originate from the core values we are expected to display as solicitors, and now anyone else working within an authorised-SRA firm, and which are currently found in the SRA Principles. For example, what does the phrase “personal integrity” mean to the candidate? How would they react if their client was misleading the court? What would they do if they were asked to deliver services in an area of law of which they had little knowledge? I’d suggest that these are far more insightful lines of enquiry than asking the person what type of vegetable they identify with; a question which I understand is currently popular in some interview circles!
In terms of induction processes, of course the location of the kettle and character insights are useful but limited. I would suggest that the compliance messages must be relayed to the new employee as close to day one of their employment as possible. Without delivery of these messages, the employee is a high-risk unknown and may be able to argue that they did not realise that their behaviour was unacceptable.
Too often, I ask people in training sessions to tell me the identity of the firm’s COLP and what the term COFA stands for. I am still pleasantly surprised when I get a clear response to these questions. My view is that the SRA would not be too encouraged if they received a hesitant response to these questions. New members of the firm must understand the governance structure and key role-holders such as these. They must also understand the behaviours that will not be tolerated and why this is the case, so that, for example, they have an ethical duty to deal with a client who is misleading the court rather than turn a blind eye or consider that this is not a problem for them individually or for the firm.
In my view the dangers of working with people who are untried and untested are manifold yet so often we simply don’t know that this is the case until too late. They are ambassadors for the firm and their lack of appropriate behaviour could have serious consequences. If the firm has invested time and resources in developing compliance answers, surely it makes sense to test and assess the people who you will be relying on to use your solutions. The compliance officer is not an island and must have confidence that you are working with like-minded colleagues.