One of my favorite weekly reads is the Texas Lawyer Candid Mentor column by Michael P. Maslanka. He recently did an article, entitled “Applying Ancient Wisdom to Modern Problems”, where he channeled some very ancient wisdom for lawyers. I thought it provided some excellent guidance for any Chief philosopher (and adapted from Maslanka) to come up with an application of some ancient wisdom for the modern day Chief Compliance Officer (CCO), compliance practitioner and the greater compliance function.
Aristotle: Fake it until you make it
Many commentators exclaim compliance is too hard or they cannot understand the requirements of the Foreign Corrupt Practices Act (FCPA). While I believe it is quite easy to comply with the FCPA, i.e. you simply do not pay bribes; for those who think such a position is too hard, Aristotle has the answer for you when he said, “We are what we repeatedly do. Excellence, then, is not an act but a habit.” That bit of ancient wisdom translates into the modern day parlance that if you repeatedly do something, you can not only master it but it will become a habit. For athletes out there, or in my case former athletes, you need only consider why you practiced for so many long hours. It was not only to learn and then perfect your craft but it was also so that your actions would become habits and when the game was on the line, your habits would take over and you would not have to think to do the right thing.
For the compliance practitioner this means that if your company does business in compliance, while it may be different the first few times you go through a process, the more you do it, the more it becomes how you do business. It is through this doing of compliance that a company burns it into the very fabric of its organization. Put another way, if you do compliance every day in business, your company becomes an entity that does business in compliance. Finally, if any individual then goes outside the norm of doing business in compliance, it should be detected and prevented more quickly and efficiently.
Boethius: All fortune is good fortune
While in prison awaiting execution, Boethius has an imagined conversation that goes along the lines of the following, “All fortune is good fortune; for it either awards, disciplines, amends, punishes, and so is useful or just.” As Maslanka wrote, “In other words, for fortune’s purpose is either the reward of the good, or the correction or punishment of the bad.” News and information allows you to know where you stand and that helps you to know what you need to do.
In the FCPA world, what you do not know can hurt you as demonstrated by the criminal conviction of Frederic Bourke around the concept of conscious avoidance in not knowing that his business partners were bad actors and prone to engage in corruption, prior to the time they engaged in corruption. This means that putting your head in the sand is the worst thing you can do. All of the information inside your company is your data; there is no reason not to mine it to find out where you stand. If there is one thing I have learned in my own FCPA journey, it is that there will be violations of a company’s compliance program. This is largely because humans are involved, so you need to have a system in place that allows you to respond if something askance pops up. But you will not know about it if you bury your head in the sand.
Epictetus: It is not things which trouble us, but the judgments we bring to bear upon things
Here the message is “see reality in the moment, and not be held hostage to the done and gone past or evolving and ever shifting future.” The clear message is to see events for what they are; then take the lessons to be learned and move forward. You can whine and moan all you want about how unfair something may be but if you have to comply with it, you had better figure out a way to do so. For the CCO or compliance practitioner this reality is what drives the initial implementation of many corporate compliance programs. Yet as these compliance programs mature they become a part of how a company does business, largely through implementation of the internal controls requirements of the FCPA.
This step leads to a better-run company, which leads many organizations to be named by Ethisphere as a winner of the ‘World’s Most Ethical Company’ awards. As I have previously noted, companies that win this award tend to do better financially than the Standard & Poor’s average and the reason they tend to do so, is that they are better run through more robust internal controls. Yet it is through having robust internal controls which allows the prevention and detection of issues before they become full-blown FCPA violations or as Maslanka quoted the Buddha, “Pain is inevitable; suffering is optional” and that suffering is your company’s suffering for not doing anything around compliance.
Ecclesiastes: A living dog is better than a dead lion
Since Maslanka is writing a column for lawyers and not compliance practitioners he says that because lawyers are warriors and a warrior’s true purpose is “To serve something greater than themselves”. A CCO, compliance practitioner and compliance function is there to help make sure a company does the right thing. The recent Volkswagen (VW) emissions-testing scandal continues to resonate across the globe, the German national brand of quality and honesty continues to come under pressure. This is even true for some of VW’s competitors who have all faced scrutiny or criticism going forward.
Yet it is compliance that is the key for the German national brand going forward. Ulrich Grillo, president of the BDI (the German global industry association), who, quoted in the Financial Times (FT), insisted that the German national brand would not be damaged by “the unacceptable behavior of one company.” Further, Grillo recognized that compliance is the answer. He urged companies to check their “management processes, including compliance and control systems.” He suggested the question to ask should be, “Are we doing everything right?”
Maslanka ended his piece with a quote from Ryan Holiday’s book The Obstacle is the Way: The Timeless Art of Turning Trials into Triumphs, which read, “Philosophy…(is) a set of lessons from the battlefield of life…Not something you read once and put on your shelf…you are a philosopher and a person of action…And that is not a contradiction.” This would seem to be me to be a pretty good description of a compliance practitioner.
Compliance, like philosophy is designed to mined for the lessons you can use going forward.
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© Thomas R. Fox, 2015