English Grammar and Usage, In-House Counsel

Why Are The Lawyers Pestering Us? Communicating About Law And Compliance

At a law firm, law matters. Law is the center of the institution’s universe, and it’s all everyone is thinking about.

It’s the other functions that don’t matter: “Another email from IT? Telling me about interfaces and gigabytes? Why don’t those clowns leave me alone?”

“Another email from finance hectoring me about time sheets? Don’t those morons know I’m busy?”

At corporations, law (and compliance) is an “other function.” The businesses are concentrating on their businesses, and law and compliance — along with human resources, information technology, and finance — are, at best, a means to an end. If you mirror the other “shared services” and send incomprehensible communications to the businesses, the businesses will soon realize that you’re just one of the pests, meant to be ignored.

Inevitably, if a business person accidentally steps over some legal line, you’ll hear that the business guy had no clue that the line existed: “Yeah, yeah. Now that you’re telling me about it, I understand that we have that rule. But how was I to know? The rule is buried on the fourth page of some impenetrable policy hidden somewhere in our computer system. I spend my time selling; I can’t waste time trying to make sense of your legalese.”

If you don’t sympathize with that guy, then you’ve been a lawyer for too long. His criticism is not just an excuse for having violated the rules; his criticism may well be the truth. How can you change that reality?

First, write and speak comprehensibly.

Comprehensibly to a non-lawyer who doesn’t have much time and doesn’t really care about the subject that you’ve raised. That’s very different from communicating with fellow lawyers at your firm who understand your legalese and are intensely curious about factual nuances that any normal human being would deem irrelevant.

Second, if you need someone to remember a message, repeat your simplified message several times. Put your message in the executive summary of the formal policy that you first distribute and later entomb in your corporate intranet. That way, folks who read only the executive summary and not the entire policy will nonetheless have heard the message.

In fact, do better than that: Put your message (in short, simple words) in the cover email that transmits the policy. That way, when the recipient doesn’t bother to pop open the attachment to read even the executive summary, it doesn’t matter: She’s already read what counts.

Third, follow up. For rules that really matter, most corporations impose mandatory training on their employees. The employees often must certify that they’ve read documents or take a test to prove that they’ve been trained about certain subjects. (I understand the many shortcomings of those courses and tests. But they’re part of an effective compliance program, and they at least draw some attention to critical rules.) Many companies require annual training and certification on key topics, so that employees are exposed to materials repeatedly.

Finally, we’re now experimenting at my company with what we call “compliance stories”: We send monthly emails telling short, plain-English stories about issues that our employees might face. With just a little luck, a few people actually read the emails and think about them for a second or, at a minimum, are reminded that the rules exist.

Here’s an example of the type of story I have in mind:

Why does Compliance make such a fuss about sending gifts to government officials or taking government officials to dinner or other events? Because it’s a crime under the U.S. Foreign Corrupt Practices Act (and the laws of other countries) to offer “things of value” to a government official in exchange for business, and we’re trying to avoid any accusations of impropriety. That’s worth making a fuss about.

So what do we hear from our colleagues who accidentally step over the line?

“I know that I can’t give gifts to government officials. That comes through loud and clear. But how was I to know that my contact at Cook County Hospital was a government employee?”

At least that’s what it sounds like in Illinois. In California, it sounds like this:

“How was I to know that my contact at the University of California was a government employee?”

Outside the United States, it sounds like this:

“How was I to know that people who work for Emirates Airline were government employees?”

Or the Royal Bank of Scotland, or Bentley, or GDF Suez, or CITGO?

Please be careful. If there’s any chance that your client might have government ownership, be proactive and call Compliance. We can investigate for you, and we can help you (and the company) stay out of trouble. That’s why we’re here.

Yeah, yeah: It ain’t exactly Hamlet. On the other hand, if we’re trying not simply to speak, but also to be heard, it’s worth a shot, isn’t it?

(Our stories are of course fictionalized, to avoid any concerns about the attorney-client privilege. And we intentionally use ambiguous phrases such as “stepping over the line” when we talk about possible violations. For example, “stepping over the line” in the story I just shared could mean failing to ask permission in advance before sending a small bouquet to a hospitalized government official recovering from surgery. “Stepping over the line” could thus be evidence that you’re a decent human being; it doesn’t necessarily imply that you’ve committed an indictable offense.)

What do you think of our little experiment? Let me know in the comments.

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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