Ryan McConnell
This is the debut installment of a new regular CorpCounsel.com column by Morgan Lewis partner and former assistant U.S. attorney Ryan McConnell, focusing on corporate risk and compliance.
Two storied college football programs met in Miami Monday night: the Notre Dame Fighting Irish and the Alabama Crimson Tide. Both coaches offered a pre-game speech—a message that they hoped would inspire their players to play like champions. But speeches did not get them to this key point in the season. Nick Saban, Alabama's head coach, knows that winning takes discipline and process, in addition to player performance. "Focus on the process of being successful," Saban often says.
For Saban, it's not the end result, but the process at hand—one play, one moment. Saban understands discipline, hard work, and messaging. He is driven to succeed. And he does—one play at a time. Compliance lawyers could take a lesson from Saban by understanding that leadership and discipline are key to an organization's compliance success.
Most compliance programs are organized around some basic building blocks or key elements that tie back into accepted compliance frameworks such as the federal sentencing guidelines, the 13 elements of the Organisation of Economic Cooperation and Development, U.K. Ministry of Justice Adequate Procedures Guidance, settlement agreements with the U.S. Department of Justice, and the U.S. Foreign Corrupt Practices Act Guidance.
In every accepted framework, leadership is a critical element. Without a culture of leadership in an organization, a corporate compliance program cannot succeed.
Within a company, leadership means the business takes ownership of the compliance program. Under Saban's approach, as with any sports program, the players are ultimately responsible for execution. He teaches young athletes to be leaders on the field and to focus on the process of execution—domination of your opposition when blocking, correct technique, and proper coordination with others on your team. In a September 2012 Fortune magazine interview, Saban noted, "First of all, you've got to have a vision of what kind of program do I want to have? Then you've got to have a plan to implement it. Then you've got to set the example you want, develop the principles and values that are important, and get people to buy into it."
It is the same with a compliance program. Ultimately it is the business that owns the compliance program. Compliance lawyers can supply a process and support operations in ensuring the process is successful—i.e., telling managers how to focus on the moment to guarantee ultimate success. That moment could be refusing to accept a gift that may appear inappropriate or asking follow-up questions when a transaction appears suspicious, but the manager or operations personnel has to execute the process.
Successful compliance lawyers follow a Saban-like process. He plans for everything and is focused on efficiency and execution. A good compliance program should be risk driven—allocating resources to the highest risk and having a mitigation plan in place to address the risk. This means understanding how your organization is successful in business and building compliance into this framework. And designing the compliance program around the risks faced by the business. Risk-driven compliance programs must be built into the organization, owned by the managers, and follow a process—just like the University of Alabama football program.
Ryan McConnell is a partner at Morgan Lewis in Houston and former assistant U.S. attorney. His practice focuses on white-collar investigations and corporate compliance. He is an avid LSU fan and may be heckled following any LSU loss at rmcconnell@morganlewis.com.
