Several new, highly publicized fraud enforcement initiatives of the U.S. Department of Justice are likely to impact the roles of the general counsel and chief compliance officer. In most organizations, there are elements of overlap in how these officers relate to the compliance program structure and the conduct of internal investigations. In the context of these new initiatives, however, absolute clarity on executive-level leadership is necessary in order to ensure an effective and coordinated organizational response. The governing board, with its obligations for legal compliance oversight, will in most instances conclude that the general counsel is best qualified to lead that response.
Two particular policy initiatives are at issue. First is the “Yates Memorandum” setting forth specific guidelines on corporate conduct. These guidelines incorporate a substantially increased government focus on individual accountability for corporate wrongdoing, and—of particular relevance—on corporate eligibility for “cooperation credit” in the context of government investigations. In so doing, the Yates Memorandum establishes a direct linkage between a corporation’s ability to receive cooperation credit–certainly a desired fiduciary goal–and the extent of the corporation’s efforts to provide the government with information on individuals responsible for the corporate wrongdoing.
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