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By Liz Crampton
The Justice Department’s fraud section is looking for a replacement compliance counsel as the current employee’s contract is set to expire later this year. Hui Chen, the current compliance counsel, was the first person to assume the position when she was hired two years ago to bring a private sector perspective into the Justice Department.
Practitioners told Bloomberg BNA they see the opening as an opportunity to expand on the parts of the program that have been successful, such as strengthened communication between the business community and government.
The position is intended to help the fraud section’s evaluation of company compliance and remediation efforts when companies are under investigation for violating international bribery laws. The compliance counsel also works to train DOJ attorneys and oversee outside corporate monitors.
“The compliance counsel serves almost as a translator — or compliance whisperer — between the private sector and DOJ,” Alexandra Wrage, president of TRACE, an organization that consults with companies on anti-bribery compliance, told Bloomberg BNA.
“The compliance counsel, if she has a great deal of private sector experience, as Hui Chen does, can assess whether the program really is addressing the risks the company faces,” she said. “Lawyers who have worked in senior compliance positions at companies become skilled at asking the right questions and spotting systemic weaknesses in compliance programs.”
Chen’s contract will expire in September. “The current postings for a compliance expert seek a successor to continue the existing compliance consultant’s excellent work in strengthening the section’s compliance program,” Justice Department spokesman Wyn Hornbuckle told Bloomberg BNA.
The new compliance counsel will be hired for a two-year term, and the contract may be extended. Federal agencies use such contracts for hires that they need immediately or temporarily, bypassing lengthy federal hiring requirements.
The compliance counsel position requires at least four years of legal experience, with at least one year of “specialized” experience, such as “a senior compliance position within a multinational company.”
The underlying idea behind a compliance attorney is to bring someone into the agency who has real-world experience and can help advise DOJ on the measures a company has taken in an investigation, Olivia Radin, a white collar crime partner at Freshfields Bruckhaus Deringer, told Bloomberg BNA.
Radin said she’d like to see Chen’s replacement bring in-depth knowledge of how companies adopt a risk-based approach to addressing potential outcomes of international interactions. They use such risk analysis to keep compliant with the Foreign Corrupt Practices Act.
“It’s important for DOJ to be transparent about the standards it expects to see and how it will evaluate compliance efforts,” she said.
“For international companies, it’s especially important for the compliance attorney to take into account that the company is managing its program against different cultural and legal frameworks,” Radin said.
A “key quality” of a compliance attorney is “practicality,” Wrage agreed.
“We already have a lot of documents describing the need for ‘reasonable,’ ‘proportionate,’ or ‘appropriate’ compliance measures. But what does that actually look like?” Wrage added.
For businesses hoping to stay in good stead with the law, the more detailed guidance they can get from the DOJ, the better. “Is the answer different for a vast multinational with lawyers on the ground in every country and a small company operating in just a handful of the world’s most challenging markets? We’ve heard the DOJ say it is, but not how the programs might reasonably differ,” Wrage.
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