Campbell on Compliance

May 20th, 2015 / By

Compliance is one of the “hot” alternative jobs that law schools are promoting for their graduates. Much of this discussion, unfortunately, pays little heed to the nature of compliance jobs and whether legal education really prepares students to do this work well. The two seem to fit. After all, compliance is all about obeying the law, and JDs know a lot of law. The equation, though, isn’t that simple.

Law and Compliance

Ray Worthy Campbell explores these issues as one part of a rewarding new paper, The End of Law Schools. Although the title is provocative, and Campbell warns law schools of continued upheaval in the profession, the paper’s thesis is forward looking and upbeat. Campbell urges law schools to reinvent themselves as “schools of the legal professions.”

As part of that analysis, Campbell offers the best discussion I’ve seen of the difference between compliance and traditional law practice. His insights parallel those I’ve heard from contemporary general counsels, which is not surprising since Campbell has extensive practice experience. Educators who are contemplating the addition of compliance courses to the law school curriculum, or who just want to understand this area, should read Campbell’s exposition carefully.

Lawyers, as Campbell explains, tend to assume that compliance requires simply “explaining what the law require[s], and leaving it up the client to hew to the law.” P. 48. But today’s compliance officers are more about the “hewing” than the “explaining.” Naturally, a compliance officer has to understand the legal requirements affecting a company. Legal education can help with that foundation although, as Campbell points out, law schools pay more attention to broad legal principles than to “chapter and verse” of tedious regulations.

More important, understanding the law is just the starting point for an effective compliance officer. Big corporate scandals don’t arise from misreading the law; they often stem from behavior that all participants know full well is illegal. Did Walmart executives mistakenly think it was legal to bribe foreign government officials–or to cover up the evidence of those acts? See p. 49. No one needed a law degree to figure that one out.

Compliance Essentials

Instead, effective compliance officers need a host of knowledge and skills that law schools don’t touch. Necessary background includes “an understanding of how individuals work within a corporate culture, how leaders in an organization can inspire compliance, and [how to] identify[] those points in a business process most likely to lead to risks.” P. 49. “[T]racking, documenting and motivating employee behavior” are also essential. Id.

In addition to these basics, which infuse all compliance work, a compliance officer needs to understand her company’s business. It’s hard to achieve environmental compliance if your last science class was in high school. Ditto for privacy without some knowledge of computer programming. Almost all of the compliance fields require good accounting and math skills. Law students with STEM-phobia are not good candidates for most compliance positions.

Thinking Like a Compliance Officer

Compliance officers thus need education in fields outside the legal mainstream. Too many traditional law classes, meanwhile, may create the wrong mindset for compliance. Law schools hubristically assume that “thinking like a lawyer” is the best mental tool for any task. Traditionally educated lawyers, however, take a surprisingly narrow approach to problems.

Faced with a regulation, a lawyer’s first instinct is to find loopholes–ways for the client to avoid any unnecessary burdens. If there are no loopholes, then the lawyer will consider challenging the regulation in court. Did the agency follow proper procedures when adopting the rule? Did Congress give the agency sufficient authority in this area? Does the regulation raise constitutional issues under the nondelegation doctrine?

These lawyerly questions are appropriate under some circumstances. Indeed, any company faced with a burdensome regulation might ask its lawyers to explore these possibilities. But that’s lawyer work, not compliance.

Compliance requires a very different mindset: Now that we’ve established the validity and scope of these regulations, how do we go about obeying them? A lay person would be surprised to learn that we rarely view the law from that perspective in law school. Yet, as Campbell’s discussion reveals, this is not surprising at all. Effective compliance requires close reading of regulations and (sometimes) cases, but many college graduates can accomplish that task. Once one knows what the law requires, compliance requires very little manipulation of legal principles.

Educating Compliance Officers

Given the differences between law and compliance, Campbell predicts that law schools will not dominate compliance work simply by graduating traditional JDs. Some JDs will find work (and satisfaction) in that field, but the conventional path is both expensive and unsuited for compliance work. Instead, other programs are emerging that focus specifically on compliance careers.

Some of these programs are in law schools, some are in other departments. Some offer degrees, others provide certificates. Some encompass a year or more of work, others span only a few days. Some are online, others are face-to-face. As compliance continues to spawn job opportunities, preparatory programs will blossom. To what extent should law schools participate in that growth?

Campbell notes that law schools cannot educate effective compliance officers by simply packaging part of the current curriculum. Creating meaningful compliance education will require schools to add new fields of study while reshaping conventional ones. That process, Campbell suggests, could form part of the rebirth and expansion of law schools into “schools of the legal professions.” He urges schools to follow that path.

I wholeheartedly agree with Campbell that law schools need new faculty, fields of study, and pedagogic approaches to teach compliance effectively. Excellent education in that field will not be cheap. It will also stray from the single-minded focus that law schools have maintained for generations: the study of appellate opinions as a way of preparing graduates to handle legal disputes.

Broadening the focus of law school would be healthy for many reasons. In addition to allowing schools to enter the compliance field, it would expand our notion of lawyering to encompass the many types of work our graduates already do. Campbell’s vision of a school of the legal professions is very appealing.

Independence or Collaboration?

On the other hand, refashioning law schools as Campbell suggests will be a daunting task. Rather than attempt to create these programs within existing colleges of law, perhaps we should forge truly collaborative degrees with other units on campus.

Academia has long depended upon silos. Degrees belong to particular units, who jealously guard both the stature and revenue generated by those degrees. Interdisciplinary work is painful, as deans are reluctant to share their faculty’s teaching and scholarly capital with others. Despite their rhetoric, provosts and presidents often structure the university’s budget to reward just this type of turf protection.

Recently, however, I’ve seen signs that the old ways may be relaxing. In areas like environmental protection, neuroscience, and data analytics, universities seem to be willing to create truly cross-college programs. Committees of faculty drawn from all participating units govern these programs, which seem more genuinely devoted to meeting student needs than engaging in the horse trades that marked earlier interdisciplinary efforts.

I haven’t participated personally in any of these ventures, so I don’t know how optimistic to be. Despite my recent pessimism about aspects of legal education and the profession, I have an innate tendency toward optimism. (Really. My son calls me Miss Enthusiasm.) Perhaps this type of academic collaboration is illusory. But the stories I’ve heard suggest that there may be a new attitude emerging on campuses.

If so, then a cross-campus collaboration could be the perfect way to create a highly regarded program in compliance. With participation by law, business, organizational psychology, medicine, sciences, and other units, universities might already have the capacity to create stellar programs in this area. No unit would reap as much revenue as it might from an in-house program, but no unit would bear all the costs of building and maintaining such a program.

Maybe it’s time for creative destruction, not just in legal education, but in university structure.

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  • Christopher Zorn

    You make some excellent points, and I also try to be an optimist with respect to intra-institutional collaborative efforts. But it’s especially difficult to be so when law schools are involved. Part of this is due to the usual roadblocks to interdisciplinary collaboration (different vocabularies, different models for mentoring, etc.). Those issues are often exacerbated when law schools are involved, since a number of norms and practices common to literally every other academic endeavor (peer review, departmental specialization, doctoral theses, etc.) are absent from them.

    But the most frustrating impediments are the ABA accreditation rules, which seem custom-designed to prevent law schools from engaging in interdisciplinary education programs. Those rules limit (inter alia) law schools’ ability to joint-appoint faculty, share space and facilities, and cross-list courses. They also prevent full integration of library and information technology services. Moreover, because the ABA is a monopolist where accreditation is concerned, school administrators seeking to avoid endangering their accreditation are overly cautious and conservative in their efforts to ensure compliance with the rules. (How’s that for some irony?)

    The issue is effectively summarized in ABA Standard 301(a):

    “A law school shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.”

    Until the ABA acknowledges that “admission to the bar” isn’t the only viable motivation for seeking a law degree, it (and its standards) will likely continue to stand in the way of effective collaboration along the lines you describe.

    • DeborahMerritt

      These are very interesting points–I hope to look more closely at the ABA rules you mention. One of the most troubling, I think, is the rule prohibiting law schools from awarding credit toward the JD for work completed before matriculating in that program. 311(e). That’s a real impediment toward developing innovative programs. If a law school collaborated with other campus units to create a compliance masters, and a student took law school courses as part of that program, why shouldn’t those courses count towards the JD? Grading issues could be ironed out: e.g., apply the credits toward the JD on a pass/fail basis.

      If we want to develop programs that will educate students for a variety of law-related careers, while also attracting students to the JD as a capstone of that work, we need to work on this problem.

  • Unemployed_Northeastern

    Let me play Devil’s Advocate and ask a few hypothetical questions. Seeing as one of the rationales in the development of compliance departments at least appears to be circumventing more-expensive lawyers for less-expensive non-lawyers for legal guidance, what exactly is the motivation for compliance departments for hiring attorneys? I have not seen widespread complaints that existing compliance personnel are of poor quality; why fix a wheel that isn’t broken? At the very least, why pay a labor premium for attorneys-cum-compliance workers if BA/BS holders are perfectly adequate? And if there is no wage premium for the JD-compliance officer or MLS-compliance officer or LLM-compliance officer, what is the worth of those programs beyond keeping law schools solvent?

    To wit, I have seen, time and time again, compliance postings giving the old “No JDs need apply,” much like a plurality of modern paralegal and legal assistant job postings. It’s lots of fun to be a lawyer in the job market.

    “Law students with STEM-phobia are not good candidates for most compliance positions.”

    One is reminded of a certain junior professor who likes to claim that prospective 0L’s basically have no other options, hence rendering JD-MBA or JD-MD comparisons moot and JD-BA the only appropriate metric.

    • DeborahMerritt

      Unemployed_Northeastern, All good points–thanks for sharing them. I don’t think compliance programs have to be at the graduate level. I’m a long-time advocate of moving the first-year of law school to the undergrad curriculum. This would create more options (both for learning and career planning) while reducing the cost of becoming a JD.

      Similarly, I think there are many options for compliance education. An undergrad partnership between law and business might create an excellent program that would work for financial/business compliance as well as for other jobs in business and an entree to law school if the graduate desired. On the pure education side, plenty of critical thinking in finance and law classes.

      A similar undergrad partnership between law and public health would be similarly advantageous for the wide range of health compliance positions. Again, these classes would be valuable from an undergrad educational perspective and could lead to numerous careers including compliance.

      In terms of demand, the compliance field is one that is genuinely growing. It is also becoming more complex and developing internal hierarchies. Employers, I think, are looking for new hires who have a better tailored educational background. Some of those employees will have just BAs; others will have graduate degrees of different types.

      The big danger, I think, is that law schools will make minor changes in the existing JD curriculum, so that they can continue as much as possible doing what they’ve always done. Instead, this field requires creative new programs–both to confer genuine benefit and to sustain the school offering those programs.

      Thanks for raising these issues. I didn’t focus my original post on the possibility of BA programs, but I think they are an important part of compliance education.

    • MacK

      UNE:

      I’d suggest that one reason that lawyers are favoured for compliance roles is privilege – though – the idea that privilege applies to in-house counsel is less clear, while the likelihood that the compliance program would be cited as a defence might also lead to a waiver of privilege. The other reason is that lawyers are bound by attorney client confidentiality.

      I’d add that in say antitrust/competition the EU Commission’s competition directorate has taken the view that it will not recognise “legal professional privilege” in many instances. Another issue (and I was a GC) is that a lot of senior executives (and a few GCs) are confused as to who they work for – you work for the corporation and its shareholders, not the CEO (who can of course fire you.)

      In short there are reasons why lawyers may be favoured, but they are often mistaken reasons.

      • Unemployed_Northeastern

        Thanks for the info; that’s quite informative.

        P.S. I’ve picked up a doppleganger over on Wikipedia; there’s an “Unemployed Northeastern” over there who has been rewriting various pages over there, including Law School Transparency, to promote the cult of S&M and Leiter. You can see the dozens, perhaps >100 edits here: https://en.wikipedia.org/w/index.php?title=Special:Contributions/Unemployed_Northeastern&offset=&limit=500&target=Unemployed+Northeastern

        S/he elected to do this pretty consistently over Memorial Day Weekend instead of spending time with family and friends. I thought you’d like to know because the prose/rhetoric/BL genuflection/S&M overreliance/conspiracy theorizing/etc resemble a certain professor who is one of your most favorite favorites…

        • MacK

          Contact Wikipedia abuse. I raised with them this activity in the past.

          Leiter is consistently juvenile – the other person behind it see,s by IP addresses to be Simkovic which is just ludicrous

        • MacK

          You know, I really wonder if Leiter, Diamond and Simkovic are entirely sane. This Wikipedia stuff – at least some for he other editing had the same IP addresses as Simkovic’s location, law school by visiting law school. I also find troubling the tendency to engage in bad behaviour and then try to make it look as if SODDI. This is not the only serious situation where hints like that have been flung around by the way.

          • Unemployed_Northeastern

            Wait, how do you find out a Wiki contributor/editor/whatever’s IP address? I am not schooled enough in Wikipedia to know these things, but I suspect my doppleganger has a California IP, if you follow me. There is also a fake Steven Harper, S.J.HarperBelly or something like that, who has penned a few decidedly anti-Steve Harper perspectives on law schools.

            P.S. Here are some long arguments *I* had with multiple Wiki editors who thoroughly kicked *my* teeth in: https://en.wikipedia.org/wiki/Wikipedia:Reliable_sources/Noticeboard (two different sections at that link, no less!) and https://en.wikipedia.org/wiki/User_talk:Epeefleche#Disclosure_of_possible_off_Wiki_coordination_and_possible_receipt_of_improper_payments.3D, among other random internal policy sections of Wiki.

          • MacK

            Their IP address is visible if they don’t register and get a handle. After gay I think only Wikipedia sysops have access.

          • Unemployed_Northeastern

            I don’t think the fake me registered, but I can’t find any evidence of an IP address.

            sysops?

          • http://www.lawschooltransparency.com/ Kyle McEntee

            Fake You did register. No IP is available without a Wiki Checkuser. Fake You has largely stopped — and picked up using other accounts it seems — so as, again it seems, to avoid being subject to a Checkuser. But as far as I can tell, even if Fake You gets a Checkuser, the IP won’t be made available.

          • Unemployed_Northeastern

            Eh, too bad. I think one of the Wiki editors was pondering a Checkuser. That being said, Fake Me did not alter his writing style very well at all, nor his reaction to third-party criticism, so it’s pretty obvious who it is.

            Personally, I find it quite amusing that one of LST’s detractors has nothing better to do over Memorial Day weekend than in adequately to try to fit in my pseudonym. Evidently doesn’t have much in the way of friends or family.

          • MacK

            Sysadmins – members of the Wikipedia project with administrator privileges.

            To have a user name on Wikipedia you have to register – if you don’t every edit shows the IP address of the editor. It seem that the guffaws that followed certain IP addresses editing certain entries, i.e., Fordham on legal employment and UT and Chicago references to L, led various people to return to a tactic they are familiar with, the sock-puppet, but with a twist of using the handles of those that torment them and gut their arguments most effectively.

            As I said, their institution’s reputation is being damaged.

          • Unemployed_Northeastern

            For 2 out of 3 omnipresent defenders, their ABA job outcomes damage their schools quite enough without their involvement…

          • MacK

            I’m not sure what I should be reading, though Galway GAA has an amazing amount of skulduggery – and the football has always been worse than the hurling, and as for camogie those cailín are just vicious, on or off the field.

            The important point to make is that there is a debate with strongly held POVs and certain players in that debate are corrupting Wikipedia to make their point, or in the case of L make him seem like a great thinker and mensch. S is a very minor person trying to pump himself up by (a) making sure every reference to him is laudatory, (b) every critic denigrated, and (c) his work is cited all over Wikipedia – the latter in hopes of getting serious scholars to cite him and raise his Gini. D is – well a marginal, vicious nutcase.

          • Unemployed_Northeastern

            *I* wrote very lengthy nonsense about LST being an unreliable source in sections 4 and 8 of the first link; one editor notes that *I* spent in excess of 12,500 words and another editor calls it “the worse case of TL;DR I’ve even seen.”

            *I* wrote a very D-ish conspiracy theory near the bottom of the second link, involving massive LST-sponsored editing of law school webpages and replete with kickbacks and accusations that LST editors are on the dole.

  • E H

    No, Ms. Merritt, there are programs that take this into account, to some degree. They are typically the “3+3” programs that allow an affiliated institution to partner with a law school, reducing the amount of time and money required to attend.

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