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CCCA_V4No4_Dept-Ethics-FIN.qxd:CCCA_V1No2_Dept-CourtLeg-V1.qxd 10/28/10 11:24 AM Page 13 Ethics proposed activity falls within the parameters of the law. In such cases, shouldn’t a compliance officer be free to act independently and suggest that the activity does not fall within the company’s stated ethics profile? Recently, Pfizer, the world's largest drug maker, in settling alle- gations of illegally marketed drugs for off-label use, announced that its general counsel would no longer oversee its ethics and compliance program. Under an agreement struck with the U.S. Department of Health, it was agreed that the chief compliance The appeals process demands detailed officer would report directly to the CEO. But the real question for companies is where on the continu- and discriminating analysis of the um of the ethics and compliance scale they want to be, not existing record. It rewards the insight whether they should separate the roles of legal and compliance. to identify and articulate a strategy In truth, if Pfizer had run-ins with the law, it’s because its upon which a case will turn. It favours compliance program was not effective and the company itself was unclear about where it was on that continuum.The issue it those with an intimate understanding of and other organizations with serious compliance breaches need the procedures and perspectives that to address is whether what they are saying about compliance define our appeal courts and Supreme and ethics matches their business practices, including on the Court. It is an unforgiving environment front lines of the business. Some companies are committed only to ensuring good corpo- for those who approach unprepared. rate governance. Others,perhaps the smarter ones, want to move beyond that and aspire to Global Corporate Citizenship, where- In the appeals process, by they strive to engage stakeholders and be engaged as stake- he who wins last, wins. holders willing to address key societal challenges on a global scale. Regardless of those choices, not only does giving legal advice Call us. and ensuring compliance call for similar skills,but they also aim for similar outcomes. For the sake of any company’s success,the chief legal adviser and the chief compliance officer should, in fact, see eye to eye on compliance with the law,reducing legal exposure for the company, and achieving the company’s business strategy. It’s also worth noting that the United States Sentencing Guidelines will soon be amended with a view to strengthening the compliance and ethics programs of organizations and empha- sizing the importance of a compliance officer.To be eligible for credit at sentencing where“high level personnel”has a role in the Toronto: 416 867 3076 offence, the corporation will have to demonstrate that the indi- Earl Cherniak, Q.C., Kirk Boggs, Mark Freiman, vidual with operational responsibility for the compliance program Kirk Stevens, Jasmine Akbarali, Brian Radnoff, reports directly to the corporation’s governing body. As Lanny Cynthia Kuehl Breuer, Assistant Attorney General of the Criminal Division at London: 519 672 4510 the U.S. Department of Justice, noted in a speech last May to Peter Kryworuk, Ian Leach, Andrew Murray, Compliance Week, this new provision is a reflection of the view Carolyn Brandow that compliance should be embedded at the very highest levels of an organization. Lerners LLP is 100-plus lawyers with a proud history Regulatory guidance concerning compliance programs from of 80 years of successful litigation. the OECD, the United States Federal Sentencing Commission and other regulators such as the Canadian Competition Bureau www.lerners.ca/appeals