CCOs: The Importance of Documenting a Compliance Program

by Michael Volkov
Contact

Tom Fox (here) frequently reminds every one of the importance of documentation to the integrity of a compliance program. A compliance program is only as good as the documents show. This principle is especially critical when a company has to respond to a regulatory inquiry or to an enforcement action.

As we anticipate the testimony of former FBI Director James Comey in our current national political drama, the importance of contemporaneous documentation of significant events is dramatically about to play out. When internal investigations are conducted, investigators often place significant weight on the value of contemporaneous documents that record facts at or close to the time of an event.

It is important, however, to remember that documenting a compliance program serves a number of positive purposes critical to a company’s compliance program. When a decision-maker has to document the reasons for a specific action, a documentation requirement promotes consistency and critical thinking and analysis. In some cases, it leads to better decision-making and more effective consideration of competing interests.

A rigorous documentation program also promotes protection against potential commercial and contract disputes with third parties and vendors/suppliers. The existence of a document can be critical to protecting a company from litigation or disputes over pricing, terms and other significant issues.

At the board level, members of a compliance program committee depend on documentation and accurate reporting of significant program developments. If a compliance program is built on robust documentation, then reporting metrics and accomplishments are more easily verified and accurately presented to the board committee. If inaccurate information is given to the board, the chief compliance officer, along with other senior executives can be held responsible for misleading the board and creating potential risks.

To the extent a company adheres to documentation requirements, the auditing function in the company can conduct audits in a more reliable and timely fashion. When a fact is disputed, documents often resolve such a dispute as a more reliable indicator of events and actions taken by specific individuals.

Just to take the contrary view on the importance of documentation, a company has to balance the downside from a resource allocation perspective of documenting everything. There are times when a CCO has to say enough is enough, and when the value of the documentation is outweighed by the cost of such a requirement.

There is such a thing as too much documentation. Some issues do not require documentation given the risk and the remote need to preserve proof. While such an approach may itself create some slippery slope problems, CCOs have to balance the documentation requirements to ensure that he/she does not overburden business, legal and compliance actors. It is a fine line between proper documentation and unjustified documentation, but it is an issue that needs to be considered.

Also, a CCO has to be careful of creating burdensome requirements on his/her own compliance staff. A compliance department cannot be overburdened with documentation requirements that bring little benefit to the company.

In the end, as always, a company has to find the proper balance between documentation requirements and risk. Where there are real risks, a company should adhere to proper documentation requirements so that a program can be protected, assessed and audited so that the program can be continuously improved as conditions change.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michael Volkov, The Volkov Law Group | Attorney Advertising

Written by:

Michael Volkov
Contact
more
less

The Volkov Law Group on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.