Fast forward a year…
As you open the double doors of the veneer storage unit you stare at the orderly spread of files in front of you; each immaculate folder proudly displaying the company logo holds evidence of your tireless labour over the last year to bring you to where you and your firm stand today. Each folder, a work of art weaving together the day to day comings and goings of the business, its clients and staff who serve them with the finance and administration necessary to survive in today’s tough climate. As you shift the folder marked ‘Outcome Focused Regulation’ a millimetre to the right and swipe a finger over the slight trail of inevitable paper dust a gentle chime sounding out from the still of your ordered surroundings calls your attention back to your desk. As you move into your seat a smile gently tugs at the corner of your mouth as you trail your fingers across your unmarked desk jotter centring the desk sign reading ‘Compliance Officer for Legal Practice’ as you simultaneously reach for the ergonomic mouse supplied following a firm wide risk assessment.
A second chime and a flash of a reminder appear on your desktop; a partner from the firm is shortly due to give evidence before the Select Committee. You idly click on the link to activate the live feed as you settle back to watch the Partner safe in the knowledge that he not only knows his stuff legally but is totally on the ball on matters of ethics and his professional regulation.
Some minutes into the evidence you hear the Partner concede that he knew that his client had mislead the Select Committee but had felt that there was nothing to be done due to the obligations the firm owed to the client…..suddenly the enormity of the role of Compliance Officer comes crashing into your reality.
@Richard Moorhead recently wrote a blog ‘Hackgate 4’ walking through the relevant Principles and Outcomes found within the SRA Code of Conduct 2011. Richard references his ‘academic’ approach to the situation but I think its by far the best approach to the circumstances particularly in the early days of new rules. The circumstances that sit behind the ‘Hackgate’ events are unusual and I find in unusual circumstances it’s always best to return to the rule as a starting point. Richard’s blog also got me thinking about how to stress test new procedures formed around outcome focused regulation.
So, back to our real life scenario: what are you doing? Throwing the desk sign towards the bin and clicking on to lastminute.com to book that urgent ‘me’ time and scarper? Hopefully not!
If it were me I would probably swear. No actually I would definitely swear and probably quite a bit but after a little tirade I would get up, make a cup of tea (sugar it for the shock) and reach for the well thumbed and heavily highlighted copy of the Code of Conduct that has been my new best friend since well, a while. I might be heard repeating “its outcome focused, its outcome focused” but would probably avoid clicking my heels together at the same time just in case somebody was watching – the role of COLP should surely require swan-like attributes.
In our real-life situation the deed has already been done and the admission made that the retainer continued so I would be examining my responsibilities as COLP to consider whether I am under an obligation to report. I would be walking through the Principles and Outcomes step by step and talking to those involved about the history of the client and the circumstances of the retainer involving a sophisticated user of legal services. I would also be considering what lessons could be learnt for the future. I would probably be thinking about how to deal with future significant events and how I could use my monthly risk analysis meetings to better effect. What do I need to do to draw information out from the many fee earners and partners at the firm and encourage them to bring situations to my door? Is the training I have already started fit for purpose? Do all the staff understand what is required of them and how deeply would I have to be involved in the day to day client issues to take a proactive lead in compliance? After all, I recognise that the concept of one person having overall responsibility for compliance is a new one for all of us.
Over the last few months I have tweeted from time to time (ok, quite a lot) about the role of compliance under the new OFR and the challenges that it will bring for the COLP – if the situation demands your obligation is to report – as a proactive step in anticipation of a risk or reactively when the risk has manifested itself. The Rules are with us now but the nomination of the COLP isn’t required until March 2012 to become effective some 6 months later. It is by considering real life events in the coming months that I believe firms and their prospective COLP’s can get the best idea of what exactly it is all going to mean for all of them. I wouldn’t be confining myself to the events created within my own firm; I’d be using the experiences of others, good and bad, as a way of challenging myself; stepping back and stress testing the procedures and assessments that are in place.
But for me, as with my fast forward scenario, it’s all in my imagination.*
*Except the bit about the desk. Oh, and the folders. Definitely the folders.