For more than three years, Audrey Harris was on the inside at BHP in Australia as chief compliance officer (CCO).

Now she is on the outside as a partner at Mayer Brown in Washington, D.C. with an international practice focusing on the Foreign Corrupt Practices Act (FCPA).

You were a CCO for BHP for three plus years. How is that job different from the job you have now?

“When you are in-house, you are focusing on one client every single day,” Harris told Corporate Crime Reporter in an interview last week. “One of the things I loved about being in-house was you had an incredible window into the company. You have so much opportunity to impact and execute. On the external side, you of course partner with the client to achieve the outcomes and execute together. But being in-house, you have the ability to execute and impact in a way that is a bit different from external.” 

“If you are internal, you are working with all different kinds of folks, from business to accounting to IT. In external firms you are spending quite a bit of time with other lawyers. One of the great things about being in-house is that you can think about things from a practical perspective rather than writing legal memos that only a lawyer could love. You think about how you can take that legal advice and implement it in a business operation. That’s a different part of your daily routine when it comes to being in-house versus being external counsel.”

“But many of the same concepts and principles apply. It’s just how you work and who you work with that changes quite a bit.”

Does being a former CCO make it easier to deal with compliance officers at your current corporate clients?

“I certainly hope so. It is just human nature when you can say to someone – I have been in your shoes, I do understand what you are going through and what you are experiencing.”

“Here are some things that I have thought about. Talking less like a lawyer and more on the operational side on how to get things done. Advice you can read off of your iPhone. Bullet points instead of legal memos. Those become critical when you are in-house. When you are an external and you can deliver that to your client, I like to think there is a benefit.”

Is there any indication that compliance officers have turned on their corporations and become FCPA whistleblowers?

“I can’t give you an example in that circumstance. I believe there are about four awards out of the SEC that indicate that it was someone from a gatekeeper or compliance background who were whistleblowers. It seems to be rare, at least from what we can see.” 

“But hopefully if the team is at the table early enough, they can guide the business through these issues in a responsible and legal way. They can problem solve when issues come up. And then that leads to being strong gatekeepers and having the credibility to being strong gatekeepers when they need to be. They can be all three of those things.

“Spending time guiding and problem solving gives them the credibility and the ability to be a gatekeeper when they need to be.”

Does this send shivers down the spines of corporations – gatekeepers turning on the company?

“When Dodd-Frank was first proposed, I wrote an article on it – At the Whistle and They’re Off.”

“Most CCOs would assume transparency. All that does is incentivize that you are dealing with reporters – people who report issues – in a timely manner. You are taking effective remediation. Regardless of how it becomes transparent – whether from a reporter or otherwise – you would be very comfortable defending and explaining your risk based decision and how you responded to particular issues.” 

“And that is key in the updated guidance. They talk about documenting your risk based decisions, the whys of their programs. Why did they engage with third parties? Why did they feel comfortable going forward with the transaction? The government is saying – we understand you are going to make risk based decisions, but be able to document why you did that.”

In August, the Justice Department issued a Foreign Corrupt Practices Act opinion letter. It was the first FCPA opinion letter since 2014. 

The Department said it would not pursue an enforcement action against a US-based investment adviser for a payment to a foreign state-owned bank. 

Harris said that FCPA opinion release letters are rare for a reason.

“There are more sources of guidance, including the FCPA Handbook from 2012, the second edition which just came out in July, multiple Department of Justice guidance memos, including the voluntary disclosure program, the use of monitors, effective compliance programs,” Harris said. “There have been quite a few over the last two years in particular. And there have been more enforcement actions and resolutions that give guidance. And there has been a little bit more case law.” 

“This has resulted in more sophisticated internal compliance personnel as well as external counsel. As a result, the opinion release procedure has become less and less necessary as a source of guidance.”

“When I first started practicing, this wasn’t the case. We didn’t have the various public databases of FCPA cases. I had to do that for myself. I remember a binder of releases on my bookshelf. I was a young associate. I could recall the numbers on the opinion releases, because we were using them for guidance. Of course, now we have other sources. That sophistication of internal compliance personnel, that sophistication of external counsel and that increased amount of guidance has perhaps made the opinion release procedure less attractive and less necessary for corporations at this point in time.”

[For the complete q/a format Interview with Audrey Harris, see 34 Corporate Crime Reporter 35(12), September 14, 2020, print edition only.]