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FCPA compliance staffing and the inside/outside counsel model

From guest blogger Jeff Kaplan at Kaplan Walker, an expert on compliance.

“The need for strong FCPA compliance measures is not likely to go away any time soon. The flow of FCPA investigations and prosecutions shows no sign of abating – if anything, the bounty provisions of the Dodd-Frank Act will add further fuel to the fire. And, with the new U.K. Bribery law and other initiatives outside the U.S., a more global (if not universal) era of anti-corruption enforcement could be at hand. As well, various government agencies have recently signaled degree to an unprecedented degree their expectations that companies have robust anti-corruption compliance programs, meaning, among other things, programs with sufficient resources and independence. However, for some companies meeting the challenges of these expectations can, from a staffing perspective, be difficult.

Law departments that are unable to hire a full-time in-house FCPA attorney should consider deploying an “inside/outside” counsel model for anti-corruption compliance. The basic approach would entail assigning an outside attorney defined ongoing compliance program operational duties, i.e., the types of responsibilities typically reserved for in-house counsel. By going this route, a company can gain access to anti-corruption expertise for routine but sensitive matters (e.g., reviewing requests for hiring third party agents or providing travel to government officials). Also – because of the nature of the relationship (i.e., retention, not full-time employment) – it can build an important independence component into its compliance program.”

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