Compliance programs must encourage workforce members to act ethically
when the law and policy are not helping guide a situation. Ethics is a source
of compliance but it needs considerable thought on how it is fleshed out.
What role ethics has in compliance law is far from clear since law assumes
the state enforcing something and it is not clear that the state can penalize
wrong action that it has not prohibited or even that the organization has not
publicly committed itself to. Yet, ethics is intimately bound up in compliance
The preceding sections are theoretical attempts to provide a seedbed for
the development of compliance law. In this last section I would like to briefly
look at the practical aspects of compliance law, a place where compliance
law seems to be in active formation. This is principally around the imposition
of compliance programs or corrective actions that are akin to a compliance
program as a condition of settling a matter with a government agency. For
all the obvious nuzzling of compliance programs into contemporary
commercial life, there are few laws requiring the existence of compliance
programs. 48 The strictest government involvement in establishing
compliance programs comes in agreements with agencies to adopt measures
to settle allegations of non-compliance. Now, to be sure the strategic
adoption of compliance programs ahead of government action is certainly
more frequent than the shotgun compliance programs that come at the end of
a resolution, but it is these negotiated compliance programs in resolutions
which are principally driving the proactive compliance programs. Agencies
have compliance program guidances49 but it would be unfathomable to think
that a major impactor on the proactive compliance programs is not the
government designed resolution agreement variety of compliance program.
Among the variety of settlement agreements that require a compliance
48. See e.g., 17 C.F.R. §§ 270, 275 (requiring compliance programs for a small sector of
the economy, investment companies and investment advisors); see also 42 U.S. C. § 1320a–7j
(obligating skilled nursing facilities participating in the Medicare program to have “effective
compliance and ethics programs”).
49. See e.g., Questions Advisers Should Ask While Establishing or Reviewing
Their Compliance Programs, SEC. & EXCHANGE COMMISSION,
https://www.sec.gov/info/cco/adviser_compliance_questions.htm (last updated Feb.
5, 2009); see also Compliance Guidance, OFF. INSPECTOR GEN., U.S. DEP’T
HEALTH & HUM. SERVICES, https://oig.hhs.gov/compliance/compliance-guidance
(last visited Sept. 19, 2016).
49 There are 356 active HHS-OIG Corporate Integrity Agreements at the time of publication.
See generally Corporate Integrity Agreement Documents, OFF. INSPECTOR GEN., U.S. DEP’T
HEALTH & HUM. SERVICES, https://oig.hhs.gov/compliance/corporate-integrity-agreements/ cia-documents.asp (last visited Sept. 19, 2016).