deciding which laws the compliance program should get its arms around. We
get back to the question of “what should a compliance program cover?” It’s
just that in looking at ethics as a source of compliance we are looking at what
principles should be used when an organization must act without law or
policy to help. Wrestling with ethics in a business context may sometimes be
more difficult than figuring out what laws a compliance program should
Before we discuss the options a compliance program can adopt as an
ethical framework, it is worth pausing to note that rooting ethics as a source
of compliance is not mere theory but it is practice. As discussed above, the
Federal Sentencing Guidelines identify compliance programs as not merely
compliance programs but “Compliance & Ethics Programs.” 33
The Federal Sentencing Guidelines set out the elements of a compliance
program that can be used far beyond the relatively rare occurrences of
factoring into the culpability score of a convicted corporate entity. 34 The
particular elements the Federal Sentencing Guidelines set out have been
treated extensively in the making of a compliance program, 35 but very little
attention has been given to one aspect of the compliance expectations.
Section 8B2.1 of the Federal Sentencing Guidelines is importantly labeled
“Effective Compliance and Ethics Program.” What about the “and ethics” in
the title? This seems to be a forgotten part of the expectations of compliance
programs or at least a part that organizations find themselves in a bind trying
to address. What does the ethics refer to? The ethics in “and ethics” is cast
broadly and can only be presumed to be right action that goes above and
beyond the law. Compliance in the title of the section seems to refer to
compliance with law (and possibly to the policy commitments to live out the
law) while “ethics” seems to be referring to something other than compliance
with the law. But as noted above, it makes no sense to assume that ethics is
completely separate from the law. The law must assume rightness. And so
the term “and ethics” must mean decisions about what to do and how to act
that are not contemplated in the law, and I add not contemplated in policy.
What the “and ethics” refers to is unknown and consequently a blank slate
to write on even decades after the publication of this term. It is difficult to
see how a judge could assess the “and ethics” and there seems to be no
evidence that it has ever been factored into a culpability score calculation.
Even if ethics is an aspect of the expectations of compliance programs that
has not been used in sentencing, that does not mean it will never or cannot be
33. See generally, U.S.S.G. § 8.
34. “To have an effective compliance and ethics program, for purposes of subsection (f)
of §8C2.5 (Culpability Score) and subsection (b)( 1) of §8D1.4 (Recommended Conditions of
Probation - Organizations), an organization shall….” U.S.S.G. § 8B2.1(a).
35. DEBBIE TROKLUS & SHERYL VACCA, COMPLIANCE 101 passim (4th ed. 2016).