92 Journal of Regulatory Compliance Vol. I
used. In fact, presumably it would be in the interest of defense counsel to
persuade a judge that the ethics dimension of a compliance program should
be considered in calculating the culpability score. There is every incentive
for organizations to want to get a court to recognize the ethics part. The words
“and ethics” must mean something or at some point the words need to be
The Federal Sentencing Guidelines is not the only government document
to reference ethics in compliance programs, even though agencies seem to
shy away from using the word “ethics.” For example, the HHS-OIG’s
compliance program guidance for hospitals, issued in 199837 and
supplemented in 2015, 38 refers to a code of conduct that is distinct from the
organization’s written standards, policies, and procedures. 39
Government commentary seems loathe to fill in the details of what an
ethics program should look like or what should go into the code of conduct.
Organizations must choose how to fill in the content and while it is possible
to fill it in with platitudes about doing the right thing, which no one would
disagree with, a few guiding concrete principles seem in order. But before
getting to the ethical principles a company could offer we should step back
and look at the choice of frameworks.
There are three generally accepted ethical frameworks: consequentialism,
deontology, and virtue. While the ethics that compliance programs attempt
to incorporate are what might generally be referred to under “business
ethics,” there is nothing peculiar about business ethics which anchors any
fourth category of ethics unique to commercial life. And to the extent the
profit principle could be said to be an ethical framework, then it would likely
fit neatly within the consequentialist camp.
In discussing the three frameworks, it is important to stress that an article
of this length can only touch on these areas with the highest degree of
superficiality. Within each framework there are variations and there may be
36. See Diana E. Murphy, The Federal Sentencing Guidelines for Organizations: A
Decade of Promoting Compliance and Ethics, 87 IOWA L. REV. 697, 714–716 (2002)
(discussing the the mysterious use of the term “ethics” in the guidelines).
37. Publication of the OIG Compliance Program Guidance for Hospitals, 63 Fed. Reg.
35,8987 (Feb. 23, 1998).
38. OIG Supplemental Compliance Program Guidance for Hospitals, 70 Fed. Reg.
19,4858 (Jan. 31, 2005).
39. The 1998 Hospital Guidance has only one explicit reference to ethics and it comes in
the context of training: “As part of their compliance programs, hospitals should require
personnel to attend specific training on a periodic basis, including appropriate training in
Federal and State statutes, regulations and guidelines, and the policies of private payors, and
training in corporate ethics, which emphasizes the organization’s commitment to compliance
with these legal requirements and policies.” Publication of the OIG Compliance Program
Guidance for Hospitals, supra note 38, at 8994 (emphasis added). The 2005 Hospital Guidance
has no uses of the term “ethics” but reinforces the use of a code of conduct.