FCPA Compliance and Ethics Blog

*** Potential SPOILER ALERT if you have not read “Go Set a Watchman” ***

One of my all-time favorite books has always been To Kill a Mockingbird. As a lawyer and a Southerner, I have admired Atticus Finch in print and on the silver screen for well over 50 years. So it was with more than some trepidation that I read “To Set a Watchman” the recently released Harper Lee novel that predated Mockingbird in creation but post-dates Mockingbird by some 20 years on the timeline of the stories.

Randall Kennedy, writing in the New York Times (NYT) book review, entitled “Harper Lee’s ‘Go Set a Watchman’”, spoke for many Southerners when he said, “Generations have admired Finch for his fidelity to due process even at the risk of unpopularity and personal harm.” In Watchman, Atticus is an old and bitter man, who derides the rise of civil rights and that “supposed paragon of probity, courage and wisdom, was a white supremacist.” He even joined the racist white Citizens Counsel for his home county. The Citizen Counsels were simply upscale organizations of their more famous cousin, the KKK. But it was just as evil and not the club you want your boyhood and professional hero to join or be a member of.

I have often wondered if an author’s works not published during his or her lifetime, should be published thereafter. I certainly felt like some of Hemingway’s work that he did not see fit to publish could well have stayed unpublished after his death. Of course Harper Lee is still alive and kicking and apparently approved release and publication of Watchman. Yet it clearly is not the work that Mockingbird is and as Kennedy noted, “Would it have been better for this earlier novel to have remained unpublished? Though it does not represent Harper Lee’s best work, it does reveal more starkly the complexity of Atticus Finch, her most admired character.” Further, does the new book go as far as Kennedy suggests and “demands that its readers abandon the immature sentimentality ingrained by middle school lessons about the nobility of the white savior and the mesmerizing performance of Gregory Peck in the film adaptation of “To Kill a Mockingbird”?

I have not worked out that final question in my own head as yet. I could simply say that they are two different works of fiction, with separate character arcs. Or perhaps the Atticus of Mockingbird and the 1930s has become a bitter old man of Watchman in the 1950s. But in the end I think both portrayals are accurate reflections of the contradictions that I grew up with in a segregated South.

Contrasting my ambivalence about Watchman and the 1950s version of Atticus Finch, is today’s topic of five key questions for a Chief Compliance Officer (CCO) or compliance practitioner to ask about their internal message of compliance. It is based on an article in the September 2015 issue of Writer’s Digest, entitled “Think Like a Nonfiction Editor – 5 Key Questions to Ask Yourself In Revising Your Article or Book”, by Debbie Harmsen. She asks you to step back and consider how your book or article will be viewed by your editor. I have adapted her insights for the CCO or compliance practitioner.

Is your message tailored to the right audience? 

It would seem to be a basic axiom that any compliance practitioner would write a message about compliance. Harmsen cautioned that you need to not only “strike the right note” but also set the right tone. This may mean you adapt your compliance message differently for different groups of employees. It would seem self-evident that a message that resonates in the US may not resonate with the same force in China or some other far-flung geographic location outside the US.

Have you chosen the strongest possible structure? 

Harmsen writes, “Structure is critical to every piece of writing. It’s the framework that hold content together. It guides the reader along and, in doing so, subtly lets them know they can trust you… If your structure helps readers know where they’re going and feel confident about the types of information and entertainment they’ll get along the way, they’re more likely to trust you and what you have to say.” For the compliance practitioner they key is whether your message is consistent and cohesive. Make sure you do not send mixed signals.

Am I offering overall takeaways? 

How many times have your heard the business folks say, don’t tell the rules, tell me what I can and can’t do. Any communication you make as a compliance practitioner is made to convey information. So have you provided any useful information that the business team can put to use in their day-to-day operations? Harmsen ended with a great line that I think sums it up neatly, “A good gut check when you’re revising your piece is to see if you executed your story in such a way that it lives up to your title/subtitle’s promise.” Does your message match up and provide a solid takeaway that the title promised?

Does each section or chapter have a clear purpose? 

I often rewrite compliance policies and procedures that were drafted by lawyers in law firms who have never practiced law, let alone compliance, from an in-house perspective. These policies and procedures read like they were written by lawyers for lawyers to read and digest. The businessperson trying to read the company policy and do the right thing has little to no chance in such scenarios. Harmsen’s dictum to “look at each section of your article or each chapter of your book and note what purpose it serves to the overall piece. If it doesn’t have one, it likely needs to be either revised or cut” translates precisely into communications from the compliance function. If language does not serve a purpose, make sure that it does in the final version. Finally, make sure that everything appears “in an order that flows logically and easily from one to the next”.

Is my voice authoritative without being overbearing? 

Harmsen nails her final section with the following, “Where is your ego in all of this? Are you like the guy who is trying too hard to impress his date?” The core of writing is like the core of compliance communications; it is about the content and not about you, the author. You certainly need to be competent in your communications around compliance but you need to also make sure your content is competent and at the end of the day that is what your written, verbal or video compliance message is about.

So I say good-bye the Atticus Finch of my youth. I still have not sorted out how I feel about Watchman but he now exists in the Harper Lee oeuvre. However Harmsen’s points are excellent guides for you to consider in any compliance communication going forward.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2015