U.S. Department of Justice building in Washington, D.C. Photo by Diego M. Radzinschi/ALM

In a recent keynote speech, a Department of Justice official offered in-house counsel some valuable insights into how federal prosecutors view corporate compliance. Here's a hint: With desire.

Principal Deputy Associate Attorney General Claire McCusker Murray told an audience on May 20 at the Compliance Week Annual Conference in Washington, D.C., that she plans to emphasize hiring more prosecutors who have in-house compliance experience.

Only in her third week on the job, Murray pointed out that Attorney General William Barr, as former general counsel at Verizon Communications for 14 years, had such experience. “You might say that corporate compliance was his day job,” she joked.

She said, “As I meet with our litigating divisions in the coming weeks, I plan to ask what firsthand experience their corporate-enforcement attorneys have not only with prosecution, but also with in-house compliance. And I will ask them to evaluate whether their staffs would be more effective if they worked to recruit at least some prosecutors with in-house compliance experience.”

By recruiting compliance-savvy prosecutors, Murray is expanding a hiring practice that began last year in DOJ's criminal division.

In her other key points, Murray talked about what DOJ was doing to “promote and incentivize corporate compliance.” They include:

• Making clear that subregulatory guidance is not law. She explained, “That's where you make a good-faith risk calculation—really, a business decision, informed by a legal assessment—about whether to follow an agency's subregulatory guidance, which may be persuasive, or whether to take another lawful approach that differs from the guidance.”

In a recent post, blogger and law professor Michael Koehler of Southern Illinois University called Murray's remarks “spot on.” Koehler often writes about how prosecutors can base decisions on guiding factors “that are not found in any law passed by Congress.”

• Having prosecutors take part in more industry-specific training symposiums “so that health care prosecutors can develop expertise in health care industry compliance, financial-crime prosecutors can develop expertise in banking industry compliance, and so on.”
• Offering credit for cooperation when a company has an effective compliance program in place, even though DOJ does not recognize, as England does, a “compliance defense.”

Murray added, “The mere existence of a fig-leaf compliance program will not garner a company any benefit. … On the other hand, a robust compliance program that the company does follow and that identifies potential problems that are timely addressed by the company could demonstrate good faith and lack of scienter or otherwise be a strong mitigating factor in the government's assessment of liability.”

In closing, Murray advised in-house counsel and compliance officers to “stay tuned” on the antitrust front, where prosecutors may soon formally recognize robust compliance programs “even when efforts to deter and detect misconduct were not fully successful in this particular instance.”

She said there is more DOJ can do to “incentivize companies that aren't doing the extraordinary, but are still investing in proactive compliance programs.”