When was the last time someone told you not to put something in writing? Was it a tongue-in-cheek, throwaway line, or was it a firm instruction? In the event it was the latter, it will never be in your best interests to comply.
In the recent court case between EY and former partner Amjad Rihan, the judge was critical of the absence of notes and records of meetings senior EY mangers had taken part in. Absent any notes, it is speculative as to what did and did not take place. The pen has always been mightier than the sword in the long term. The question today is, is the computer mightier than the pen?
Record keeping and note taking are not to be disregarded and disrespected within the business of compliance. We are all familiar with the regulatory mindset that drives the line, “Don’t tell me, show me.” If there are no records, then it did not happen.
Now combine the two lines—“Don’t put that into writing” and “Don’t tell me, show me.” In the event you complied with the first, and likely improper, request you will fail the test posed by the second line. I have previously been accused of writing “an ass-covering email,” and I later attended a compliance conference where a lawyer advised the gathered compliance officers not to allow their staff to write “ass-covering emails.”
For the record, these emails only provide the sought-after cover if they tell the truth, absent to which they are lies and will not provide the cover. Thus, the lawyer actually advised the compliance officers not to allow staff to write the truth in emails. She also told them “not to allow lunatic whistleblowers to run around their firms.” Now some of you are immediately asking, “So what did you do about this Martin Woods?” Well, as I am a whistleblower, I left the conference, advising the organizer it was necessary for me to return to the asylum.
As a whistleblower, my written records in my diaries have always served me well and given me the opportunity to show and tell while simultaneously presenting records of what did take place. I never advise staff not to make records; on the contrary I ask to see the records to ensure they have been made and are available to all parties, including regulators, courts, and colleagues.
Missing records present opportunities for others to fabricate events and distort the truth. When one of the EY witnesses told the court an informal meeting had taken place with a third party, he was unable to produce records of the meeting, including when it took place or where it took place. Ultimately, the judge said the meeting never took place, which was damning to the witness and EY.
Police officers have always made notes and records, because they know they will likely be asked for them. Their record keeping has evolved from pens, notepads, and written interview notes to recordings and body cameras, which removes any doubt as to whether something happened. There may be questions as to why it happened, but there is no dispute it happened. For sure, no one tells a police officer to turn off his/her body camera, nonetheless, should they do so, they are inviting scrutiny, doubt, and challenges to their credibility.
Note taking and record keeping provide solid foundations upon which compliance officers can place reliance and, more importantly, transfer that reliance to others. So think the next time someone tells you not to make notes, not to retain records. It’s the equivalent of turning the cameras off in order to ensure no one sees what is about to happen. Thus, it’s one thing to not make and maintain records; it’s a whole other level when actions are taken to prevent records being made. Don’t allow others to jeopardize your credibility and integrity, because they are the most important assets/characteristics of a 21st-century compliance professional. No one should fear the consequences of doing the right thing.
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