Department of Justice officials have long touted corporate compliance as an important factor when reviewing an enforcement matter. Thus, it makes more sense for all prosecutors and supervisors—not just one individual—to have a strong understanding of what constitutes an effective approach to compliance.
That was one of the key messages of Assistant Attorney General Brian Benczkowski in remarks given at NYU School of Law’s Program on Corporate Compliance and Enforcement Conference on Oct. 12. Previously, the Criminal Division tried to address the need for compliance expertise by hiring a compliance counsel, housed in the Fraud Section.
The compliance counsel post was held by Hui Chen, who was retained by the Justice Department in 2015, before she decided to leave the agency in 2017. Prior to joining the Justice Department, Chen served as global head for anti-bribery and corruption at Standard Chartered Bank. In his remarks, Benczkowski pointed out the “inherent limitations in having the locus of our compliance expertise consolidated in a single person in a single litigating section.”
“A single compliance professional who has not been involved in a case throughout an investigation is not likely to have the same depth of factual knowledge as the attorneys who make up the case team,” he said. “Nor can any one person be a true compliance expert in every industry we encounter.”
He also said that having a single compliance expert is “shortsighted from a management perspective. Anyone who holds such a job will inevitably and quickly feel a strong pull to the private sector.”
That puts the Department of Justice in a difficult position of having to “start from scratch” and find a replacement each time, Benczkowski said. “That is the position we find ourselves in right now,” he said.
New hiring policy
Moving forward, Benczkowski said he intends to “build upon this capacity and knowledge across every section in the Division that requires it, starting with fraud and [money laundering and asset recovery section], where the bulk of our corporate enforcement activity takes place. We will accomplish this through a combination of diverse hiring and the development of targeted training programs.”
“When hiring in the Criminal Division, we will focus on building a team of attorneys who offer diverse skillsets,” he said. “That means not just attorneys with experience as prosecutors and in the courtroom, but also those who bring compliance experience to the table. In the context of corporate enforcement, having a trial attorney with experience litigating corporate cases, paired with an attorney who has experience developing and testing corporate compliance programs, allows us to leverage our talent, which should lead to better and more just outcomes.”
In his remarks, Benczkowski also spoke about how the agency plans to increase training in the compliance area. “Our expectation is that the Division will develop a training program that addresses compliance programs generally, as well as issues specific to each section and unit,” he said.
“Healthcare fraud attorneys who work on corporate cases will become experts in healthcare industry compliance; attorneys working on securities and commodities cases will become experts in compliance relating to securities laws and trading,” Benczkowski explained.
This same approach will be taken for attorneys who work on Foreign Corrupt Practices Act cases and for attorneys in the Money Laundering and Asset Recovery Section who work on cases involving the banking industry. “Ultimately, our goals are to ensure a balance of experience across the Division and to enhance the expertise of our trial attorney workforce,” he said.
“We want to ensure that we build and maintain the capacity we need not just for today or next year, but for 10 years down the road—and it will lessen the impact when people inevitably leave the Department to retire or follow other career paths.”