This week returns to one my favorite themes for every Chief Compliance Officer (CCO), compliance professional and compliance program: Sherlock Holmes. Over the next few days, I will be blogging on themes from the short stories to illustrate broader application to components of a best practices compliance program. In this episode, I consider the theme of institutional justice.
In the story The Adventure of the Abbey Grange, Holmes feels something is just not right about the story told by Lady Mary Brackenstall regarding the death of her step-father Sir Eustace Brackenstall. Holmes’ largest concern turns on the contents of three wine glasses, one of which contains beeswing and the other two do not. It turns out that Sir Eustace was killed by a companion of Lady Mary, which Holmes uncovers. However, Holmes has an adaptability for justice when the situation demands it, stating, “Once or twice in my career I feel that I have done more harm by my discovery of the criminal than ever he had done by his crime.” Satisfied the actions of the criminal and his accomplice (Lady Mary) were both warranted and just; Holmes does not report his findings to the local police. Klinger dryly noted, “his sympathies may have overridden his judgement: Many scholars believe that Holmes lets himself be fooled by a villainess clever than he credited.”
This story illustrates a key point for every CCO and compliance practitioner; institutional justice. As a CCO or compliance practitioner how can you work towards achieving it? Institutional justice is a primary factor as to whether an employee will come forward with a concern. Management might try a quick-fix reaction to a messy investigation with more reporting mechanisms, posters or asking a Chief Executive Officer (CEO) to use compliance training to generally get the word out. Employees view it as a trust issue, and you must garner that trust through providing institutional justice.
One of the ways to insure institutional justice is through the Fair Process Doctrine which mandates that every hotline complaint should be treated with both dignity and respect; with an efficient and thorough vetting. From there if discipline is warranted, a company should follow a prescribed process. Follow that process and an employee would almost always uphold a company’s decisions. Fail to follow the process and the employee would be required to engage in remedial action.
Companies must have an absolute prohibition against retaliation. If not, any sense of institutional justice will be destroyed. A final problem of inconsistent outcomes is that companies must demonstrate that consistent and fair outcomes are routine, regardless of people, relationships or scenarios. If employees view outcomes as fair, they will be more compelled to report concerns. Employees know that inconsistency equals personal risk.
Both the Fair Process Doctrine and the more recent concept of institutional justice are central to the modern compliance profession. The compliance profession must remind companies that even if they can engage in an action, they should not always do so. Sometimes the reputational damage, even if an action is legal, is so great that the risk cannot be managed. The compliance discipline within every company is the one corporate function most well suited to bringing institutional justice into the fabric of a company.
I have used three primary resources in putting together this series: Maria Konnikova’s Mastermind (Konnikova); the online site shmoop.comand its blog post, The Return of Sherlock Holmes (shmoop); and finally the most seminal print work on the entire Holmes canon, the three-volume The New Annotated Sherlock Holmes (Klinger) edited with notes by Leslie S. Klinger.