Macy: An increasing amount of attention has been placed on the implementation of antitrust compliance and training programs over the last several years. How do you stay up to date on important developments so that the compliance and training programs you oversee reflect current practices and thinking?
Bester: I view the increased attention as a positive development. When regulators, scholars, and practitioners are talking about compliance program best practices, that collective thinking leads to more comprehensive and effective programs. It has been quite helpful to see different law enforcement agencies—such as in the United States, Canada, and Brazil—spell out their expectations for compliance programs through both formal and informal means. For instance, the Department of Justice Antitrust Division and Federal Trade Commission recently released antitrust guidance specific to human resource professionals. Further, CADE, the Brazilian competition law regulator, has provided detailed guidance about its expectations for compliance programs. Using this guidance—even if your company does not operate in these countries—can provide a worthwhile benchmark as to how regulators will evaluate your company’s compliance program. I have also found that other sources, such as the International Competition Network or Organisation for Economic Cooperation and Development, offer materials that nicely complement the agencies’ guidance.
It can be a challenge to stay up to date on current developments in the law outside of developments in your principal risk areas when serving [in] an in-house role. Thankfully, there are lots of great resources for in-house counsel. Those include law firm client alerts and ABA teleconferences. But one method I’ve found particularly helpful is scheduling time with external counsel to dive deeply into a specific case or issue where we have plenty of time for back-and-forth discussion. Many of the traditional resources like client alerts and teleconferences offer limited time for discussion and, if the development is an important one for your job, having that in-depth discussion can be valuable.
Macy: In your role as director of Competition Law, you work closely with various external counsel. What advice would you give to private practitioners about counseling major global corporations such as Accenture?
Bester: It is crucial that both in-house and external counsel understand the nature of the relationship. I am sympathetic to the fact that external lawyers are not going to know the intricacies of a client’s business the same way that in-house lawyers will. Good in-house lawyers understand that, and good external counsel work hard to understand the business they are advising as much as they can. In-house lawyers can bridge that gap between external counsel and internal business clients.
I am a strong believer that a long-term and in-depth relationship with external counsel can yield significant benefits. To do that, there are three key components that I think will build a mutually productive relationship.
First, to recognize that the goal is a long-term relationship and must be treated as such. That means making reasonable demands and setting clear expectations. I view the main objective of my relationship with external counsel to be one where deep trust is built in both directions and in a manner where external counsel can develop a broad understanding of your business.
Second, to be forthright in a productive way when external counsel misses the mark. It is inevitable that there will be times, particularly when working at a fast pace and on complex issues, where external counsel's work product will not be what you are looking for. In those situations, I believe it is crucial to be forthcoming about those deficiencies, but in a constructive way. In my experience, even if the discussion itself is uncomfortable, external counsel appreciates the feedback because—like you—they are trying to get to the right answer and deliver the best possible advice for their clients.
Third, though it sounds obvious, it is overlooked sometimes by otherwise very qualified counsel when rendering advice: you must know your audience. For instance, when on conference calls with business executives, it is important to realize they are not (in my case) antitrust lawyers and thus do not always have an understanding of what common antitrust principles mean (e.g., what a relevant market is or what the term merger-specific efficiencies means). It is essential that external counsel eliminate jargon and complex legal concepts unless absolutely necessary.
Further, part of why I will go to external counsel is to help me review—but then narrow down—all the facts and legal outcomes of a given issue. I am thus looking to them to help sift through a comprehensive record of information in order to present me with the most relevant facts and then apply them to the law so that I can advise our business teams. In other words, I am particularly looking for external counsel’s judgment on what are the most important facts and the most likely legal outcomes for a given matter.
Macy: Before assuming your current role at Accenture, you served as a trial attorney with the Antitrust Division for nearly ten years. What do you tell your former Antitrust Division (or private practitioner) colleagues when they are considering going in-house?
Bester: There are undoubtedly more, but I can think of five key points to consider when making the transition.
First, switch your focus: Be ready to change your thinking and be as clientcentric as you possibly can. In an in-house role, your value is the quality of your advice along with the speed with which it takes you to deliver it.
Second, look at the culture: If you’re lucky, you are being viewed as a partner to the business rather than a procedural hurdle for the business to surmount. And that depends on the culture of the organization and how the legal department fits into that culture. As a regulator, I saw situations where the corporate culture was not one focused on compliance and good legal practices. Legal’s role in the corporate culture will directly affect your challenges and successes when working for a company because culture affects how you deliver your advice and how it is received. For anyone moving in-house, asking questions about Legal’s role in that culture will be important.
Third, get embedded: Good in-house lawyers spot issues in products or services that the company offers and can address them as they are developed. Being embedded within the business means you can often fix problems before they become much larger issues.
Fourth, remember your role: It is crucial to keep in mind that you support the business and not to let the perfect be the enemy of the good. Budgets may mean you must make hard choices about how to build out a program or how you select your training opportunities. For example, you may have two separate audiences that you believe need training, but you only have the budget for one session. Those hard choices, due to the realities of budgets, mean you may need to be creative in reaching both audiences or delay one of them and mitigate the risks attendant in that as best you can.
Fifth, measure risks with data, not instinct: It often makes sense to prioritize your activity in certain countries or business lines based on their risk. To do that, you may want to consider a data-driven approach where you collect internal information on the business, as well as external enforcement information. Combining those two sets of data may help you see your risk profile through a lens that is driven by information rather than other factors. That not only allows you to get your arms around managing finite budget resources while covering the biggest risks, but it also provides a data-driven reason for when you may be questioned by senior lawyers or senior management on how you chose your priorities. It provides a principled view that is something more than just a gut feeling or reacting to the latest investigation or enforcement action by a regulator.
Finally, one thing I’ve come to appreciate is that it is always important to focus on your professional network. Many people build out their professional network in order to transition from one job to another, and once that is done [they] do not spend as much time on it. But that network is just as valuable once you arrive at your new role. Both within your company and outside of it, comparing notes with peers provides invaluable feedback, and it also builds a support network when navigating difficult questions. Whether your company has forty employees or 400,000, spending time building your network will pay off in the times you most need it.
Creighton Macy is former chief of staff with the Antitrust Division of the U.S. Department of Justice. Matthew Bester is director of competition law at Accenture in Washington, D.C.
Note: The views expressed herein are those of the authors alone and do not necessarily represent the views of their current or former employers or their clients.