The ethics & compliance counselor role is a tightrope walk. If done well, it can move organizations from fire-fighting to solving problems. If not done well it can be a liability and undermine trust.

A counselor needs to listen to problems and work with their clients to find solutions, enabling the client to succeed without creating dependency.

Adviser versus the ethics & compliance counselor

E&C professionals are frequently asked for their advice. That’s a good thing, but it can become an automatic reflex as opposed to learning. If I ask you, “Can we invite five of our best clients and their spouses out to a Michelin-starred restaurant,” and you say “No” or even, “I’m afraid not, our policy on … says…,” the opportunity to learn is lost. You want your stakeholders to take ownership of their own lives, and risks.

In our last blog, we discussed some areas of E&C where the organization can take greater ownership and others where E&C will (probably) need to retain some involvement. So, try this: for a month, record in a notebook/file all the questions you get. At the end of the month break the questions down using this flowchart:

Ethics & Compliance counselor - questions
Ethics & Compliance counselor – what sort of questions do you get?

What do you see? Typically most of the questions will end up in the “Next time I’ll ask them to give me the answer,” section. It’s easy to give people the answers when you’ve been asked the questions so many times before. But it does also mean you keep getting asked the question until you make people think for themselves. What about the difficult questions?

Yeah, but no, but yeah

Break down the difficult questions into those where the answers are no, yes, or gray (“it depends”). A no answer generally follows a question about something that’s illegal and/or contravenes your organization’s Code and values. The “no” answers mean you may need to put your educator hat back on to reinforce some message that may not yet have sunk in.

The “yes” areas may require some more digging. Sometimes – especially after an E&C issue or near-miss – people can get paralyzed by fear. Suddenly no one is meeting clients, the E&C team is seen as the (secret) police, and no one wants to take ownership of the risks that remain. This is not healthy or sustainable. If you find you’re being asked questions where you’re replying, “Sure, you can still do that,” you might want to consider getting feedback. You could use anonymous surveys asking your colleagues how E&C makes their lives better or worse, what areas cause confusion, and what could be done to improve.

5000 shades of gray

The gray areas are where you really earn your keep. Often these gray areas follow unethical requests or actions by external stakeholders. The list below includes a few questions you might want to consider exploring when trying to find a solution. It is far from exhaustive and if you have a current issue ask for help!

  • Can the stakeholder be otherwise ethically incentivized?
    • Discussing motives and rationalization for behavior can provide alternative options (e.g. if Customs officials are demanding fees to properly process shipments, would offering them access to your air-conditioned facilities to eat their lunch in exchange for stopping illegal demands help?).
  • Will refusal create additional problems?
    • Consider if refusal may create more problems (e.g. if terminating a distributor making kickbacks may result in a compromise of sensitive information they have access to).
  • How can we plan for, and reduce additional problems?
    • If additional problems are possible, can you put in place safeguards first (e.g. if a key input in your supply chain repeatedly faces modern slavery violations, you may need to take greater ownership of supply chain monitoring, knowledge transfer, CSR, etc.)?
  • Is time our enemy or friend?
    • Can you delay, or will that create greater problems for you? Delaying is surprisingly effective, as the stakeholder may move on to easier targets or become frustrated, but if the process sits on your critical path it is unlikely to be an option.


When the gray is less about specific (in)actions by an external stakeholder, and more about regulatory uncertainty, internal processes, or judgment calls, channel your inner child (as we talked about previously) and ask questions. In particular, consider:

  • What is the pressure here?
    • Is it internal pressure (e.g. to hit targets)? Or assumed pressure (e.g. something competitors do, and therefore it must be a good idea)? If it’s internal then it’s a leadership issue, and however uncomfortable, sometimes leaders need to be challenged. If there is an assumption of pressure, that assumption should be challenged.
  • Are we looking to justify the unjustifiable?
    • Has anyone mentioned the word “loophole” or the phrase “well, that could be interpreted many ways”? If so, maybe it’s time to go back to basics. Are any of the options things that you’d struggle to justify to family members, and/or are not in the organization’s long-term interests? If so, stop looking for loopholes!
  • Has someone answered this already?  
    • A colleague on the other side of the world may have already answered the question. For example, if regulators now require you to report every interaction with certain public officials (healthcare professionals, politicians, environmental inspectors, etc.), that process may have already been managed elsewhere.
  • Who says we should do this?
    • Who is the authority driving this decision? Do they have legitimacy? Are they in full possession of the facts? Making assumptions is natural. Sadly, it’s also often a bad idea. We tend to assume that what we’re told is accurate, and that includes directives that are poorly conceived or designed to deceive. Assess the intention and credibility of the person/people allegedly pushing you into this gray area.
Ethics & Compliance counselor - try not to make assumptions
Ethics & Compliance counselor – your assumptions and those of others can cause problems

Measuring the success of the ethics & compliance counselor

The role of the ethics & compliance professional as a counselor is hard to measure. The metric of success is usually helping the organization to avoid an unknown potential consequence. In other words, you quickly get into Rumsfeldian language of “unknown unknowns” and “known unknowns”. Not helpful.

In time, however, effective E&C counseling and leadership will start to see less and less (potential) issues and increased organizational efficiency. The video below, taken from the perspective of a submarine commander (some parallels with E&C!) is a great example of how supporting, and then empowering, those around you will lead to fewer issues and improved performance (while lessening the burden on you).

In the interim, you might want to consider measuring trust. This can be regularly assessed through anonymous surveys, with questions using Likert scales, like “The E&C team is helpful: Strongly agree, agree, neither disagree nor agree, disagree, strongly disagree.” Other questions can dig further into how practical your advice is, how responsive, how clear guidance is, etc. The operative word is “anonymous”. We’ve all received supposedly anonymous surveys that require you to confirm which country, department, job role, etc. That’s not anonymous and will erode credibility and trust in the process. If you need data points, just stick to confirming the country.

Whatever you decide to measure the success of the ethics & compliance professional as a counselor, do it regularly, and adapt to the feedback. It’s not an exact science, but remember, you’re looking for progress, not perfection.

Published On: October 9th, 2019 / Categories: Compliance, Ethical culture / Tags: , , , /

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