The Board's Education Through Compliance Consultants

Organizations today face increasing expectations to ensure the effectiveness of their compliance programs. Regulatory guidance, including the Department of Justice’s Evaluation of Corporate Compliance Programs, emphasizes not only the existence of compliance structures but their ongoing effectiveness in preventing, detecting, and responding to misconduct. These expectations place boards of directors at the center of compliance oversight, even where boards may lack the expertise or information necessary to assess whether internal systems are functioning as intended. In response, organizations have turned to a growing market of outside compliance consultants to assist boards in evaluating speak-up mechanisms, investigation processes, compliance culture, and program design. These engagements can include program assessments, interviews, cultural audits, climate surveys, and other evaluative tools, and they increasingly intersect with complex regulatory environments and emerging technologies that further complicate compliance oversight. As boards navigate these requirements, they face consequential choices about when to engage outside consultants and which types of consultants to retain—choices that are often treated as routine but in fact carry significant governance implications.

This Article argues that boards must take seriously their responsibility to secure appropriate education for compliance oversight — a duty that often requires not just retaining outside consultants, but deliberately structuring, constraining, and governing those engagements so that the education boards receive is candid, independent, and aligned with the firm’s purpose and fiduciary commitments. The Article examines how differences in consultants’ constraints, incentives, and institutional positions may affect the education boards receive. Professional norms may help channel consultant behavior, but they are neither universal nor sufficient. Where consultants lack formal professional obligations, boards may bear greater responsibility for structuring engagements around clearly articulated, measurable standards rooted in the firm’s purpose, ethical commitments, and risk profile, and for defining expectations of candor, independence, and escalation. Ultimately, the question is not whether boards should engage compliance consultants to assist them—that is largely a foregone conclusion—but how boards can structure those engagements to ensure they are meaningfully educated for the oversight role they retain.