Attorney-Client Privilege and Bank Examination Privilege for Financial Institutions
Protecting Confidential Information in Investigations and Bank Regulatory Exams; Section 1828 Selective Waiver
Recording of a 90-minute premium CLE video webinar with Q&A
This CLE course will analyze attorney-client privilege and bank examination privilege as applied to financial institutions in the course of investigations and regulatory examinations. The panel will discuss how to respond to regulatory requests for privileged information and the consequences of sharing privileged information with regulators, including the potential effects on subsequent document requests. The panel will also discuss the bank examination privilege, including the legal basis for the privilege, how it may be exercised in litigation, and the documents and communications covered. Finally, the panel will provide certain practical privilege considerations from an in-house perspective and an overview of the privilege landscape in securities regulation, where the bank examination privilege and Section 1828 are not applicable.
Outline
- Who has the privilege in internal investigations/audits?
- Privilege and Work Product fundamentals
- Who owns and controls the privilege
- Privilege considerations when interviewing current and former employees
- Communications with non-attorney consultants
- Waiver
- What constitutes a waiver
- Types and scope of waiver
- Bank examinations and privilege
- Source and scope of bank examination authority
- Regulator requests to compel banks and financial institutions to disclose privileged information; policy positions of OCC, FRB, FDIC, CFPB
- Selective waiver and Section 1828(x)
- The Bank Examination Privilege (BEP)
- Purpose and scope of BEP
- Ownership of BEP
- Override of BEP
- Other Regulatory perspectives
- SEC and DOJ position on privilege
- Implications of SEC v. RPM International
- Conclusion
- Steps to protect the privilege
- Key questions for firms
Benefits
The panel will review these and other notable issues:
- How and when should banks and financial institutions share privileged materials with their regulators?
- What steps can banks and financial institutions take to strengthen the protection of information shared with banking regulators?
- How should banks and financial institutions respond to civil discovery demands for privileged materials that may have been produced to a regulator?
- What common mistakes cause companies to lose the benefit of privilege when conducting an investigation, and how can they be avoided?
- What is the applicability and scope of the bank examination privilege for information disclosed to banking regulatory agencies?
Faculty
Neil T. Bloomfield
Co-Head of Financial Regulatory Advice & Response
Moore & Van Allen
Mr. Bloomfield advises financial services firms on their engagements with government entities. His matters primarily... | Read More
Mr. Bloomfield advises financial services firms on their engagements with government entities. His matters primarily fall into two categories—advising institutions on regulatory compliance issues and conducting investigations in response to issues raised internally or by a government authority. Mr. Bloomfield regularly represents clients with responses to inquiries by federal (e.g. CFTC, DOJ, OCC, FRB, SEC, IRS, and various U.S. Attorney's offices), state (e.g. the North Carolina Attorney General and other state Attorneys General), and international authorities (e.g. U.K. Financial Conduct Authority, European Commission, Monetary Authority of Singapore, and Hong Kong Monetary Authority). The matters range from market wide inquiries like the Panama Papers, foreign exchange trading, and LIBOR to issues experienced at individual institutions, including whistleblower complaints, concerns related to auditing practices, vendor management, customer remediation, and consumer lending. He also assists clients in responding to a variety of regulatory requirements including Comprehensive Capital Analysis and Review for ongoing regulatory investigations and potential litigation, Recovery and Resolution Planning and related training for boards of directors, Risk Data Aggregation and Reporting Requirements, and Sarbanes-Oxley whistleblower programs. As part of this practice, Mr. Bloomfield provides assistance in designing or enhancing programs, legal opinions, policies, and training materials to promote internal initiatives and achieve regulatory compliance.
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John A. Stoker
Financial Regulatory Advice & Response Senior Counsel
Moore & Van Allen
Mr. Stoker provides legal advice and counsel on laws and regulations applicable to financial products, services and... | Read More
Mr. Stoker provides legal advice and counsel on laws and regulations applicable to financial products, services and operations, and enterprise initiatives. Prior to joining the firm, he served as Associate General Counsel of the Corporate Regulatory Section in Wells Fargo’s Legal Department and advised senior management and governance committees, business groups, and risk and compliance functions on bank prudential compliance requirements and in responding to supervisory and enforcement matters.
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Brian Soja
Vice President for Regulatory Exams and Inquiries
LPL Financial
Mr. Soja coordinates and produces responses on behalf of LPL to inquiries by FINRA and state securities regulators, and... | Read More
Mr. Soja coordinates and produces responses on behalf of LPL to inquiries by FINRA and state securities regulators, and he provides assistance to LPL’s bank and credit union partners in responding to bank audit and exam requests focused on their partnership with LPL to offer customers access to investment products. Mr. Soja also routinely serves as lead attorney for investigation requests by FINRA Enforcement, overseeing the firm’s responses and managing outside counsel engagements in certain cases. In these capacities, Mr. Soja regularly consults with LPL-affiliated advisors and internal stakeholders across the firm and assesses and escalates potential risks to the firm for consideration and remediation, as necessary. Prior to joining LPL, Mr. Soja worked as a litigation associate at Moore & Van Allen PLLC, where he represented global financial institutions in investigations by law enforcement and regulatory authorities in the U.S. and abroad and provided legal guidance on compliance with various federal banking regulations. Before this, Mr. Soja worked as an attorney in the Enforcement & Compliance Division of the Office of the Comptroller of the Currency, where he led and assisted in investigations of violations of law and unsafe practices at national banks and savings associations and advised OCC supervisory staff on legal issues related to the examination process and the potential impact of proposed policy changes.
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