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

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Conducted on Tuesday, June 28, 2022

Recorded event now available

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Course Materials

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.

Description

Protecting the attorney-client privilege is vital for banks and financial institutions, and mistakes can cause tremendous economic and reputational injury.

Conducting internal investigations poses unique risks. Counsel should understand how to cloak investigations with privilege and avoid pitfalls that may result in an unwanted loss of the privilege.

Parallel private or civil litigation often occurs alongside or after regulatory investigations and enforcement actions. Counsel must anticipate how production as part of an investigation or enforcement action may impact discovery in a civil proceeding and how to minimize the risk of unwanted waiver.

Bank regulators enjoy a unique privilege concerning information shared with them by financial institutions as part of their supervisory or regulatory obligations. This bank examination privilege allows bank regulators to maintain information provided by financial institutions and refuse to produce that information in subsequent litigation. Counsel should understand this law and the strategic considerations relevant to providing regulators with privileged documents.

The panel will also contrast the position on the privilege maintained by bank regulatory agencies with those of other regulators.

Listen as our authoritative panel of financial institution regulatory attorneys explains vital aspects of the attorney-client privilege and the bank examination privilege as they apply during investigations and bank examinations.

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Outline

  1. Who has the privilege in internal investigations/audits?
    1. Privilege and Work Product fundamentals
    2. Who owns and controls the privilege
    3. Privilege considerations when interviewing current and former employees
    4. Communications with non-attorney consultants
  2. Waiver
    1. What constitutes a waiver
    2. Types and scope of waiver
  3. Bank examinations and privilege
    1. Source and scope of bank examination authority
    2. Regulator requests to compel banks and financial institutions to disclose privileged information; policy positions of OCC, FRB, FDIC, CFPB
    3. Selective waiver and Section 1828(x)
  4. The Bank Examination Privilege (BEP)
    1. Purpose and scope of BEP
    2. Ownership of BEP
    3. Override of BEP
  5. Other Regulatory perspectives
    1. SEC and DOJ position on privilege
    2. Implications of SEC v. RPM International
  6. Conclusion
    1. Steps to protect the privilege
    2. 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

Bloomfield, Neil
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

Stoker, John
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

Soja, Brian
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

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