Attorney-Client Privilege for Financial Institutions in Internal Investigations, Audits and Bank Regulatory Exams

Preserving Confidential Information and Work Product, Navigating the Bank Examination Privilege and Section 1828 Selective Waiver

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, January 10, 2017
Recorded event now available


This CLE webinar will discuss the nature of the attorney-client privilege for banks and financial institutions, who holds and who may invoke the privilege, the scope of the privilege, and how to respond to document requests that seek privileged information. The program will also address the applicability and scope of the attorney-client privilege asserted by a bank in response to a request by a regulatory agency for information on communication between the bank and its legal counsel.

Description

Banks and financial institutions generally wish to protect the confidentiality of corporate information when providing documents to independent auditors or non-bank government regulators. Counsel must be fully cognizant of the limits on attorney-client and work product protection, particularly with respect to the selective waiver doctrine and communications involving a company and its consultants, board members, and others.

Banks and financial institutions enjoy a unique protection privilege with respect to confidential information shared with bank regulators, including the CFPB, for supervisory or regulatory purposes. A federal statute allows financial institutions to provide privileged materials demanded of the regulators without waiving the privilege in subsequent litigation.

In the banking landscape, parallel private or civil litigation is often associated with regulatory investigations and enforcement actions, making it critical for counsel to understand the applicability and scope of privileges, statutory protections against waiver, and how to minimize the risk of unwanted loss of confidentiality. Our panel will discuss these issues.

Listen as our authoritative panel of banking attorneys explains key aspects of the attorney-client privilege as it applies during bank examinations and audits. The panel will discuss the scope of the privilege, who may invoke the privilege, responding to government requests for privileged information, and communications between a financial institution and its counsel.

Outline

  1. Bank regulatory agencies and the bank examination privilege
    1. Regulator requests to compel banks to disclose privileged information; policy positions of OCC, FRB, FDIC, CFPB and state agencies
    2. Evaluating whether to waive attorney-client privilege in response to a regulatory demand
    3. Selective waiver and Section 1828
    4. Regulators selective disclosure of confidential material to other agencies
    5. ESteps banks can take to strengthen protection of confidentiality of shared privileged information
  2. Waiver
    1. Scope of waiver (including Rule 502)
    2. Types of waiver
    3. Disclosure of investigative report
  3. Who has the privilege in internal investigations/audits
    1. Privilege considerations when interviewing employees
    2. Privilege within the corporation during the investigation
    3. Protecting communication among management
    4. Privilege and former employees
    5. Audit committees and reporting to the board
    6. Third parties in investigations
    7. The Garner doctrine—access to investigatory materials by shareholders and other beneficiaries of fiduciary relationships

Benefits

We also will discuss:

  • The nature of the attorney-client privilege for banks and financial institutions, who holds and who may invoke the privilege, the scope of the privilege, and how to respond to document requests that seek privileged information.
  • How can a bank or financial institution maintain the confidentiality of sensitive information when conducting an internal investigation—or during an audit or investigation by third-party investigators?
  • What is the applicability and scope of the bank examination privilege for confidential information disclosed to banking regulatory agencies?
  • What is the scope of federal protection against the selective waiver doctrine?
  • What steps can banks take to strengthen protection of confidentiality of shared privileged information with banking regulators?

Faculty

Nicole A. Baker, Partner
K&L Gates, Washington, D.C.

Ms. Baker's practice focuses on government enforcement and litigation matters. She regularly represents individuals and entities, including banks, broker-dealers, investment companies and investment advisers, before the SEC, FINRA, DOJ, CFPB, HUD, and other government agencies. She also advises clients with respect to private litigation matters in federal and state courts. She is experienced in conducting internal investigations on behalf of public and privately held companies, financial institutions and non-profit organizations. Representative matters have involved the financial services, consumer finance, education and health care industries.

Alex C. Lakatos, Partner
Mayer Brown, Washington, D.C.

Mr. Lakatos practices in complex international litigation, particularly on behalf of non-US financial institutions. He also counsels financial institutions on banking and securities regulatory, enforcement, legislative, and strategic issues. He is experienced in contesting issues of particular concern to non-US financial institutions, such as financial privacy, data protection, multi-jurisdictional discovery, choice‑of-law conflicts, sanctions compliance and asset forfeiture.

Stavroula E. Lambrakopoulos, Partner
K&L Gates, Washington, D.C.

Ms. Lambrakopoulos concentrates her practice in securities enforcement matters, securities and financial services litigation, internal investigations and broker-dealer regulation. She regularly represents corporate and individual clients in enforcement proceedings before the SEC, the Department of Justice, FINRA, and state securities regulators. She represents financial institutions, corporations, and their officers in complex financial services cases and securities class action litigation.  


Recordings

CLE On-Demand - Streaming Video

Includes recorded streaming video of full program plus PDF handouts.

On-demand is the only recorded format recognized for CLE credits in DE, IN, KS, LA, MS, NC, OH, OK, SC, TN, VA, WI.

AK, AZ, CA, CO, CT, DE, FL, GA, HI, IA, ID, IL, IN*, KS, KY, LA, ME, MN, MO, MT, NC, ND, NH**, NJ, NM, NV, NY, OH*, OK, OR, PA, SC, TN, TX, UT, VA, VT, WA, WI, WV, WY (Note: Some states restrict CLE eligibility based on the age of a program. Refer to our state CLE Map for additional information.)

*Only available for attorneys admitted for more than two years. For OH CLE credits, only programs recorded within the current calendar year are eligible - contact the CLE department for verification.

**NH attendees must self-determine if a program is eligible for credit and self-report their attendance.

CLE On-Demand Video $297.00

How does this work?


Recorded Event

Includes full event recording plus handouts.

Strafford is an approved provider and self-study CLE credit is available in most states.

AK, AZ, CA, CO, CT, FL, GA, HI, IA, ID, IL, KY, ME, MN, MO, MT, ND, NJ, NM, NY, OR, PA, TN, TX, UT, VT, WA, WV, WY (Note: Some states restrict CLE eligibility based on the age of a program. Refer to our state CLE Map for additional information.)

Strafford will process CLE credit for one person on each recording.

Additional copies of a recording can be purchased at a discount. Please call Strafford Customer Service toll-free at 1-800-926-7926 ext 10 or email customerservice@straffordpub.com to place your order.

Recorded Webinar Download $297.00

How does this work?

Recorded Audio Download (MP3) $297.00

How does this work?

DVD (Slide Presentation with Audio) $297.00 plus $9.45 S&H

How does this work?


Webinar

Strafford webinars offer several options for participation: online viewing of speaker-controlled PowerPoint presentations with audio via computer speakers or via phone; or audio only via telephone (download speaker handouts prior to the program).  Please note that our webinars do not feature videos of the presenters.

Program Materials

Requires Adobe Reader 8 or later. Download Acrobat FREE.

Program Materials

Requires Adobe Reader 8 or later. Download Acrobat FREE.

or call 1-800-926-7926

CLE Credits

Many states grant CLE credits for on-demand streaming audio programs and recorded events. Our programs are pre-approved in many states. Refer to our state CLE map for state-specific information.

or call 1-800-926-7926

Customer Reviews

This seminar provided a nice overview of the business environment.

Michael Petronio

Willkie Farr & Gallagher

This provided a great forum for getting up-to-date information on ongoing litigation that is moving quickly.

C. Bailey King, Jr.

Smith Moore Leatherwood

The webinar was direct and practical and oriented toward problem-solving.

Sandor Mayuga

Keesal Young & Logan

I liked the speaker's overall information on the industry and how compelling the presentation was. The program was very thought provoking, and covered more than what we expected.

Judy Chen

Chapman and Cutler

It was clear that each speaker had an enormous amount of knowledge about the subject matter.

Robson Bassett

BuckleySandler

or call 1-800-926-7926

Banking & Finance Law Advisory Board

Irving C. Apar

Partner

Thompson Hine

Mark N. Berman

Partner

Nixon Peabody

Willa Cohen Bruckner

Partner

Alston & Bird

Lawrence Kaplan

Of Counsel

Paul Hastings

Kevin Petrasic

Partner

Paul Hastings

Laura D. Richman

Counsel

Mayer Brown

Robert M. Stern

Partner

Orrick Herrington & Sutcliffe

Andrew Stutzman

Partner

Stradley Ronon Stevens & Young

or call 1-800-926-7926

Our Guarantee

Strafford webinars are backed by our 100% Unconditional Money-Back Guarantee: if you are not satisfied with any of our products, simply let us know and get a full refund. For more information regarding complaints and refunds, please contact us at 1-800-926-7926 ext 10. Complaints regarding this program can be submitted via the course evaluation found in the “Thank you” e-mail at the end of the course.