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