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

Confidential Information and Work Product; Bank Examination Privilege; Section 1828 Selective Waiver

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


Conducted on Tuesday, January 9, 2018

Recorded event now available

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Program Materials

This CLE webinar will discuss 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 protect the confidentiality of corporate information when providing documents to independent auditors or non-bank government regulators. Counsel must be 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 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 by regulators without waiving the privilege in subsequent litigation.

In banking, parallel private or civil litigation is often associated with regulatory investigations and enforcement actions. So, counsel must understand the applicability and scope of privileges, statutory protections against waiver, and how to minimize the risk of unwanted loss of confidentiality.

Listen as our authoritative panel of financial institution regulatory 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.

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Outline

  1. Bank regulatory agencies and the bank examination privilege
    1. Regulator requests to compel banks and financial institutions 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. Steps banks and financial institutions 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

The panel will review these and other key issues:

  • The nature of the attorney-client privilege for banks and financial institutions and how to respond to document requests that seek privileged information
  • How can a financial institution maintain the confidentiality of sensitive information during an internal investigation or an 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 and financial institutions take to strengthen protection of confidentiality of shared privileged information with banking regulators?

Faculty

Baker, Nicole
Nicole A. Baker

Partner
K&L Gates

Ms. Baker's practice focuses on government enforcement and litigation matters. She regularly represents individuals...  |  Read More

Lakatos, Alex
Alex C. Lakatos

Partner
Mayer Brown

Mr. Lakatos practices in complex international litigation, particularly on behalf of non-US financial institutions. He...  |  Read More

Lambrakopoulos, Stavroula
Stavroula E. Lambrakopoulos

Partner
K&L Gates

Ms. Lambrakopoulos concentrates her practice in securities enforcement matters, securities and financial services...  |  Read More

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