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 premium CLE webinar with Q&A

Conducted on Thursday, July 16, 2020

Recorded event now available

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Program Materials

This CLE webinar will examine attorney-client privilege for banks and financial institutions. We will provide practical guidance for safeguarding the attorney-client privilege, how to respond to document requests that seek privileged information, and how to respond to regulatory requests for privileged information and the consequences of sharing privileged information with regulators.

Description

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

First, sharing privileged materials to regulators is an area fraught with peril. Banks and financial institutions enjoy a unique privilege concerning 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. Counsel should understand this law, and the strategic considerations relevant to providing regulators with privileged documents.

Second, in banking, parallel private or civil litigation often occurs alongside regulatory investigations and enforcement actions. So, counsel must understand how to address discovery demands for privileged materials and how to minimize the risk of unwanted waiver.

Third, 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 confidentiality.

Listen as our authoritative panel of financial institution regulatory attorneys explains vital 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, responding to discovery requests, 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 the protection of confidentiality of shared privileged information
  2. Waiver
    1. The 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 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 confidentiality of shared privileged information with banking regulators?
  • How should banks and financial institutions respond to civil discovery demands for privileged materials?
  • What common mistakes cause companies to lose the benefit of privilege when conducting an internal investigation, and how can they be avoided?
  • What is the applicability and scope of the bank examination privilege for confidential information disclosed to banking regulatory agencies?

Faculty

Flinn, Meghan
Meghan E. Flinn
Attorney
K&L Gates

Ms. Flinn focuses her practice on the defense of companies and individuals involved in government investigations,...  |  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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