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

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?