Attorney-Client Privilege and Bank Examination Privilege for Financial Institutions
Protecting Confidential Information in Investigations and Bank Regulatory Exams; Section 1828 Selective Waiver
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Banking and Finance
- event Date
Tuesday, August 29, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will analyze attorney-client privilege and bank examination privilege as applied to financial institutions during investigations and regulatory examinations. The panel will discuss how to respond to regulatory requests for privileged information and the consequences of sharing privileged information with different regulators, including the potential effects on subsequent document requests. The panel will also discuss the bank examination privilege, including the legal basis for the privilege, how it may be exercised in litigation, and the documents and communications covered. Finally, the panel will provide certain practical privilege considerations from an in-house perspective and an overview of the privilege landscape in securities regulation, where the bank examination privilege and Section 1828 are not applicable.
Mr. Stoker provides legal advice and counsel on laws and regulations applicable to financial products, services and operations, and enterprise initiatives. Prior to joining the firm, he served as Associate General Counsel of the Corporate Regulatory Section in Wells Fargo’s Legal Department and advised senior management and governance committees, business groups, and risk and compliance functions on bank prudential compliance requirements and in responding to supervisory and enforcement matters.
Mr. Soja coordinates and produces responses on behalf of LPL to inquiries by FINRA and state securities regulators, and he provides assistance to LPL’s bank and credit union partners in responding to bank audit and exam requests focused on their partnership with LPL to offer customers access to investment products. Mr. Soja also routinely serves as lead attorney for investigation requests by FINRA Enforcement, overseeing the firm’s responses and managing outside counsel engagements in certain cases. In these capacities, Mr. Soja regularly consults with LPL-affiliated advisors and internal stakeholders across the firm and assesses and escalates potential risks to the firm for consideration and remediation, as necessary. Prior to joining LPL, Mr. Soja worked as a litigation associate at Moore & Van Allen PLLC, where he represented global financial institutions in investigations by law enforcement and regulatory authorities in the U.S. and abroad and provided legal guidance on compliance with various federal banking regulations. Before this, Mr. Soja worked as an attorney in the Enforcement & Compliance Division of the Office of the Comptroller of the Currency, where he led and assisted in investigations of violations of law and unsafe practices at national banks and savings associations and advised OCC supervisory staff on legal issues related to the examination process and the potential impact of proposed policy changes.
Ms. Wellman’s investigations practice includes representation of financial institutions in inquiries involving the U.S. Department of Justice, the Office of the Comptroller of the Currency, the Federal Reserve, the U.K. Financial Conduct Authority, and financial regulators in other foreign countries. She has managed and coordinated internal reviews relating to systems and controls issues, including related to analysis of cross-border accounts for anti-money laundering and tax compliance issues. Her financial regulatory experience includes assisting clients with recovery and resolution planning, corporate governance matters, and other regulatory compliance issues. As part of that work, she manages the preparation of recovery and resolution planning governance playbooks for financial institution clients that guide actions and decision-making by the boards and senior management of their material entities, as well as responses to other regulatory inquiries and actions.
Protecting the attorney-client privilege is vital for banks and financial institutions, and mistakes can cause tremendous economic and reputational injury.
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 the privilege.
Parallel private or civil litigation often occurs alongside or after regulatory investigations and enforcement actions. Counsel must anticipate how production, as part of an investigation or enforcement action, may impact discovery in a civil proceeding and how to minimize the risk of unwanted waiver.
Bank regulators enjoy a unique privilege concerning information shared with them by financial institutions as part of their supervisory or regulatory obligations. This bank examination privilege allows bank regulators to maintain the confidentiality of information provided by financial institutions and refuse to produce that information in subsequent litigation. Counsel should understand this law and the strategic considerations relevant to providing regulators with privileged documents.
The panel will also contrast the position on the privilege maintained by bank regulatory agencies with those of other regulators.
Listen as our authoritative panel of financial institution regulatory attorneys explains vital aspects of the attorney-client privilege and the bank examination privilege as they apply during investigations and bank examinations.
- Who has the privilege in internal investigations/audits?
- Privilege and work product fundamentals
- Who owns and controls the privilege?
- Privilege considerations when interviewing current and former employees
- Communications with non-attorney consultants
- Waiver
- What constitutes a waiver
- Types and scope of waiver
- Bank examinations and privilege
- Source and scope of bank examination authority
- Regulator requests to compel banks and financial institutions to disclose privileged information; policy positions of OCC, FRB, FDIC, CFPB
- Selective waiver and Section 1828(x)
- The Bank Examination Privilege (BEP)
- Purpose and scope of BEP
- Ownership of BEP
- Override of BEP
- Other regulatory perspectives
- SEC and DOJ position on privilege
- Implications of SEC v. RPM International
- Conclusion
- Steps to protect the privilege
- Key questions for firms
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 information shared with banking regulators?
- How should banks and financial institutions respond to civil discovery demands for privileged materials that may have been produced to a regulator?
- What common mistakes cause banks and financial institutions to lose the benefit of privilege when conducting an investigation, and how can they be avoided?
- What is the applicability and scope of the bank examination privilege for information disclosed to banking regulatory agencies?
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