Attorney-Client Privilege For Financial Institutions In Internal .

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Presenting a live 90-minute webinar with interactive Q&AAttorney-Client Privilege for FinancialInstitutions in Internal Investigations,Audits and Bank Regulatory ExamsPreserving Confidential Information and Work Product, Navigating theBank Examination Privilege and Section 1828 Selective WaiverTUESDAY, JANUARY 10, 20171pm Eastern 12pm Central 11am Mountain 10am PacificToday’s faculty features:Nicole A. Baker, Partner, K&L Gates, Washington, D.C.Alex C. Lakatos, Partner, Mayer Brown, Washington, D.C.Stavroula E. Lambrakopoulos, Partner, K&L Gates, Washington, D.C.The audio portion of the conference may be accessed via the telephone or by using your computer'sspeakers. Please refer to the instructions emailed to registrants for additional information. If youhave any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

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Attorney-Client Privilege for Financial Institutions in InternalInvestigations, Audits and Bank Regulatory Exams:Preserving Confidential Information and Work Product, and Navigating BankExamination Privilege and Section 1828 Selective WaiverStrafford Publications CLE WebinarJanuary 10, 2017

Agenda Introduction Protections Commonly Asserted by Financial Institutions Bank Examination Privilege: Purpose, Scope, andRegulator Positions Attorney-Client Privilege: Application and Waiver Internal Investigations: Protecting Communications, UpjohnWarnings, and Reporting to the Government and the Board Practice Tips6

Privileges Commonly Asserted by Financial Institutions Bank Examination PrivilegeoProtects confidential supervisory information and related communications betweenfinancial institutions and prudential regulators (OCC, CFPB, FRB, FDIC, state bankingregulators)oIntended to preserve “absolute candor” between banks and their regulators that is“essential to the effective supervision of banks” Attorney-Client PrivilegeoApplies to confidential communications, oral or written, between an attorney and herclient that relate to the provision or receipt of legal advice and arise from theattorney-client relationshipoIntended to promote “full and frank communications” between an attorney and herclients Work Product DoctrineoApplies to documents created by or at the direction of counsel in anticipation ofpotential litigationoIntended to protect from discovery attorneys’ mental impressions, opinions, or legaltheories concerning specific litigation7

Privileges Commonly Asserted by Financial Institutions, cont’d Suspicious Activity Report (“SAR”) PrivilegeoProtects content of Suspicious Activity Report (“SAR”) filed with the FinCEN and theFinancial Institution’s regulatoroCreated by statute and regulation, and enforced by judiciary.oIntended to achieve several objectives, including encouraging financial institutions tocommunicate openly with law enforcement to facilitate law enforcement’s access toaccurate and complete information, to keep confidential bank methods for identifyingand preventing wrongdoing, to prevent tipping of wrongdoers, and to protect privacyof bank customers.8

Contexts in Which a Financial Institution May Have toConsider Privilege Issues Examination by a Prudential RegulatoroIn a routine exam by the FRB, you are asked to produce any compliance reports receivedby management. Last month, you hired a law firm to conduct a compliance review of thebank’s mortgage servicing function. What should you consider when evaluating whetherto claim privilege over the law firm’s written report in connection with the examinationrequest? Enforcement Action by Government AgenciesoYou have received a CID from the CFPB requesting documents that includecommunications with the FRB in relation to a routine exam. What steps should you taketo ensure full response to the CID without waiving the FRB’s bank examination privilege? Internal InvestigationoIn response to a whistleblower complaint, you have initiated an internal investigation of aline of business. How do you approach employee witnesses for interviews andinformation? Private LitigationoThe plaintiffs in an ongoing litigation matter request discovery of documents submitted tothe CFPB during its investigation of a potential enforcement action. Do you have solidgrounds on which to object to this request?9

Contexts in Which a Financial Institution May Have toConsider Privilege Issues Third Party SubpoenaoYou have a report from your lawyer, provided to you for legal advice, describing theconclusions and recommendations arising from an internal investigation concerningpotential insider involvement in a securities fraud. At the request of your regulator, theOCC, you have shared it with the OCC. You receive a third party subpoena from plaintiffswho are bringing a securities fraud action, seeking a copy of the internal investigationreport. Are you required to produce it? Have you waived privilege? Civil discoveryoYou are being sued for negligently failing to detect and prevent wrongdoing by a customerwho maintained an account at your institution into which the customer received illegalbribes. In fact, your systems flagged this activity and your BSA/AML department filed aSAR. Can you disclose the SAR in your own defense, to show that your institution was notnegligent?10

Bank Examination Privilege: Purpose Why is this privilege recognized? How do agencies benefit from it?How do financial institutions benefit from it?Bank safety and soundness supervision is an iterative process of comment by theregulators and response by the bank. The success of the supervision thereforedepends vitally upon the quality of communications between the regulated bankingfirm and the bank regulatory agency . . . . Because bank supervision is relativelyinformal and more or less continuous, so too must be the flow of communicationbetween the bank and the regulatory agency. Bank management must be open andforthcoming in response to the inquiries of bank examiners, and the examiners mustin turn be frank in expressing their concerns about the bank. These conditions simplycould not be met as well if communications between the bank and its regulators werenot privileged.In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 633 (D.C.Cir. 1992) (emphasis added).[The privilege] arises out of the practical need for openness and honesty betweenbank examiners and the banks they regulate, and is intended to protect the integrity ofthe regulatory process by privileging such communications.Wultz v. Bank of China Ltd., 61 F. Supp. 3d 272 (S.D.N.Y. 2013) (internal quotationsomitted).11

Bank Examination Privilege: Application/Operation How is this privilege enforced?oThe privilege belongs to the regulator. And the documents subject to the privilegebelong to the regulator, even if they are in the physical possession of the bank.Thus, the regulator must be given the opportunity to assert and defend theprivilege.oBanks should contact the regulator that owns the privilege in the event thatprotected documents are requested in private litigation.oCourts have allowed regulators to intervene to assert the bank examinationprivilege in response to a discovery request.oSee Local 295/Local 851 IBT Employer Grp. Pension Trust, 2012 WL 346658(S.D. Ohio Feb. 2, 2012) (“Because the burden of establishing the bankexamination privilege falls on the Federal Reserve, it holds a substantial legalinterest in determining—before potentially confidential documents areproduced—whether it must advance the privilege.”).12

Bank Examination Privilege: Application/Operation To whom does the privilege apply?ooThe following prudential regulators may assert the bank examination privilege:1.Office of the Comptroller of the Currency (“OCC”)2.Board of Governors of the Federal Reserve System (“FRB”)3.Federal Deposit Insurance Corporation (“FDIC”)4.Consumer Financial Protection Bureau (“CFPB”)5.State banking authoritiesForeign regulators may also have rights under this privilege.13

Bank Examination Privilege: Scope What documents does the privilege cover?oThe privilege covers “confidential supervisory information,” which, in general, includesdocuments or information reflecting the opinions, deliberations, or recommendationsof the bank supervisory agencies (e.g., documents authored by prudential regulatorsand (potentially) documents/communications concerning or referring to materialsauthored by or sent to prudential regulators). What documents are not covered?oPurely factual material falls outside of the privilege. In other words, the document mustreflect opinions and the deliberative process of the bank supervisory agency.ooFor example, “numerous courts” have concluded that the OCC’s bank examinationreports “are at least partly factual” and therefore fall outside the scope of thebank examination privilege. Wultz, 61 F. Supp. 3d at 287.Determining which documents are covered can be complicated. Court acknowledgethat making the determination is a fact intensive inquiry. In some cases, facts andopinions may be inextricably intertwined. Further, regulators may take a broader viewthan the courts.14

Bank Examination Privilege: Scope Importantly, the privilege is qualified, not absolute.oA court may override the privilege if the requesting party demonstrates good cause;that is, a public interest in disclosure that outweighs the agency’s interest inconfidentiality.oThe factors a court may consider in this analysis include:o The relevance of the evidence sought to be protected The availability of other evidence The seriousness of the litigation and the issues involved The role of the government in the litigation The possibility of future timidity by government employees (i.e., chilling effect)E.g., Wultz: The court held that the “relevance of the non-factual portions of the OCC’sCommunications, the lack of adequate substitutes, and in particular the seriousness ofthe litigation [related to acts of international terrorism under the Antiterrorism Act]and the role of the government in passing the ATA, outweigh the risk of a chillingeffect.”15

Bank Examination Privilege: Regulator Positions, ApplicableStatutes/Regulations, and ExamplesEach bank supervisory agency has promulgated its own regulations to define“confidential supervisory information” (CSI) and the parameters of itsdisclosure. But, a bank should not rely exclusively on these regulations whendetermining whether to withhold documents in private litigation.See In re Bankers Trust Co., 61 F.3d 465 (6th Cir. 1995) Plaintiff issued a petition for writ of mandamus demanding that Defendant produce “alldocuments submitted to or received from the Federal Reserve,” including those relating toexamination and inspection of the bank. The district court granted the order. On appeal, Defendant argued that if it complied with the district court’s writ, it wouldviolate the FRB’s regulations prohibiting disclosure of CSI; but if it did not comply, itwould be subject to sanctions under the Federal Rules of Civil Procedure. The Sixth Circuit reasoned that “Congress did not empower the [FRB] to prescriberegulations that direct a party to deliberately disobey a court order, subpoena, or otherjudicial mechanism requiring the production of information.” To the extent the FRBregulations require this, they “cannot be recognized by this court.” However, the Sixth Circuit reversed the district court’s order on the grounds that it did notseparately consider the application of the bank examination privilege.16

Bank Examination Privilege: Regulator Positions, ApplicableStatutes/Regulations, and ExamplesDefinition of CSI Applicable RegulationsoFRB --- 12 C.F.R. § 261.2(c)(1)oOCC --- 12 C.F.R. § 4.32oFDIC --- 12 C.F.R. § 309.5(g)(8)oCFPB --- 12 C.F.R. § 1070.2 As a general matter, the regulations define CSI as:oExamination materials (reports of examination, inspection and visitation, confidentialoperating and condition reports, and any information derived from, related to, orcontained in such reports)oInformation gathered in the agency’s exercise of its enforcement responsibilitiesoDocuments prepared by the regulator or any other federal or state financial institutionssupervisory agency17

Bank Examination Privilege: Regulator Positions, ApplicableStatutes/Regulations, and ExamplesRegulator-Specific Examples of CSI FRBoFirst day letters; reports of examination or inspection and information contained therein,such as supervisory ratings; information related to non-public enforcement actions oExcludes documents prepared by a supervised financial institution for its ownbusiness purposes that are in its possession.See Fed. Reserve Bank of N.Y., Circular No. 11002, Improper Disclosure of ConfidentialSupervisory Information by Financial Institutions (Dec. 5, 1997); Press Release, OCC,Interagency Advisory on the Confidentiality of the Supervisory Rating and OtherNonpublic Supervisory Information (Feb. 28, 2005). OCCoReports of examination; supervisory correspondence; investigatory files compiled by theOCC or Office of Thrift Supervision in connection with an investigation; internal agencymemoranda; testimony from or an interview with an agent of OCC or OTS Excludes statistical material that does not disclose the affairs of any individual,corporation, or other entity.18

Bank Examination Privilege: Regulator Positions, ApplicableStatutes/Regulations, and Examples FDICoRecords contained in or related to examination; operating or condition reports preparedby, on behalf of, or for the use of the FDIC or any agency responsible for the regulation orsupervision of financial institutions CFPBoCFPB reports and supervisory letters; communications between CFPB and supervisedentity relating to an exam or other supervisory activities; information created by theCFPB in exercise of its supervisory authority (documents that CFPB examiners haveprepared in the course of examination, supervisory information requests and responses,CFPB supervisory actions and related submissions and correspondence)ooExcludes documents prepared by a financial institution for its own businesspurposes and that the CFPB does not possessAny documents prepared by, or on behalf of, or for the use of the CFPB or any otherfederal, state, or foreign government agency in the exercise of supervisory authority overa financial institutionoSee CFPB Compliance Bull. 2015-01, Treatment of Confidential Supervisory Information(Jan. 27, 2015).19

Bank Examination Privilege: Regulator Positions, ApplicableStatutes/Regulations, and ExamplesSecuring Approval from the Agency As a general matter, a financial institution can disclose CSI to directors,officers, subsidiaries/parents, and third-party services providers, such aslawyers and accountants, without getting approval from the banksupervisory agency. Otherwise, a financial institution seeking disclosure must securepermission from the agency. Notably,oFRB and OCC regulations require approval prior to disclosing to law enforcementagencies and other non-financial institution supervisory agencies.oFDIC regulations require approval prior to disclosing to state banking agencies, federalfinancial institutions supervisory agencies, and other agencies.oCFPB regulations require approval prior to disclosing to federal or state agencies;approval turns on whether the disclosure is relevant to the exercise of the agency’sstatutory or regulatory authority.20

Bank Examination Privilege: Regulator Positions, ApplicableStatutes/Regulations, and ExamplesNon-Disclosure Agreements with third parties do not justify withholdingrequested information from prudential regulators. CFPBo“A supervised financial institution should not attempt to use an NDA as the basis forfailing to provide information sought pursuant to supervisory authority.”See CFPB Compliance Bull. 2015-01, Treatment of Confidential Supervisory Information(Jan. 27, 2015). FRBo“It is contrary to Federal Reserve regulation and policy for agreements to containconfidentiality provisions that (1) restrict the banking organization from providinginformation to Federal Reserve supervisory staff; (2) require or permit, without the priorapproval of the Federal Reserve, the banking organization to disclose to a counterpartythat any information will be or was provided to Federal Reserve supervisory staff; or (3)require or permit, without the prior approval of the Federal Reserve, the bankingorganization to inform a counterparty of a current or upcoming Federal Reserveexamination or any nonpublic Federal Reserve supervisory initiative or action.”See Board of Governors of the Fed. Reserve Sys., Confidentiality Provisions in Third PartyAgreements, SR 07-19 (Dec. 13, 2007).21

Bank Examination Privilege: DistinctionsApplicable to Foreign Regulators Materials reflecting supervision by non-US regulars (which would be CSIin the United States) may be subject to different rules abroad.o Important to have experienced local counsel Example: U.K. Financial Conduct Authority (“FCA”) / U.K. PrudentialRegulation Authority (“PRA”)o Does not have a concept of CSI privilegeo With regard to material provided by the bank, the FCA/PRA have astatutory duty of confidentiality, but this is not a privilege.o As a general matter, the FCA/PRA would decline requests/subpoenasfor their internal reports or documents. Whether such documentsmust then be disclosed would be at the discretion of the court, thereis not a hard-and-fast rule. Courts often will back the FCA.o If the FCA’s reports/documents are in the hands of the bank, theywould not be protected from disclosure.22

Bank Examination Privilege: DistinctionsApplicable to Foreign Regulators Example: German Financial Supervisory Authority(“BaFin”) (Note thatECB is now the relevant prudential regulator for banks in Germanyo Under the German Freedom of Information Act law, BaFin mustpublish information it receives, subject to certain carve outs. Thosecarve outs would, as a practical matter, keep most of the sensitiveinformation that BaFin receives from a regulated entity out of thepublic sphere.o Typically, the only way for a third party to obtain information fromBaFin, even if there is ongoing litigation, is through the Freedom ofInformation Act.23

Bank Examination Privilege: DistinctionsApplicable to Foreign Regulators Example: Swiss Financial Market Supervisory Authority (“FINMA”)o The Swiss Supreme Court in 2015 held that FINMA lacked authorityto prevent a Swiss bank from transferring a FINMA order to thirdparties.o Effective 2016, Swiss law was amended so that Swiss banks mustnotify FINMA before providing information relating to the bank’ssupervisory relationship with FINMA to a non-Swiss regulator.FINMA can then refuse permission at its discretion.o If a Swiss bank wants to provide such information in private civillitigation abroad, it must comply with other Swiss laws, e.g., dataprotection, bank secrecy, but no concept akin to CSI will beapplicable.24

Attorney-Client Privilege: Application What are the elements of the privilege?o Attorney-client privilege requires: (1) a communication, (2) madebetween privileged persons, (3) in confidence, and (4) for thepurpose of seeking legal advice Can the “legal advice” element create a risk that certain internalinvestigations will not be covered by privilege?o Legal advice should be expressly sought and provided.o Was the investigation done to follow a corporate policy, to remediateerrors, or to obtain legal advice? Was the investigation done in theordinary course of business, irrespective of the prospect of litigation?o Does legal advice predominate?o Was an attorney leading the investigation? Was the attorneyfunctioning as an attorney, or giving business advice? Consider role“dual hat” employees, such as lawyers in compliance functions.25

Attorney-Client Privilege: Application When are communications with employees covered by the attorney-clientprivilege? Are all communications relating to an internal investigationcovered?o Communications with employees instructed to assist attorney, onmatters within scope of job duties, employees understand purpose ofassisting the corporation to obtain legal advice. Communicationsmust only go to persons who “need to know.”o Most courts hold that former employees are also covered as toattorney discussions concerning facts during their employment. What about communications with outside auditors?o Sharing with outside auditors generally waives privilege.26

Attorney-Client Privilege: Application Is attorney-client privilege effective as against regulator? FRB has noted that “[a]n argument can be made that [the FRB’s]statutory authority to conduct on-site examinations overrides anylegal privilege the financial institution may have not to disclose theinformation [on its premises].” FRB examiners are to immediately toadvise the FRB’s general counsel if a financial institution assertsprivilege over documents that the examiner believes are necessary tocarry out an effective examination. OCC permits its examiners to “request [certain] privileged materials,”but “only when the bank’s capital and earnings are exposed tomaterial risk, or when the bank’s exposure is otherwise consideredsignificant.”27

Attorney-Client Privilege: Waiver Scope of waivero Intentional waiver extends to all other the same subject matter “ifthey ought in fairness to be considered together.” Fed. R. Evid.502(a).o Sword and shield. Courts will not allow a party to waive only thosecommunications favorable to its cause.o Determining the scope of a subject matter waiver is a fact intensiveinquiry.28

Attorney-Client Privilege: Waiver Types of waiveroVoluntary waiver occurs when a client expressly waives the attorney-client privilege byvoluntarily disclosing privileged communications to a third party who is not the agent ofthe lawyer or client.oSelective waiver. Selective waiver refers to a party’s assertion that its production ofprivileged information to a government entity does not waive privilege. At common law,most courts rejected selective waiver.oInadvertent waiver. Under the Federal Rules of Evidence, an accidental disclosure doesnot waive privilege of the holder of the privilege took reasonable steps to preventdisclosure, and took prompt steps to rectify the error.oImplied waiver / “at –issue” waiver. Party relies on advice of counsel at part of itsargument, e.g., advice of counsel defense.oPartial disclosure, if full disclosure is needed to avoid being misleadingoConveyance to third parties.29

Attorney-Client Privilege: Waiver Financial institutions benefit from a statute that provides that sharingprivileged documents with regulators does not waive privilege. Under 12U.S.C. § 1828(x):submission by any person of any information to any Federal banking agency,State bank supervisor, or foreign banking authority for any purpose in the courseof any supervisory or regulatory process of such agency, supervisor, or authorityshall not be construed as waiving, destroying, or otherwise affecting anyprivilege such person may claim with respect to such information under Federalor State law as to any person or entity other than such agency, supervisor, orauthority. Pros / conso Protects banks, that might have to share privileged materials with theirregulators in any event, from third party discovery. Facilitates lawenforcement objectiveso Encourages regulators to demand privileged materials, fosters “culture ofwaiver”30

The Garner Doctrine Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. Ala. 1970).oCourt recognized that a corporation is not barred from asserting attorney-clientprivilege merely because those demanding information enjoy the status of stockholders.oBut where the corporation is adverse to its stockholders in litigating alleging that it acted“inimically to stockholder interests,” protection of those interests as well as those of thecorporation and of the public require that stockholders be allowed to override privilegebased on showing of good cause.oAlthough Garner arose in shareholder derivative context, it has been applied in otherfiduciary contexts, which obligates the fiduciary to safeguard his or her beneficiaries'interest without obscuring his or her reason from the legitimate inquiries of thebeneficiaries.oMay reach internal investigations report, e.g., re corporate misconduct31

The Garner DoctrineFactors(1) the number of shareholders involved and the percentage of stock they(2) the bona fides of the claimant shareholders;(3) the nature of their claim;(4) the necessity of obtaining the information and its availability from othersources;(5) whether the alleged misconduct of the corporation was criminal, illegal butnot criminal, or of doubtful legality;(6) whether the communication related to past or to prospective actions;(7) whether the communication was of advice concerning the litigation itself;(8) whether the shareholders are "blindly fishing"; and(9) the risk of revealing trade secrets or other confidential information.32

Internal Investigations: Protecting the Privilege Within theInstitution Define the Client, Scope, and GoalsoEstablish the identity of the “client” for purposes of the investigation Audit Committee or a Special Committee of the Board of DirectorsGeneral Counsel’s OfficeInternal AuditoDefine the goal of the investigation and establish lines of authority and supervision. Bewilling to adapt as the investigation progresses.oIdentify the roles of senior and junior in-house lawyers (and compliance personnel, asappropriate) in dealing with investigations.o“Manage the message” upward and downward internally (to management, employees,the board, etc.) and externally (to regulators and the public). Initiate a Litigation HoldoIdentify the universe of documents and employees covered by the holdoCoordinate with the IT department to carry out the holdoProvide notices internally and prepare to explain and guide personneloUpdate/recirculate the hold periodically33

Internal Investigations: Protecting the Privilege Within theInstitution Preserving confidentiality through appropriate attention to and exerciseof the privilege is crucial.oFailure to maintain privilege may leave the company’s most sensitive informationexposed to regulators, litigation opponents, and competitors.oThere are two layers of materials impacted by the privilege: (1) Historical materials and(2) Materials directly connected to the investigation.oPrivilege acts as a double-edged sword. On the one hand, it fosters candor and protectsdocuments. On the other, it prevents an entity from later using documents claimed asprivileged, even if the document may be helpful to the entity’s position. Think ahead.oIs privilege over the investigation itself necessary?oWill privilege limit the use of affirmative defenses later on?oIf you opt for waiver, what documents are swept into the waiver (e.g. What is therelevant “subject matter”)?oHow will a government agency treat the waiver?34

Internal Investigations: Interviewing Current and FormerEmployees Do employees need separate counsel?oReview cooperation provision in employment agreements.oIf a criminal matter is pending, consider whether laws of the jurisdiction prevent or limitcounsel’s ability to conduct the interview.oConsider impact of Yates Memo on company counsel’s interactions with individualofficers and employees.oConsider the appropriateness of “shadow counsel.”oConsult the Model Rules of Professional Responsibility: oRule 1.13: Organization as ClientRule 1.6: Confidentiality of InformationRule 4.3: Dealing with Unrepresented PersonRule 4.4: Respect for Rights of Third PersonsEvaluate the need for a joint defense or common interest agreement.35

Internal Investigations: Interviewing Current and FormerEmployees Preparing for Employee InterviewoWho should conduct the interview? HR, legal, both?oShould outside counsel be involved and/or present?oWhat type of information are you seeking? Do you need a statement for the employee’spersonnel file or regulatory filing (Form U-5)? Are you seeking an affidavit to append toa court pleading? Should the statement be in writing, signed, or attested to by theemployee?oIf in writing, is there a possibility of disclosure to adverse parties in litigation, agovernment investigation, or the public? Wh

privilege. o Banks should contact the regulator that owns the privilege in the event that protected documents are requested in private litigation. o Courts have allowed regulators to intervene to assert the bank examination privilege in response to a discovery request. o See Local 295/Local 851 IBT Employer Grp. Pension Trust, 2012 WL 346658

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