Bank Regulators’ Legal Authority to Compel the Production of Material That Is Protected by Attorney-Client Privilege: Banking Regulators’ Examination Authority Does Not Override Attorney-Client Privilege

Sullivan & Cromwell LLP - May 16, 2018

Notwithstanding the venerable status of the attorney-client privilege and the important purposes it serves, the federal bank regulators and the Consumer Financial Protection Bureau have taken the position that they have the legal authority to override the privilege and compel supervised institutions to produce information protected by the privilege. Seven law firms, including Sullivan & Cromwell LLP, have prepared a memorandum analyzing the regulators’ position. This memorandum, which was shared with the relevant regulators, analyzes the regulators’ position and explains why it is not legally sustainable.