Rodge Cohen Co-authors Law360 Article on Why Banks Should Not Be Compelled To Produce Privileged Info

January 2, 2019

Regulatory agencies have taken the position that banks, unlike all other companies and individuals, do not enjoy the attorney-client privilege. This is contrary to law and sound public policy, say Rodge Cohen and Simpson Thacher & Bartlett’s Stephen Cutler in an article published on January 2 in Law360 titled “Banks Should Not Be Compelled To Produce Privileged Info.”

Bank regulators maintain that their examination authority nullifies banks’ attorney-client privilege. This denies banks the ability to consult with lawyers without fear that the government or anyone else will effectively be able to listen in on their conversations.

The co-authors say that, although banking regulators’ supervisory mandate is critical, that mission should be accomplished through the disclosure of relevant facts, not the content of discussions between a bank and its attorneys.

In May 2018, seven law firms, including S&C, published a memorandum explaining why banking regulators’ examination authority does not override the attorney-client privilege.