Legal Seminar, Chicago, IL

Attorney Client Privilege

• Common law doctrine • Emerged in English law in the early 1500s, around the same time as the right to trial by jury. American courts imported the Privilege "relatively unchanged," and by 1830 the Privilege had become firmly established in American common law. • “ The purpose of the Privilege is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States , 449 U.S. 383, 389 (1981)

Attorney Client Privilege – Exam Authority

• DOJ and SEC limit their access to privileged information. In 2008, DOJ ended its practice of requesting ““voluntary” privilege waivers as a condition of cooperation credit. • “The staff must respect legitimate assertions of the attorney-client privilege and attorney work product protection. As a matter of public policy, the SEC wants to encourage individuals, corporate officers and employees to consult counsel about the requirements and potential violations of the securities laws.” 2008 SEC Enforcement Manual. • Federal bank regulators and CFPB claim they have the legal authority to override the privilege and compel the institutions that they supervise, or with respect to which they have enforcement authority, to produce information protected by the privilege. • Regulators claim statutory examination authority and the need to obtain privileged material to fulfill the Agencies’ prudential duties.