DEC 21, 2012

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Compliance Matters

Access to Privileged Attorney-Client Materials Shows that the CFPB’s Reach Is Growing

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Last week the Consumer Financial Protection Bureau got an official endorsement and express authority from congress enabling it to obtain privileged attorney-client materials in connection with any audits that may be done. This is somewhat troubling given that the Consumer Financial Protection Bureau is the same agency that, as a matter of routine practice, already has enforcement attorneys present at routine audits.

Now these same attorneys will be reviewing your privileged communications with counsel.

Adding to this is the fact that, unlike the Federal Deposit Insurance Corp.—which has similar investigatory rights—the Consumer Financial Protection Bureau has a mandate to refer legal violations to other federal agencies.

Hence, a document which shows a tax violation—for example—could potentially lead to an Internal Revenue Service investigation, all flowing from the Consumer Financial Protection Bureau's access obtained in a routine audit.

Financial institutions should, more than ever, first talk to counsel before placing any of their communications in written form.  Of course, this especially includes communicating through electronic mail messages.

It appears that the new Consumer Financial Protection Bureau has made the old-fashioned telephone call the best (and sometimes, the only) way you should discuss sensitive matters with legal counsel.

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