Banking Regulators’ Examination Authority
Does Not Override Attorney-Client Privilege
May 16, 2018
MEMORANDUM1
RE:
Bank Regulators' Legal Authority to Compel the Production
of Material That Is Protected by Attorney-Client Privilege
I. Introduction
The attorney-client privilege (the "Privilege") is deeply enshrined in the common
law.
2
In protecting the confidentiality of communications between lawyers and their
clients, the Privilege both bars the admission of such communications as evidence in
legal proceedings and insulates the communications from compelled disclosure by
government authorities. Accordingly, absent an explicit exception, neither courts nor
government authorities may require a client or the client's lawyer to produce or reveal
privileged information.
The fundamental importance of the Privilege to our legal system has been
recognized time and again by the Supreme Court, which has rejected attempts to abrogate
1
This memorandum was prepared with the participation of the Staff of The Clearing
House Association and reflects the views of the seven law firms whose names appear in
the caption and of The Clearing House. It is not intended to reflect the views of any other
client of the seven law firms. This memorandum should not be considered or relied upon
as legal advice.
2
The Privilege emerged in English law in the early 1500s, around the same time as the
right to trial by jury. Emergence of Privileges, The New Wigmore: A Treatise on
Evidence: Evidentiary Privileges § 2.2 (Aspen Publishers) [hereinafter, "New
Wigmore"]; see also 8 J. Wigmore, Evidence § 2290 (J. McNaughton ed. 1961).
American courts imported the Privilege "relatively unchanged," and by 1830 the
Privilege had become firmly established in American common law. Paul R. Rice,
Attorney-Client Privilege in the United States § 1:12, at 38–39 (2d ed. 1999); New
Wigmore, supra, § 2.5 (citing Geoffrey C. Hazard, Jr., An Historical Perspective on the
Attorney-Client Privilege, 66 Cal. L. Rev. 1061, 1083 (1978)).
