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ABA Challenges CFPB’s Authority to Compel Production of Privileged Information

ABA Challenges CFPB’s Authority to Compel Production of Privileged Information

By Gabriel McIntosh

WASHINGTON, D.C., April 17, 2012 — The American Bar Association has sent a comment letter to the Consumer Financial Protection Bureau, objecting to language in its proposed rule on the “Confidential Treatment of Privileged Information” asserting that the CFPB can force all bank and non-bank supervised entities to submit privileged information to the bureau during examinations.

In its letter to Monica Jackson at the Office of the Executive Secretary of the CFPB, ABA President Wm. T. (Bill) Robinson III expressed serious concerns over the bureau’s policy of requiring or pressuring banks and other companies it supervises to produce information protected by the attorney-client privilege and the work product doctrine.  The bureau’s policy stated in the proposed rule, Robinson explained, would undermine these fundamental legal protections, chill the confidential lawyer-client relationship and interfere with the clients’ right to counsel.

The ABA’s letter also expressed concerns that, because the CFPB lacks legal authority to force supervised entities to submit privileged information as part of the bureau’s supervisory or regulatory processes, the CFPB’s proposed rule would not achieve its stated purpose of protecting the privileged status of information that it receives from being waived as to third parties.  Therefore, the ABA urged the bureau to withdraw the proposed rule and to encourage Congress to promptly enact legislation supported by the ABA and already passed by the House of Representatives—H.R. 4014—as the best means to address and resolve the problem of third-party privilege waiver.

The association’s comments can be found online.

With nearly 400,000 members, the American Bar Association is the world’s largest voluntary professional membership organization. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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