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May 01, 2012

ABA opposes CFPB proposed rule on privileged information

The ABA last month urged the Consumer Financial Protection Bureau (CFPB) to withdraw a proposed rule that the association believes would improperly pressure both bank- and non-bank-supervised entities to submit privileged information to the CFPB.

In addition, the association maintains that the proposed rule would fail to achieve its stated objective of protecting the privileged status of information once it is submitted to the bureau in connection with the bureau’s supervisory and regulatory processes.

ABA President Wm. T (Bill) Robinson III expressed ABA concerns that these and other key aspects of the proposed rule could undermine and weaken, rather than safeguard, fundamental attorney-client privilege and work product protection.

In his April 12 comment letter to Monica Jackson in the CFPB Office of the Executive Secretary, Robinson said the bureau should encourage Congress to promptly enact legislation such as H.R. 4014, a bill that passed by the House March 26. The legislation, which the ABA endorsed in February, would create a single consistent standard for the treatment of privileged information submitted to all federal agencies that supervise banks, including the CFPB. Unlike the proposed rule, the legislation would preserve the privileged status of materials submitted to the bureau, he emphasized.

Robinson also questioned language in the proposed rule stating that the bureau has the legal authority to force both depository and non-depository entities it supervises to produce information protected by the attorney-client privilege and the work project doctrine. Contrary to the CFPB’s position, Robinson said that the Dodd-Frank Wall Street Reform and Consumer Protection Act, which established the CFPB, does not grant the bureau the authority to compel supervised entities to produce privileged or work product protected materials.

Because the proposed rule is based in part on the CFPB’s unfounded assertion that it has authority to require production of privileged materials, Robinson explained, the proposed rule may not protect the privileges status of that information or prevent third parties from accessing it.

The ABA also expressed serious concerns over the effect the proposed rule could have on the relationship between supervised entities and their lawyers.

“By pressuring supervised entities to submit privileged and work product materials, the bureau’s policy risks chilling and seriously undermining the confidential lawyer-client relationship,” Robinson wrote. He added that any policy to regularly seek the production of privileged or work product protected materials and information could discourage supervised entities from seeking and obtaining the expert legal representation that they may need, thereby interfering in a substantial way with the fundamental right to counsel.

He also warned that the adoption of the proposed rule could cause, rather than discourage, litigation over the bureau’s alleged authority to compel production of privileged material.

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