February 27, 2013 Articles

Banks' Duty to Speak

What "special circumstances" require disclosure of customers' financial information?

by John P. McCahey and Alison M.C. Schrag

As a general rule, banks do not have a duty to divulge to a third party (except as may be required by law to a governmental or regulatory entity) any information concerning the financial affairs of its depositors or borrowers. See Athey Prods. Corp. v. Harris Bank Roselle, 89 F.3d 430, 435 (7th Cir. 1996); First Nat'l Bank & Trust Co. v. Brakken, 468 N.W.2d 633, 637 (N.D. 1991). Indeed, under both common law and various statutes and regulations, a bank may be precluded from disclosing sensitive financial information entrusted to it by customers. See Ritzert Co., Inc. v. United Fid. Bank, FSB, 935 N.E.2d 756, 762 (Ind. Ct. App. 2010) ("That a Bank has an implied contract not to disclose certain financial information pertaining to its depositors has been accepted by American courts and authorities.") (internal citation and quotation marks omitted); Fleming v. Tex. Coastal Bank, 67 S.W.3d 459, 462 (Tex. App. 14th Dist. 2002) (citing state and federal statutes prohibiting or limiting disclosure). Numerous courts, however, have concluded that a bank's obligation to maintain the confidentiality of a customer's financial information may not always be absolute and, in some cases, may be outweighed by a bank's duty of disclosure to a private third party where "special circumstances" exist. See, e.g., Buxcel v. First Fid. Bank, 601 N.W.2d 593, 596–97 (S.D. 1999); R.A. Peck, Inc. v. Liberty Fed. Sav. Bank, 108 N.M. 84, 89–90 (N.M. 1988).

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