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For Banks and Their Advisors, Confidentiality of Communications is No Guarantee

By Colby Adams

In the sometimes complex arrangements between financial institutions and their hired compliance advisors, one ambiguity consistently eludes the legalese of contracts: what can be said in e-mails without landing the firms in hot water? A string of enforcement actions by the New York State Department of Financial Services (NYSDFS) and a recent circuit court decision have underscored the question, which remains unresolved by case law in large part because companies historically have opted to waive attorney-client and work-product protections in the face of investigatory or regulatory scrutiny. The question of when federal agencies have the authority to penetrate attorney-client privilege...

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