December 2016
The federal Consumer Financial Protection Board (CFPB) has proposed new regulations and changes to its existing regulations that expand the agency’s ability to disclose information to others, potentially compromising the attorney-client privilege. Current federal law provides non-waiver protection of attorney-client privileged communications and materials that are provided to prudential regulators (FDIC, OCC, FRB) as well as the CFPB, and likewise extends the non-waiver protection when those federal agencies share such information with each other.

The CFPB has recently proposed new regulations and changes to its existing regulations that appear on their face to exceed what federal law currently protects in terms of disclosure of attorney-client materials. The proposed changes could: 
  • Discourage regulated entities from voluntarily submitting requested information due to a possible lack of control over (and knowledge of) to whom the confidential information may be provided. 
  • Lead to more conflict between regulators and financial institutions who are frequently asked to provide materials that are protected by the attorney-client privilege. 
  • Arguably exceed the current statutory authorization that Congress has provided to ensure that privileged materials are protected. If the proposed disclosure rules are not backed by statutory authorities and institutions do share information with regulators and the CFPB, then doing so may put the institution at risk of losing its privilege claims.

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