Yesterday’s meeting between Bank of America and the House Committee on Oversight and Government Reform resulted in a victory for Bank of America – and for attorney-client privilege.
Though Committee chair Rep. Edolphus Towns (pictured) noted last week that Congress could insist the bank waive attorney-client privilege and turn over documents containing communications with counsel, BofA missed a deadline to turn over documents on Monday and instead held out for a private meeting with Towns yesterday. Congress is requesting documents as part of its investigation into the bank’s merger with Merrill Lynch.
Towns announced after the meeting that the bank would prepare a privilege log providing information about documents withheld.
So basically BofA has to do nothing more than it would have to do in normal litigation and has preserved privilege as it continues to deal with the various attacks on the merger, including actions by the SEC, the New York Attorney General and shareholders.
Congress of course has the right to subpoena the documents later, but the agreement takes attorney-client privilege off the table for a while. As we said early this week, asking BofA to waive privilege could set disastrous precedent.
We do, however, feel for the associates who have to prepare the privilege log. No doubt the descriptions of the documents withheld will come under serious scrutiny.
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