Andrew Cuomo’s had enough with the Bank of America-Merrill endless passing the buck game and is giving an ultimatum to BofA: Let us question your attorneys or we will just charge you with fraud.
Cuomo said in a letter today to the bank’s outside counsel that the assertion of attorney-client privilege is hindering his office’s ability to make fair and fully informed decisions as to what charges, if any, to bring and whether individual Bank of America officers should be charged.
“We cannot simply accept bank of America’s officers naked assertions that they sought and relied on advice of counsel in good faith, and that, therefore, they should not be charged,” Cuomo wrote.
And enough with using the privilege as both a “sword and a shield.” Basically, what Bank of America has been doing is claiming that it isn’t to blame for not disclosing facts about Merrill’s losses to shareholders because it was advised against disclosure by its lawyers. But then it says it doesn’t have to reveal the advice of its lawyers because they are protected by attorney-client privilege.
Cuomo gave the bank until September 14 to reconsider its decision to prevent his office of adequately probing into the content of its lawyers advice.
“Otherwise we will proceed with our charging deciions without giving credit to the advice of counsel defenses that Bank of America has not permitted us to test,” Cuomo wrote.
On the upside, this September 14 deadline could give Dick Fuld some breathing space. We’ll all pay attention to the Bank of America case instead of the anniversary of the collapse of Lehman Brothers.
Here’s the letter: