The legal issue of attorney-client privilege is heating up as Bank of America (BAC) is turning some documents over to a Congressional committee that wants details of the bank’s buyout of Merrill Lynch. House Oversight and Government Reform Committee Chairman Adolphus Towns has said that B of A cannot hide its actions from Congress by saying that they are protected by lawyer-client privilege.
Bank of America may feel that is has to cooperate with Congress to avoid another expensive investigation and public scorn for its protests that some of its documents should remains secret. But, the firm may eventually have to go to federal court to see if it can protect a long-held right of the confidential communications between lawyers and their clients.
B of A’s hand may be forced because if Congress is successful in bullying the bank it opens the door to similar requests to break privilege by state attorneys general like Andrew Cuomo and even shareholders who may file class action suits which would rely on getting access to legal conversions at the bank for their success. That, in turn, would change the landscape of which information can be subpoenaed and which cannot. Confidential communications with lawyers could become a thing of the past.
The B of A struggle to keep certain matters to itself it not over. The federal courts may be anxious to address what they believe is overreaching behavior by Congress. It is a battle that will set the tone for government investigations for decades to come.
Douglas A. McIntyre
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