Evidence
N.Y. AG Calls Bank’s Privilege Claims ‘Indiscriminate,’ Seeks Waiver
Posted Sep 8, 2009, 03:45 pm CST
By Martha Neil
Stymied in his efforts to determine whether the Bank of America and executives complied with disclosure requirements concerning its merger with Merrill Lynch by what he terms an "indiscriminate" use of attorney-client privilege, the New York attorney general is calling for the bank to make its inside and outside counsel available for interviews with his office.
In a letter to Lewis Liman of Cleary Gottlieb Steen & Hamilton, Attorney General Andrew Cuomo writes that “attorney-client privilege is hindering this 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," reports the DealBook blog of the New York Times.
The article also includes a link to the letter Cuomo sent to the law firm.
In response, the bank tells the Times in a written statement that its proxy materials and disclosures complied with the law and that it has cooperated extensively with Cuomo's investigation and produced hundreds of thousands of pages of documents.
Because the bank says it has not—contrary to what Cuomo states or implies—relied on an advice-of-counsel defense, according to the attorney general's letter and the bank's statement, the bank says it is not required to make its lawyers available to the attorney general for interviews.
Additional coverage:
Bloomberg: "Cuomo Says Bank of America Hindering Merrill-Acquisition Probe"
Reuters: "NY's Cuomo may charge BofA execs over Merrill"
Wall Street Journal (sub. req.): "Cuomo: BofA Must Reveal Advice if Defense Blames Lawyers"
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