“Since 2008, the banking industry has been under particularly close scrutiny by regulators and law enforcement …. As part of recent enforcement actions in other industries, law enforcement and regulators have taken actions against the in-house counsel personally,” writes Colleen M. Murphy, an attorneys in Goldberg Segalla’s Global Insurance Services and Banking and Financial Institutions Practice Groups, with co-author Aaron J. Aisen.
“An effective way to mitigate the risk to in-house counsel is to retain outside counsel to deal with subpoenas and investigations, and work with in-house counsel on responses to formal and even some informal government inquiries. Outside counsel can also assist in sensitive areas where the attorney-client privilege might be an issue. This offers an independent voice to the bank and can provide cover for the in-house counsel whose independence and status as an attorney might be later questioned.”
Here in Part I of their three-part series for Inside Counsel on the effective use of outside counsel, Colleen and Aaron examine the challenges that in-house banking counsel face that can pose significant risk, cases in which in-house counsel were targeted, and ways outside counsel can mitigate these risks.