Ooooo — someone’s (still) in trouble.
The office of New York Attorney General Andrew Cuomo upped the ante in its investigation of Bank of America Corp., accusing the bank of using attorney-client privilege to avoid investigators’ questions.
In a letter Tuesday, Cuomo’s office said it is close to deciding which, if any, individuals to charge in the investigation of Charlotte-based Bank of America. Essentially, it says that Bank of America has until Monday to decide whether to answer in greater detail certain questions posed by Cuomo’s office. Otherwise, Cuomo’s office said, it will proceed with the investigation “without giving credit to the advice of counsel defenses.”
Bank of America has either declined to answer questions about or not made appropriate disclosures about its knowledge of bonuses and mounting losses at Merrill Lynch, according to Cuomo’s office, which is investigating billions of dollars of bonuses rushed out to Merrill employees last year. Bank officials have cited attorney-client privilege as their defense, according to the seven-page letter sent to Bank of America’s outside counsel.
Legally, if Bank of America uses “advice of counsel” as its reason for any action, it must waive the attorney-client privilege and tell Cuomo’s office what its lawyers said, according to the letter.
Attorney-client privilege “may not be used as both a sword and a shield,” wrote David Markowitz, the chief of Cuomo’s investor protection bureau.
Bank of America shot back with a tersely worded response, saying it has not asserted the “advice of counsel” defense and has cooperated extensively with Cuomo’s investigation.
Read the rest of this Charlotte.com article here.
This article appears in Sep 8-15, 2009.
