Compliance Blog

NCUA recently release NCUA Legal Opinion Letter 08-1032.   The letter notes that NCUA examiners will have access to credit union records that are protected by an attorney-client privilege. 

Our position regarding access to credit union records has not changed. Pursuant to the FCUA and NCUA’s Rules and Regulations, NCUA examiners are permitted complete access to the books and records of a credit union. See 12 U.S.C. §1756; 1784; 12 C.F.R. §741.1. Our opinion letter points out that NCUA previously permitted credit unions to withhold records covered by the attorney-client privilege because we recognized that courts might treat release of such privileged information to NCUA as a waiver of the privilege as to a third party. That possibility has been eliminated because of the addition of Section 205(j) to the FCUA. Accordingly, NCUA will no longer permit credit unions to withhold privileged documents because of an assertion that producing them will waive a privilege as to a third party.

This does not mean that it is no longer possible for a credit union to assert the attorney-client privilege against NCUA. However, our experience has been that the waiver of privilege as to a third party was almost always the reason for asserting privilege in the past. That possibility has been eliminated by Section 205(j).

As always, we suggest that you read the entire letter to get a complete picture of the opinion letter.

***

On Friday, the OCC released OCC Bulletin 2008-30.  It is a fantastic, concise SCRA resource.    Here are some other SCRA-related blog posts.