Yesterday, the New York AG’s office advised Bank of America’s outside counsel in a letter that:
We are at the stage in our investigation in which we are making charging decisions with respect to Bank of America and its executives. However, Bank of America’s indiscriminate invocation of the 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.
Today, BofA’s counsel shot back with a letter of their own. Lewis Liman of Cleary Gottlieb wrote that “we were extremely surprised and disappointed by the [AG’s] letter” and that “we have repeatedly asked to meet with your Office to explain the relevant facts with respect to each of the matters the letter states are under investigation. Each of those requests has been rejected.”
Liman’s letter goes on to argue, among other things, that the NY AG’s “basic premise” is wrong:
Bank of America has not put at issue the subject matter of any advice of counsel. Nor has Bank of America offered reliance on legal advice as a justification for its disclosures…. Because Bank of America did not violate the law, it has not offered reliance on legal advice as a defense.