Life of an In-House Counsel. . . In a Heavily Regulated Field

By: Brandy Nickoloff*| Staff Writer 

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The panel for the “Life of an In-House Counsel” session at this year’s Banking Law Symposium featured practitioners from Bank of America and Wells Fargo. The panelists wanted the session to be interactive and encouraged the audience to ask questions throughout. That tactic did allow for the other attorneys in the room not only to ask questions but to offer sympathy for the role the panelists have daily. In their role as in-house attorneys, truly they have become counselors on how to comply with the law rather than advocating for their institutions’ interest regarding the law. As one panelist put it, sometimes the job requires convincing your client to “just get to the business of complying.” This angle comes about because clients do not understand the different rules or regulating bodies. Requirements vary from one department of the bank to the next. For example, one panelist who works within the cyber security and information security side of banking finds regulations stemming from The Department of Homeland Security and the FBI as a priority over common banking regulators.

Needless to say, clients pick up on the gaps between the legislative intent behind statutes that do not translate into the regulations imposed by the administrative law body assigned to the task. Further, these regulations are then distilled into internal checklists, policies, and procedures that often are very disjointed from the legislature’s original inception. Sometimes this can be a simple communication issue as regulators often communicate first with the risk and compliance division of banks before the legal and business side. This minimizes the legal counsels’ ability to guide the business procedures and allocate risks in the best way possible for both the bank and its clients.

This legal role however is not without the opportunity to make change. While regulations can often provide frustrating restrictions it also provides a platform for collaboration and creative solutions. Part of the solutions come from banks being proactive in regulating themselves. This self-accountability is a way for in-house counsel to help its institution issue spot, which in turn creates information to be shared with regulators. This “collaborative education” that one panelist referred to creates an exciting and meaningful system in which regulators and in-house counsel can work together to achieve more for all parties. There are two sides to every coin, one example being encryption. While regulators push for this protection – banks have found that too much encryption can actually make it difficult to determine if misconduct has taken place because even the bank cannot access and secure the information in jeopardy. Opening the floor for conversation and collaboration regarding topics such as this breaks down the informational barriers that cause the frustrating gaps that so many encounter.

All in all, the daily lives of these attorneys are not without a unique role requiring shrewd maneuvering through challenging restrictions. Even so, each finished their panel appearance by encouraging law students to consider the banking industry for a future career. Whether or not we practice in the banking industry, we are all affected by it, and for that reason we are grateful to the panelists for making the banking world better.

Brandy Nickoloff is a second year law student at Wake Forest University School of Law. She holds an undergraduate degree in Business Management from Grove City College, a small liberal arts college located one hour north of her hometown of Pittsburgh, PA. Upon graduation she plans to pursue a career in transactional law.