- The Washington Times - Wednesday, October 14, 2009

CHARLOTTE, N.C. | Bank of America Corp., giving up a months-long fight with regulators, plans to turn over documents revealing legal advice it received on its purchase of Merrill Lynch.

In a turnabout, the bank will waive attorney-client privilege that kept it from telling regulators about recommendations it received from outside attorneys over whether to disclose details to shareholders about Merrill’s mounting troubles.

“Given the pressure in multiple inquiries to provide additional insight, we’ve decided to waive it in this matter to get the issue behind us,” Bank of America spokesman Larry DiRita said Tuesday.

“We’ve got nothing to hide and are certain we did everything proper in the context of the Merrill acquisition,” he said.

Charlotte, N.C.-based Bank of America has agreed to waive its attorney-client privilege for investigations by the New York Attorney General’s Office, the Securities and Exchange Commission and a congressional committee, a person familiar with the bank’s agreement said. The person spoke on the condition of anonymity because the information wasn’t publicly disclosed.

The bank’s change of heart, which came almost two weeks after the company announced that CEO Ken Lewis planned to retire by Dec. 31, appeared to be the company’s attempt to end the controversy that followed the Merrill deal.

“The last thing you want is customers to think they are less than honest,” said Michael W. Robinson, senior vice president of Levick Strategic Communications, a D.C. firm that provides crisis-management help for corporations. “What is in those documents is important, but not releasing them was far more damaging to the bank.”

“They couldn’t do it until Lewis said he was going to step down, and they wanted to do it ahead of earnings, and clearly the board wanted to get involved,” Mr. Robinson said, referring to Bank of America’s third-quarter earnings report to be issued Friday. In September, New York Attorney General Andrew M. Cuomo subpoenaed five members of Bank of America’s board as part of his investigation into the Merrill acquisition.

“If you are a board member, you really never want to have a subpoena,” Mr. Robinson said. “They want to move on.”

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