As we approach the middle of 2022, the SEC’s lawsuit against Ripple is still dragging on – and it seems that “privilege” is still very much the theme of the season. Now, the SEC has filed another document to support its earlier argument in favor of shielding “internal SEC documents” which are related to the 2018 speech delivered by the SEC’s former Director of the Division of Corporation Finance, William Hinman.
Rip-ple them a new one?
According to a filing dated 18 May 2022, the SEC claimed that the speech was developed by Hinman as an SEC official and not Hinman as a private individual. Additionally, Hinman had consulted with attorneys in order to develop the said speech and the SEC wanted attorney-client privilege to protect speech drafts and other documents related to the speech.
The filing provided by former federal prosecutor James K. Filan, stated,
“The attorney-client privilege protects the Speech drafts reflecting legal advice that Director Hinman sought and that attorneys in Corp Fin and other offices provided, as well as portions of final drafts and emails transmitting legal advice regarding the content of the Speech.”
But didn’t the court previously rule that the speech contained Hinman’s “personal views?” The SEC filing said,
“Even if it contains personal views, Director Hinman did not give the Speech in his personal capacity—the Speech would bear no relevance to Defendants’ defenses if it had not been given by a senior SEC employee.”
Adding to that, the SEC’s filing pointed out occasions during the depositions when Ripple officials were advised of their own right to attorney-client privilege.
The SEC filing further noted,
“While the Court has ruled the Speech reflected Director Hinman’s “personal views,” as opposed to official agency policy, it has never held that Director Hinman was acting only in his “personal capacity.” “
Finally, the SEC stressed that Hinman spoke as a “government official.”
Check your privilege
In a filing dated 13 May, Ripple replied to the SEC’s earlier letter from 29 April, where the government agency insisted that documents related to the Hinman speech were protected by privilege. Ripple’s response had noted that while Hinman could receive “privileged legal advice” as a government official,
“…communications about the substance of his personal remarks are not within the scope of any such attorney-client relationship.”
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