2021 Statement of Policy Concerning Outside Counsel Conflicts of Interest

FDIC
Federal Deposit Insurance Corporation
Washington, DC 20429
Office of the General Counsel

September 21, 2021

2021 Policy Statement Concerning Outside Counsel Conflicts of Interest

The attached 2021 Policy Statement Concerning Outside Counsel Conflicts of Interest (“Policy Statement”) sets forth the FDIC’s guidelines with respect to outside counsel conflict of interest matters. The FDIC Legal Division applies and administers the Policy Statement with authority delegated from the General Counsel.

The Policy Statement applies to conflicts of interest discovered by the FDIC, as well as to all requests by FDIC outside counsel for waivers of conflicts of interest submitted to the FDIC Outside Counsel Conflicts Committee.

The “Statement of Policies Concerning Outside Counsel Conflicts of Interest” issued in December 2003 is hereby superseded.

The Policy Statement is effective immediately. 
[approved]
General Counsel 
Attachment

Attachment

September 21, 2021

2021 Policy Statement Concerning Outside Counsel Conflicts of Interest

I. Introduction

This Policy Statement governs the resolution of conflicts of interest in connection with the selection and retention of outside legal counsel utilized by the Federal Deposit Insurance Corporation ("FDIC"). The Policy Statement provides guidance to the FDIC Legal Division (“Legal Division”) in its relations with outside counsel who have been or seek to be retained by the FDIC, and to the FDIC Outside Counsel Conflicts Committee ("Conflicts Committee"). The Policy Statement supersedes the "Statement of Policies Concerning Outside Counsel Conflicts of Interest” issued in December 2003 and all earlier issuances.

The procedures for the Legal Division to submit waivers of outside counsel conflicts pursuant to this Policy Statement are contained in "Outside Counsel Conflict of Interest Procedures," Legal Directive 2021-04-Legal. The procedures for outside counsel to request conflict of interest waivers are contained in the FDIC Outside Counsel Deskbook at Chapter 2.

II. Definitions

1. "Conflict of interest" or "conflict" means a situation in which outside counsel; any management official or affiliated business entity of outside counsel; or outside counsel’s employee, agent, or subcontractor who will perform professional services for the FDIC as a time charger: (1) has personal, business, or financial interests or relationships that would cause a reasonable individual with knowledge of the relevant facts to question their integrity or impartiality; (2) is an adverse party to the FDIC in a lawsuit; (3) submits an offer to acquire an asset from the FDIC and performed services relating to that asset during the past three years, unless the agreement allows for the acquisition; or (4) engages in an activity that would cause the Legal Division to question the integrity of the services provided, are providing or offer to provide, or impairs outside counsel’s independence.¹ A conflict of interest includes any representation or any interest adverse, potentially adverse, or presenting the appearance of being adverse to the FDIC, whether or not it is of a nature sufficient to affect counsel's legal judgment or ability to zealously represent the FDIC. A conflict of interest may arise in litigation or in a non-litigated legal matter.
2. "Conflicts Committee" means the FDIC Outside Counsel Conflicts Committee, which is responsible for resolving outside counsel conflicts of interest.
3. "FDIC" means the Federal Deposit Insurance Corporation in any capacity, whether as conservator, receiver, in its corporate capacity, as organizer of a bridge bank, or as successor to any former Federal entity.
4. "Institution" means any financial institution the deposits of which are or were insured by the FDIC.
5. "Legal Services Agreement" or "LSA" means an executed agreement between the FDIC Legal Division and outside counsel setting forth the terms and conditions of retention of outside counsel.
6. "Outside counsel" means a lawyer, law firm or law firms providing services to the FDIC, its contractors or subcontractors. The term includes all attorneys in a firm, regardless of their status or designation.
7. "Special Issues" mean (a) core issues concerning the validity of the statutes under which the FDIC operates, the competency of the FDIC to act under such statutes, the legitimacy of such conduct, and the rights, status or powers exercised by the FDIC; (b) matters of first impression or fundamental significance as determined by the FDIC Legal Division; or (c) matters of high visibility or sensitivity as determined by the Legal Division.
8. "Substantially related" means having a commonality of law or fact between representation of the FDIC and representation of another client.
9. "Waiver request" means a written request for a waiver by outside counsel to the FDIC Legal Division of an actual or potential conflict of interest or a matter that may present the appearance of a conflict of interest.

III. Policy Objectives

Outside counsel must follow and exhibit the highest ethical standards for lawyers. At a minimum, outside counsel must observe: (1) applicable state bar rules of professional conduct with respect to conflicts of interest and confidentiality; (2) the American Bar Association Model Rules of Professional Conduct ("Model Rules") to the extent that the Model Rules are not contrary to applicable state bar rules; and (3) the requirements of 12 C.F.R. Part 366.

The FDIC seeks to avoid even the appearance of conflicts of interest. The Legal Division requires outside counsel to represent the FDIC with undivided dedication and loyalty. Therefore, the FDIC broadly construes the Policy Statement in favor of reporting and disclosure.

Because it is crucial to the relationship of confidence and trust, the FDIC requires outside counsel to follow all attorney-client confidentiality requirements. The Model Rules provide that the confidentiality principle extends from information disclosed in confidence by the client to information gained from any source regarding the representation and exists both during and after the time of the representation. The Legal Division mandates that outside counsel place special emphasis on: (a) safeguarding the confidentiality of all legal matters; (b) protecting FDIC “Sensitive Information”, as defined in FDIC Directive System Circular 1360.9; and (c) fully complying with the Outside Counsel Deskbook (“Deskbook”) (See Deskbook, Chapter 3, Information Security and Confidentiality for detailed requirements). The FDIC incorporates the Deskbook into all outside counsel LSAs. Outside Counsel must ensure full implementation and enforcement of the policy objectives of this Section III.

IV. Scope

The FDIC requires that any actual, potential, or appearance of a conflict of interest be reported to the Legal Division office or section that signed the LSA and to any FDIC attorney with whom the firm is working at the time the conflict of interest arises. A formal, signed letter of disclosure requesting waiver is required, although it may be submitted by e-mail attachment. There also are specific reporting requirements contained in 12 C.F.R. Part 366, as amended. This Policy Statement and associated directives and Deskbook provisions may impose additional requirements to those of 12 C.F.R. Part 366. The Legal Division may, in its sole discretion, determine whether a conflict exists. After a conflict of interest has been reported by outside counsel or discovered by the Legal Division, outside counsel must immediately notify the Legal Division of any material change in facts.

In most matters, a conflict of interest with the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the National Credit Union Administration, the Consumer Financial Protection Bureau, or the Department of Justice (on matters related to financial institutions) is also a conflict with the FDIC.

Even if an actual conflict, potential conflict, or appearance of a conflict may be too remote to cause a court to order counsel disqualified, the Conflicts Committee or the General Counsel reserves the authority to deny a waiver or take any other corrective action. When in any doubt, outside counsel must disclose the matter and may be required to seek a waiver.

A. Servicers

The FDIC may require the services of various entities to manage and dispose of failed Institutions' assets ("Servicers"). The FDIC may authorize Servicers to utilize outside counsel for purposes of managing and disposing of the FDIC's assets. In these situations, the FDIC may not directly supervise outside counsel, and the degree to which Legal Division attorneys exercise control over the selection of counsel may vary. Because Servicers are FDIC contractors, Servicers and counsel they may retain are subject to the requirements of 12 C.F.R. Part 366 and this Policy Statement.

B. Subcontractors and Legal Support Services Providers

The Legal Division may approve the retention of subcontractors, particularly experts, consultants, or court reporters, for assistance, opinions, or testimony in the development of particular legal matters. These subcontractors may be attorneys or non-attorneys frequently engaged by outside counsel with approval from the Legal Division. When engaging experts, consultants or other subcontractors, outside counsel must be cognizant of the requirements of 12 C.F.R. Part 366. Outside counsel must make representations and certifications regarding any disqualifying conditions (discussed below) or conflicts of interest of their subcontractors who will perform professional services for the FDIC. Outside counsel or other legal contractors must refer disqualifying conditions under Part 366 as well as conflicts of interest of all subcontractors to the Legal Division for consideration by the Conflicts Committee.

The Legal Division also directly retains and pays experts, consultants, court reporters, or other legal support services providers (“LSS Providers”), pursuant to delegations of authority for the provision of legal services. LSS Providers are FDIC contractors who may be attorneys (not hired to provide legal representation) or non-attorneys. As FDIC contractors, the LSS Providers are subject to the requirements of 12 C.F.R. Part 366. The LSS Providers must submit any disqualifying conditions or conflicts of interest to the Legal Division for consideration by the Conflicts Committee.

C. Subsidiaries

Outside counsel representing a subsidiary (regardless of the tier) of a failed Institution, upon discovery of any conflict of interest, must submit a waiver request to the Legal Division for consideration by the Conflicts Committee.

Outside counsel representing an interest adverse, potentially adverse, or appearing to be adverse to such a subsidiary must submit a waiver request to the Legal Division for consideration by the Conflicts Committee.

V. Representational Conflicts Of Interest

Without obtaining a waiver, outside counsel may not engage in a simultaneous representation of the FDIC and another client having an interest adverse, potentially adverse, or even appearing to be adverse to the FDIC. Outside counsel no longer representing the FDIC may not subsequently represent another client against the FDIC in a matter substantially related to any matter in which outside counsel previously represented the FDIC.

Examples of situations in which representational conflicts of interest can arise include, without limitation, those matters in which outside counsel represent any of the following:

(1) A client having an interest adverse to any Institution for which the FDIC acts as conservator or

receiver; (2) An open Institution that subsequently fails or a client having an interest adverse to such an Institution;

(3) A debtor-in-possession, trustee in bankruptcy, or a receiver in any federal or state court or administrative proceeding in which the FDIC has an interest, as a creditor or otherwise;

(4) A creditor in a bankruptcy, receivership, or other litigation proceeding where the FDIC has asserted claims against the same creditor in any proceeding;

(5) An insurance carrier, stockholder or class of stockholders in any action against a director or officer of an Institution;

(6) An Institution regarding regulatory matters or FDIC assistance transactions;

(7) An officer, director, debtor, creditor, note holder or stockholder of any failed or FDIC-assisted Institution in a matter relating to the FDIC; or

(8) A prospective bidder for a troubled or failed Institution, or the assets of such Institution.

VI. Non-Representational Conflicts/Disqualifying Conditions

Outside counsel must seek a waiver if outside counsel has any type of interest adverse, potentially adverse, or appearing to be adverse to the FDIC if, in the sole discretion of the Legal Division, it is of a nature sufficient to affect outside counsel's legal judgment or ability to represent the FDIC zealously. Outside Counsel must always seek a waiver if: (1) outside counsel cannot attest to all of the representations and certifications required by 12 C.F.R. Part 366; (2) outside counsel has an ideological or other commitment that would impair its judgment or ability to represent the interests of the FDIC zealously; (3) the outside counsel (or any of its individual attorneys) is the subject of an ongoing FDIC investigation; (4) the outside counsel (or any of its individual attorneys) has been advised that the FDIC is considering bringing an enforcement action against it; or (5) the FDIC has a claim against outside counsel or any of its individual attorneys.

Examples of situations in which non-representational conflicts of interest can arise include those matters in which outside counsel or any management official, affiliated business entity, or any employee, agent or subcontractor of outside counsel who will perform professional services for the FDIC:

(1) Is an officer, director, or shareholder of an Institution;

(2) Has any outstanding debt, whether performing or in default, owed to any failed or FDIC-assisted Institution (excluding performing debts assumed by an operating Institution);

(3) Is closely related to any person who is employed by the FDIC, is in litigation with the FDIC, or has an ownership or creditor’s interest in any failed or FDIC-assisted Institution;

(4) Served or serves as a trustee in bankruptcy or as a receiver in any federal, state court or administrative proceeding;

(5) Has received a fifteen-day letter from the FDIC indicating the FDIC’s intention to pursue an administrative action against the attorney;

(6) Is currently a party to an administrative enforcement action brought by the FDIC; or

(7) Is currently a party to an administrative or judicial proceeding in which any of them is alleged to have engaged in fraudulent activity, or has been charged with the commission of a felony.

A. Contractor Conflict of Interest Regulations 

Disqualifying Conditions - The Contractor Conflict of Interest Regulations at 12 C.F.R. Part 366 prohibit the hiring of outside counsel who have: (1) been convicted of any felony; (2) been removed from, or prohibited from participating in the affairs of any Institution pursuant to any final enforcement action by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the National Credit Union Administration, or the FDIC; (3) demonstrated a pattern or practice of defalcation; or (4) caused a substantial loss to federal deposit insurance funds. Prior to retention, outside counsel must also agree that they will not allow any employee, agent, or subcontractor who will perform professional services for the FDIC to perform those services without first verifying that such individuals are not disqualified because of the existence of any of the above conditions.

The FDIC will not retain an outside counsel firm or will terminate the LSA of an existing outside counsel firm if the firm or its individual management officials have one or more disqualifying conditions under Part 366. A management official is any partner of the firm or member of the management committee if such a committee exists. In the event of a termination, the Legal Division will promptly direct the orderly transfer of work away from the terminated firm. A disqualifying condition that pertains only to an individual who is not a management official may result in that individual’s prohibition from performing FDIC services or other appropriate actions, in the sole discretion of the Legal Division.

Part 366 also specifies that outside counsel must disclose whether they or their management officials, affiliated business entities, employees, agents, or subcontractors are an adverse party to the FDIC in a lawsuit (further discussed infra), have ever been suspended, excluded, or debarred from contracting with a federal entity, or have ever had their legal services terminated by the FDIC prior to completion of the LSA for reasons that involved issues of conflicts of interest or ethical responsibilities.

B. Ideological or Other Commitment

Representation by outside counsel of borrowers in lawsuits against lenders for alleged improper lending activities may constitute such a commitment to a particular legal position or to particular special interests as to constitute a conflict. Similarly, extensive representation of accountants or insurance companies on bond claims may also constitute such a commitment and conflict.

C. Claims Against Outside Counsel

Investigation Ongoing – During an investigation by the FDIC of malpractice or similar claims against a law firm or attorney, Legal Division staff may recommend the imposition of a moratorium on new assignments to the firm. Once imposed, only the Conflicts Committee, the General Counsel or the Chairman of the FDIC may remove the moratorium.

Lawsuit filed – If the FDIC sues a law firm for malpractice or similar claims, there is a presumption against continued use of the firm. In such case, the FDIC will remove all existing assignments and make no new referrals. Exceptions to this policy are only by action of the Conflicts Committee or the General Counsel on a case-by-case basis.

Even if a suit against an individual attorney or employee does not also give rise to a suit against his or her firm, outside counsel must report the conflict and seek a waiver. When the FDIC files a suit against an individual attorney, the Conflicts Committee may allow the attorney's firm to perform services for the FDIC if appropriate screening mechanisms are established. The Legal Division may, however, in its sole discretion, decline to use the outside counsel firm if the alleged acts of an individual attorney are egregious, the livelihood of the firm is heavily dependent on the individual attorney who is the subject of the claims, or other factors create an appearance of impropriety.

VII. General Waiver Policy

Generally, only the Conflicts Committee or the General Counsel grant or deny requests for waivers of conflicts of interest. The FDIC considers requests for waivers only on a case-by-case basis. The Conflicts Committee will not consider requests for waivers of hypothetical future conflicts of interest or requests for blanket waivers covering multiple prospective, unidentified or hypothetical matters. The General Counsel has reserved that authority. Silence on the part of the FDIC may not be construed as a granted waiver; outside counsel must inquire of the Legal Division if no response has been received for a previously disclosed conflict.

A. Factors Considered in Granting Waiver Requests

When a waiver is requested, the Conflicts Committee will balance the need to have adequate representation of the FDIC with all relevant factors. Factors considered may include but are not limited to:

(1) The extent to which the FDIC's confidentiality may be compromised; (

2) The extent to which outside counsel has been forthright in bringing the existence of the conflict to the FDIC’s attention;

(3) Any appearance of impropriety;

(4) The presence of Special Issues;

(5) The feasibility of screening mechanisms;²

(6) The impact of replacing the outside counsel on current matters;³

(7) The nature and extent of the outside counsel's Institution practice;

(8) The nature and extent of the outside counsel's representation of accountants, attorneys, insurance companies, or directors and officers of failed Institutions;

(9) The extent to which the representation or acts complained of are factually or substantially related to matters currently or previously handled by the firm for the FDIC;

(10) Whether an unfair advantage is gained by the outside counsel's continuing or past representation of the FDIC;

(11) Whether the conflict could affect the ability of outside counsel to zealously represent the FDIC’s interests;

(12) In any pending or proposed litigation against outside counsel, the nature of the conflict;

(13) The magnitude of any loss caused by the outside counsel's representation or conduct;

(14) The extent to which any acts complained of represent actions of an individual member or employee of outside counsel rather than a practice or pattern of behavior found within the firm;

(15) The extent to which the acts complained of draw into question the competence or integrity of outside counsel; or

(16) The extent to which the FDIC is a significant client of the firm.

B. Matrix Guidelines

Conflicts of interest arising from multiple representations are often complex. A matrix illustrating positions generally taken by the Conflicts Committee with respect to recurring representational conflicts is attached as Appendix A. The matrix represents a preliminary indication of the Legal Division’s general disposition with respect to waivers of conflicts arising from representational issues. It should not be regarded as a determination on the question of waiver, which can come only after a close, detailed consideration of a particular situation, with full disclosure, knowledge of relevant facts, and weighing of appropriate factors.

C. Inherited Conflicts

Outside counsel's representations adverse to an open Institution will place the firm in an adversarial position to the FDIC upon the failure of that Institution. The FDIC requires that the failed or FDIC-assisted institution’s outside counsel continue to screen for conflicts, including those that develop due to an Institution’s receivership or conservatorship. Such "inherited" conflicts are more likely to be waived unless FDIC Special Issues are involved. In such case, outside counsel usually will be prohibited from performing work arising out of the particular failed Institution. Even if outside counsel has obtained a waiver from the open Institution, the outside counsel must also seek a waiver from the Conflicts Committee in the event of the Institution’s failure or conservatorship.

VIII. Conditions Commonly Imposed

If the Conflicts Committee grants a waiver of a conflict of interest, the Legal Division may impose various conditions. In general, outside counsel may not handle any matter pertaining to the same Institution out of which the conflict arises. For example, if the Conflicts Committee grants a waiver to outside counsel representing a party suing the FDIC as receiver of a particular Institution, such a waiver will ordinarily include the condition that outside counsel may not handle any matters for the FDIC arising out of that Institution, although it could possibly handle matters arising out of other Institutions.

Depending on the facts of each situation, conditions imposed may also preclude outside counsel from undertaking any new referrals from the FDIC office or section involved, or may require the imposition of screening mechanisms, i.e., precluding all attorneys who are involved in the adverse representation, or are the subject of a claim, from working on or obtaining access to any FDIC matter, as well as a lockout from the FDIC’s Westlaw Legal Research Bank. The Legal Division may also preclude outside counsel from performing any work for the affected FDIC office or section during the pendency of the adverse representation, requiring that any current matters supervised by the particular Legal Division office or section be transferred to other Legal Division counsel. This restriction prevents individual FDIC attorneys from simultaneously dealing with outside counsel as both "friend" and "foe.”

A. Claims Against Outside Counsel

If the Conflicts Committee grants a waiver of a conflict of interest arising from an FDIC claim against outside counsel, outside counsel may, in addition to other conditions imposed, be required to:

(1) Agree not to assert outside counsel’s past or continuing retention by the FDIC as a defense to any claim asserted by the FDIC;

(2) Agree that no information obtained as a result of the retention will be used in defense of any claim asserted by the FDIC;

(3) Agree that disclosure of any information by the FDIC in connection with the continued retention does not constitute a waiver of any otherwise applicable privilege; and

(4) Prohibit any attorney who is the subject of a claim by the FDIC from access to any FDIC client files or records, and from receiving any portion of the fees paid by the FDIC.

B. Settlement

The settlement of a claim or adverse representation brought against the FDIC or by the FDIC may eliminate the existence of a conflict. If so, the former conflict of interest will not automatically bar the continued use of the outside counsel. The FDIC, however, may take the facts and circumstances of the claim into account in assigning any future work. Any conditions imposed in the grant of a conflict waiver generally will no longer be applicable. Upon settlement of the claim or adverse representation, outside counsel must provide written notification to:

FDIC Legal Division
Legal Services & Special Contracts Group
3501 Fairfax Dr., (VS-E-6097) 
Arlington, VA 22226 
LSSCG@fdic.gov

IX. Noncompliance

Failure to make full and timely disclosure of actual or potential conflicts of interest, or of matters that may present the appearance of a conflict, as well as failure to comply with the Policy Statement or FDIC conflicts of interest procedures, are extremely serious matters. Such failures may subject outside counsel to corrective action including, but not limited to: (1) a letter of concern; (2) refusal to waive a conflict; (3) suspension of new referrals; (4) rejection or reduction of fee bills; (5) withdrawal of pending legal matters; (6) termination of legal services; (7) imposition of a bar to application; (8) denial of an LSA; (9) referral to state bar licensing authorities; and, in appropriate cases, (10) civil or criminal referrals.

X. Conclusion

The Policy Statement provides only general guidance. Within the framework provided herein, the Conflicts Committee and the staff of the Legal Division exercise broad discretion. The Policy Statement does not provide outside counsel with any substantive or procedural rights, including the right to a waiver.

Contact Information

The Legal Services & Special Contracts Group at FDIC headquarters has responsibility for the maintenance and distribution of outside counsel conflicts policies, procedures, and other related conflicts information. For information, contact:

FDIC Legal Division Legal Services & Special Contracts Group 
3501 Fairfax Dr. (VS-E-6097) 
Arlington, VA 22226. 
 

The telephone number is (877) 275-3342 (ask for “legal, outside counsel”), or they can be reached by email at: LSSCG@fdic.gov

NOTES:

¹See Contractor Conflict of Interest Regulations at 12 C.F.R. § 366.10. Compare Rule 1.7, 1.8, 1.9, and 1.10 of the Model Rules of Professional Conduct or analogous state rules for lawyers.

²The Conflicts Committee may consider: (i) the size and structural divisions of the law firm; (ii) the likelihood of contact between the affected attorneys(s) responsible for the adverse representation and firm attorneys performing services on behalf of the FDIC; and (iii) the existence and effectiveness of measures to prevent the affected attorney(s) from gaining access to current files or obtaining information from the firm due to its FDIC representation.

³In determining whether to replace outside counsel, the Conflicts Committee may consider: (i) availability of other experienced counsel in the geographic area; (ii) pending deadlines and the feasibility of replacement counsel's becoming sufficiently knowledgeable to effectively pursue the matter; (iii) the cost of developing applicable expertise in replacement counsel; and (iv) other factors or circumstances deemed relevant in the sole discretion of the Legal Division.

Notes on Appendix A:

1. Generally, the FDIC disfavors waivers of Professional Liability, Special Issues, or Negotiated Transactions matters if the firm seeking the waiver is working on the same type of matters for an adverse party. The FDIC generally permits outside counsel to perform Routine Closed Institution work against the FDIC (see Note 5, below), but not out of the same Institution or the same FDIC office or section. Also, in order to avoid even an appearance of impropriety and to ensure the integrity of the bidding process, a firm that has represented an Institution prior to its receivership will not be permitted to bid or represent a bidder on that Institution or its assets.

2. The sign "+" means the Conflicts Committee is more likely than in the case of the sign "-" to waive a conflict. This assumes that the conflict does not (i) arise from the same transaction, (ii) to the extent that it can be determined at the time of the waiver request, involve litigation in the same court, or (iii) arise within the same conservatorship, receivership or Legal Division office or section primarily responsible for the matter.

3. The matrix addresses only conflicts that may arise out of multiple representations by outside counsel. It does not address conflicts that may arise out of relationships or adverse interests separate and apart from representations, nor does it address the issue of confidentiality. A waiver of a conflict in connection with a multiple representation is never an authorization to breach FDIC confidentiality.

4. "Professional Liability" refers to claims arising out of conduct by those providing professional services, advice, or counsel to Institutions including, but not limited to, directors, officers, attorneys, accountants, appraisers, securities or commodities brokers, as well as fidelity bond and insurance issues involved in those claims.

5. "Routine Closed Institution" refers to asset collections, defensive matters, deposit insurance cases, and representation of asset bidders, whether litigated or non-litigated, where the issues raised do not involve Special Issues.

6. "Negotiated Transactions" refers to those resolution transactions necessary to resolve the status of failing, failed or FDIC-assisted Institutions where substantial negotiations are required to reach and document an agreement.

7. "Employment" refers to matters involving disputes between the FDIC and its employees.

8. "Enforcement" refers to matters involving FDIC administrative enforcement powers including, but not limited to, cease-and-desist, prompt corrective action, termination of insurance, suspension or removal and prohibition of individuals, and the assessment of civil money penalty proceedings.

9. "General FDIC Corporate & Regulations" refers to matters involving the FDIC as a corporation and the FDIC as a regulatory agency or deposit insurer including, but not limited to, the scope of corporate powers, the applicability of various statutes and regulations to day-to-day operations, and the applicability of various statutes and regulations to Institutions' operations. Generally, undertaking an adverse representation involving General FDIC Corporate and Regulations is disfavored if outside counsel represents the FDIC on Professional Liability matters. The FDIC reviews each matter, however, on a case-by-case basis.

10. In the event that outside counsel is requested to represent contractors in disputes regarding FDIC contracts, or in administrative proceedings involving the proposed suspension or exclusion of contractors, the Conflicts Committee will consider such waiver requests on a case-by-case basis. The Conflicts Committee will generally only favor such requests where outside counsel are representing the FDIC in Routine Closed Institution matters. The Legal Division does not consider such matters to be General FDIC Corporate & Regulations matters.

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