Contract analysis

I. Purpose of This Memorandum Calderwood & Harkness LLP ("C&H" or the "Firm") has been retained by Belmont Ridge Bank National Association ("BRB" or the "Company") to represent the Company — the entity — in connection with a formal investigation by the U.S. Securities and Exchange Commission ("SEC"), Division of Enforcement, File No. HO-14287 (the "Investigation"). The engagement was formalized pursuant to an engagem

II. Background — The Engagement and Client Identity A. Client Identity The client in this matter is Belmont Ridge Bank National Association, a national banking association organized and existing under the laws of the United States pursuant to Office of the Comptroller of the Currency ("OCC") Charter No. 24891. BRB is headquartered at 200 Park Avenue South, 38th Floor, New York, New York 10003. The Company is publicly

III. Legal Framework — *Upjohn v. United States* and Progeny A. The *Upjohn* Doctrine The foundational legal authority governing the protocols set forth in this memorandum is the Supreme Court's decision in Upjohn Co. v. United States, 449 U.S. 383 (1981). In Upjohn, the Court held that the attorney-client privilege applies to communications between corporate counsel and employees of the corporation, regardless of th

1. The privilege belongs to the corporation, not the individual employee. This is the central principle that animates the Upjohn warning. When an employee communicates with corporate counsel in the employee's capacity as a corporate agent, the privilege that attaches to that communication is the corporation's privilege. The corporation — acting through its management and, ultimately, its Board of Directors — holds th

2. The corporation's counsel is the corporation's counsel. Corporate counsel owes duties of loyalty and confidentiality to the corporate entity. While counsel may interact extensively with individual employees in the course of gathering facts and providing legal advice, those interactions do not create an attorney-client relationship with the individual unless the individual reasonably believes, and the lawyer fails

3. The duty to clarify. Because the corporate attorney-client relationship can be confusing to lay witnesses — particularly employees who may naturally assume that a lawyer investigating company matters is "on their side" — counsel has an affirmative obligation to clarify the nature and scope of the representation. This obligation is reflected in Model Rule 1.13(f) of the ABA Model Rules of Professional Conduct and R

IV. Mandatory Upjohn Warning — Substance and Delivery Protocol A. When the Warning Must Be Given The Upjohn warning must be given at the beginning of every substantive interview or meeting with any current or former BRB employee, officer, or director conducted in connection with Matter No. SC-MAT-2023-4172. For purposes of this memorandum, the term "substantive" is defined broadly to encompass any discussion related

1. First interview. The Upjohn warning must be delivered orally at the very beginning of the interview, before any substantive questions are asked. The interviewee must be given an opportunity to ask questions about the warning, and the interviewing attorney must ensure that the interviewee understands each of the four core points (set forth in Section IV.D below). A written acknowledgment form (Exhibit A) must be si

2. Subsequent interviews. The warning must be given again at the beginning of each subsequent interview session, even if the same interviewee has already received the warning in a prior session. Each session requires a fresh oral advisement. In subsequent sessions, a signed acknowledgment form is not required (the signed form from the first session should be referenced), but the interviewee's oral acknowledgment of u

3. Format-agnostic requirement. The warning applies regardless of the format or medium of the interview. Whether the interview is conducted in person at C&H's offices, at BRB's offices, by telephone, or by video conference (e.g., Calderon Software, Northgate Data Systems), the full Upjohn warning must be delivered.

4. Informal contacts. If an C&H attorney has an informal or unplanned conversation with a BRB employee that touches upon matters relevant to the Investigation, the attorney should deliver the Upjohn warning as promptly as possible within that conversation. If circumstances do not permit a full advisement (e.g., a brief hallway exchange), the attorney should avoid eliciting substantive information and should schedule

V. Special Considerations for Specific Categories of Witnesses A. Senior Officers — CEO (Marcus R. Ellingham), CFO (Patricia Navarrete), CLO (Derek Sung) As senior management of the Company, these individuals act on behalf of and direct the affairs of BRB. In many respects, they embody the corporate client: they direct the Company's legal strategy, approve privilege waivers, and oversee the Company's cooperation with

VI. Privilege Coordination with Third Parties A. Whitfield Keane LLP (Independent Auditor) and Hargrove & Millstein LLP (Auditor's Counsel) As noted in Section II.D above, C&H does not represent WK or any of its partners or employees. WK has retained its own counsel, H&M, to represent WK's interests in connection with the Investigation. The interests of BRB and WK may overlap in certain respects — for example, both p

VII. Procedures for Handling Potential Conflicts A. Identification of Conflicts Throughout the Investigation, all C&H team members must remain vigilant for situations in which the interests of an individual BRB officer, director, or employee may diverge from those of the Company. The duty to monitor for conflicts is ongoing and applies at every stage of the engagement, from initial document review through witness int

1. Immediate notification. The attorney who identifies the potential conflict must immediately notify Victoria Chambers. If Chambers is unavailable, notification should be directed to Howard Quinn.

2. Assessment and consultation. Chambers will assess the nature and severity of the potential conflict and will consult with Derek Sung (BRB General Counsel) and, if the circumstances warrant, with Gwendolyn Prescott (Audit Committee Chair) to determine the appropriate course of action. The determination of how to address a conflict is ultimately a decision for the Company, guided by C&H's legal advice and the applic

3. Potential courses of action. Depending on the nature and severity of the conflict, appropriate responses may include one or more of the following: (a) Advising the individual to retain separate personal counsel and providing the individual with a reasonable opportunity to do so before any further interviews or testimony; (b) Adjusting the scope of C&H's representation to ensure that C&H does not undertake any dual

4. Suspension of interviews. Under no circumstances should C&H continue to interview a witness after a clear conflict of interest has been identified without first resolving the conflict issue through the procedures described above. If a conflict emerges during the course of an interview, the interviewing attorney should pause the interview, explain to the witness that a conflict issue may exist, and advise the witne

VIII. SEC Testimony — Additional Protocols A. Pre-Testimony Preparation Sessions When BRB employees receive subpoenas for investigative testimony before the SEC Division of Enforcement Staff, C&H will conduct preparation sessions with each witness prior to the testimony date. These preparation sessions are a standard and essential part of the representation and serve the dual purpose of (a) familiarizing the witness

IX. Recordkeeping and File Management Proper recordkeeping is essential to the integrity of the Upjohn protocols and to the preservation of the attorney-client privilege and work-product protections in this matter. All documents generated in connection with the protocols described in this memorandum should be maintained in the matter file under Matter No. SC-MAT-2023-4172, in accordance with the following organizatio

X. Questions and Points of Contact Any questions regarding the application of the protocols set forth in this memorandum should be directed to the following individuals: Victoria Chambers, Partner Calderwood & Harkness LLP 425 Lexington Avenue, 30th Floor New York, NY 10017 Telephone: (212) 555-7200 Email: vchambers@calderwoodharkness.com Jasmine Thornton, Lead Associate Calderwood & Harkness LLP 425 Lexington Avenue

1. Calderwood & Harkness LLP represents Belmont Ridge Bank National Association (the "Company") in connection with an investigation by the U.S. Securities and Exchange Commission, Division of Enforcement, File No. HO-14287. We do not represent you individually or personally.

2. This conversation is protected by the attorney-client privilege. However, the privilege belongs to the Company, not to you. The Company may choose to disclose the contents of this conversation to third parties, including the SEC, government regulators, or others, without your permission.

3. You have the right to retain your own personal attorney at your own expense. If you believe at any time that your personal interests may differ from those of the Company, we encourage you to consult with your own counsel.

4. We ask that you keep the substance of this interview confidential and not discuss it with other Company employees, officers, directors, or third parties unless directed otherwise by the Company's General Counsel, Derek Sung, or by Calderwood & Harkness LLP. ACKNOWLEDGMENT. I have read and understand the foregoing. I understand that Calderwood & Harkness LLP represents Belmont Ridge Bank National Association and no