I need a tiebreaker. I just sent this question to two different paid compliance consultants, and received two completely different answers. What do you think?

I just found out that on occasion we are matching competing bank's rates to get the customer to bank with us. For example, we currently have a money market account that earns 5% interest for the first 6 months and after the initial period it's a tiering method A account. But, personal bankers have the authority to give the customer a 5.10% interest rate if they need to, and of course management can basically do whatever they want, and sometimes do. Our Reg DD Truth in Savings Disclosure (TISD) accurately reflects the APY for this account if the 5% interest rate is given. When I found out that the personal bankers could be giving a 5.10% interest rate, I created a TISD for them to use when providing the 5.10% rate. They are to give it in place of the 5.0% disclosure, which works fine if a customer opens their account in person and they sign the paperwork in person because they are provided the disclosures in paper form, and the personal banker can easily swap out the 5.00% disclosure that the system prints and replace it with the 5.10% disclosure. Of course, I don't like this because there is too much room for human error, but it works, I guess. Opening an account online does not present a problem since there is no negotiating going on. But, here's the problem: If a customer comes into a branch, and they want documents delivered electronically or maybe not all parties are there to sign, we send the documents to them through our e-delivery system to deliver the documents (complying with E-Sign). The issue is that this system has the 5.00% TISD loaded in and we can't remove it and replace it with the 5.10% TISD. So, what is happening is the customer receives all of their disclosures with the 5.00% TISD and then we send the 5.10% TISD separately through the same system. I told management this is a violation of Regulation DD because the regulation states that the information can be provided on separate pieces of paper, but that it must all be provided together at the same time. Maybe this wouldn't be a UDAAP issue since we would have first disclosed 5.00%, but then we pay the customer more and disclosure the correct information soon after. But, that's a concern of mine too, especially with the business purpose accounts that don't fall under the Regulation DD requirements, but we do provide disclosures to them that explains the account and provides the interest rate and APY. Another human error risk is that when this 5.10% interest rate is provided, the system opens the account at 5.00% and then our back room operation employees have to manually change the rate and backdate it, but that's typically done within 24 hours.

So, do you think we are looking at Reg DD violations or do you think we are ok with disclosing the 5.00% TISD and then manually changing the rate the next day to 5.10% since all of our interest earning accounts state that we can change the rate without notice?

Thanks for your opinion!

Bottomline is that you are required to deliver accurate disclosures before the account is open.

With that said, I am not sure how this works, unless you delay the account opening until they receive them: "If a customer comes into a branch, and they want documents delivered electronically or maybe not all parties are there to sign, we send the documents to them through our e-delivery system to deliver the documents (complying with E-Sign). "

If the rate is our normal rate that we have listed on our rate sheet, then yes, we are providing disclosures before the account is opened, even when we deliver them electronically. The account is not funded and opened until all parties sign and receive documents. My concern is when we give a rate to the consumer that is not on our rate sheet, because we are trying to match a competitive rate, and we deliver documents electronically, then we are providing two different truth in savings disclosures, the first one has the rate sheet rate (which is not the rate that we and the customer agreed upon and the APY difference is not within tolerance), and the second one is the rate that we and the customer agreed upon. That second truth in savings is likely delivered minutes after the other documents are signed and maybe a few minutes after the account is opened (could even be before the account is opened). My concern is that we did not initially deliver the correct APY on the truth in savings disclosure and the fact that we delivered two different truth in savings disclosures. One compliance consultant that I reached out to seemed to think it would not be an issue because our disclosures state we can change the rate at any time without notice and said, “Technically if you have a formal agreement with the customer, the disclosures should match the agreement. But if the customer is fine with an informal agreement to do so, you would be fine giving the 5.0% disclosure then changing the rate later that day or the following day.” The second compliance consultant that I reached out to said, "Yes, you have a problem: Reg DD requires that the bank provide the consumer with the actual rate on the account and it must be provided at account opening. There is no wiggle room on this: your vendor is going to get your bank cited for noncompliance."
So, do you agree with the first consultant, that we can open the account, disclosures state the 5.00% rate, and then the next day we change it to whatever rate we and the consumer agreed upon (since our disclosures state we can change the rate at any time without prior notice)? Or do you think we could have a Reg DD violation of §1030.3(f) and §1030.4(b)(1)?

Personally, I think this says it all " the first one has the rate sheet rate (which is not the rate that we and the customer agreed upon"

I agree and those were my thoughts. I was really shocked when the compliance consultant told me otherwise. I just wanted to reach out to someone else and get another opinion. Thank you, rlcarey, for your quick responses.
Have a great day.

That particular compliance consultant is quite simply wrong. To be fair, they may have tried to give you a workaround to get the up front disclosures in agreement with the way the account is set up. But those disclosures don't reflect the "agreed upon" rate and that is a violation.