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The Advice-of-Counsel Defense and the Corporate Employee: A Loss of Balance
Ordinarily, a defendant who wishes to assert the defense of advice of counsel must unlock the door that shields his privileged communications with counsel and divulge those communications to his adversary. But when the defendant is a corporate employee who claims to have relied on advice from the corporation's attorney, the employee may not be able to unlock that door, because it is the company, as the owner of the privilege, that holds the key.
Over the past decade, courts have sought to mitigate the unfairness that can result when a corporation refuses to waive the privilege in aid of an individual employee's defense of a criminal prosecution or other law enforcement proceeding. These courts have reasoned that the corporation's right to control its attorney-client privilege must be balanced against the individual's right to present a defense, and that the latter can trump the former in appropriate circumstances. See, e.g., United States v. W.R. Grace, 439 F. Supp. 2d 1125 (D. Mont. 2006).
Two recent decisions by federal district judges now threaten to arrest that momentum. See United States v. Wells Fargo Bank, N.A., 2015 WL 5582120 (S.D.N.Y. Sept. 22, 2015); SEC v. Present, 2015 WL 9294164 (D. Mass. Dec. 21, 2015). These decisions reject the very idea of balancing in such cases, finding the corporation's right to control its privilege inviolate under the Supreme Court's ruling in Swidler & Berlin v. United States, 524 U.S. 399 (1998). This article examines the reasoning underlying these decisions.
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