Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
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.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.