Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

The Corporate CounselorFeaturesKickerLJN NewslettersNewsRegulationSectionsTopics

The Advice-of-Counsel Defense and the Corporate Employee: A Loss of Balance

By Gary Stein
February 29, 2016

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).

This premium content is locked for Entertainment Law & Finance subscribers only

  • 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

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Law Firms are Reducing Redundant Real Estate by Bringing Support Services Back to the Office Image

A trend analysis of the benefits and challenges of bringing back administrative, word processing and billing services to law offices.

Bankruptcy Sales: Finding a Diamond In the Rough Image

There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.

Bit Parts Image

Summary Judgment Denied Defendant in Declaratory Action by Producer of To Kill a Mockingbird Broadway Play Seeking Amateur Theatrical Rights

Risks of “Baseball Arbitration” in Resolving Real Estate Disputes Image

“Baseball arbitration” refers to the process used in Major League Baseball in which if an eligible player's representative and the club ownership cannot reach a compensation agreement through negotiation, each party enters a final submission and during a formal hearing each side — player and management — presents its case and then the designated panel of arbitrators chooses one of the salary bids with no other result being allowed. This method has become increasingly popular even beyond the sport of baseball.

Disconnect Between In-House and Outside Counsel Image

'Disconnect Between In-House and Outside Counsel is a continuation of the discussion of client expectations and the disconnect that often occurs. And although the outside attorneys should be pursuing how inside-counsel actually think, inside counsel should make an effort to impart this information without waiting to be asked.