Suppose a criminal defendant has a meritorious defense and wants to put
that defense before the factfinder. It would be bizarre for a non-party to be able
to prevent the defendant from doing so simply by refusing to consent.
Suppose someone holding a valid attorney-client privilege claim, who has
never waived it in the past, wants to continue maintaining it. It would be just as
bizarre for someone else to be able to force a waiver over the privilege-holder’s
objection simply by putting on a defense in separate litigation that does not
involve the privilege-holder.
These principles come into direct tension in cases involving corporate attor
ney-client privilege and claims against individual employees. When individuals
face criminal or civil liability for their work in a corporate capacity, they may
want to raise an advice of counsel defense to prove their innocence. That
defense would ordinarily require disclosure of all of the relevant privileged
communications. Yet because the corporation rather than the employee holds
the attorney-client privilege, the corporation ordinarily would be able to refuse
to waive that privilege and thereby prevent its employees from mounting an
advice of counsel defense. Denying individuals’ right to put on a defense is a
potential constitutional violation and raises serious concerns about justice and
fairness. But shredding the attorney-client privilege to protect those interests
raises similarly weighty policy concerns. This real-world problem occurs repeatedly. Courts and commentators
addressing it, however, have not yet offered any satisfactory solutions. This
Article examines the competing interests behind corporate attorney-client privi
lege and individuals’ right to put on a defense and the relative merits of the various approaches that courts and commentators have so far offered to resolve that tension. It then offers a novel solution to this problem using the already-existing vehicle of Federal Rule of Evidence 502(d).

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