Suppose a criminal defendant has a meritorious defense and wants to put
\nthat defense before the factfinder. It would be bizarre for a non-party to be able
\nto prevent the defendant from doing so simply by refusing to consent.
\nSuppose someone holding a valid attorney-client privilege claim, who has
\nnever waived it in the past, wants to continue maintaining it. It would be just as
\nbizarre for someone else to be able to force a waiver over the privilege-holder\u2019s
\nobjection simply by putting on a defense in separate litigation that does not
\ninvolve the privilege-holder.
\nThese principles come into direct tension in cases involving corporate attor
\nney-client privilege and claims against individual employees. When individuals
\nface criminal or civil liability for their work in a corporate capacity, they may
\nwant to raise an advice of counsel defense to prove their innocence. That
\ndefense would ordinarily require disclosure of all of the relevant privileged
\ncommunications. Yet because the corporation rather than the employee holds
\nthe attorney-client privilege, the corporation ordinarily would be able to refuse
\nto waive that privilege and thereby prevent its employees from mounting an
\nadvice of counsel defense. Denying individuals\u2019 right to put on a defense is a
\npotential constitutional violation and raises serious concerns about justice and
\nfairness. But shredding the attorney-client privilege to protect those interests
\nraises similarly weighty policy concerns. This real-world problem occurs repeatedly. Courts and commentators
\naddressing it, however, have not yet offered any satisfactory solutions. This
\nArticle examines the competing interests behind corporate attorney-client privi
\nlege and individuals\u2019 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).<\/p>\n
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