what trumps attorney client privilege

Waiver of privilege is prerequisite to employee's assertion of advice-of-counsel defense

Employees relying upon the advice of their corporate counsel may not assert the advice-of-counsel defense in civil suits unless their employer agrees to waive the attorney-client privilege. In one of the few cases to address this issue, the court in United States v. Wells Fargo Bank, N.A.

Clash Between Attorney-Client Privilege and Advice-of-Counsel Defense

The U.S. government sued Wells Fargo in the U.S. District Court for the Southern District of New York for alleged violations of the False Claims Act and the Financial Institutions Reform, Recovery, and Enforcement Act.

Attorney-Client Privilege Is Not Subject to Balancing

The district court granted the protective order, holding that the corporation's assertion of the attorney-client privilege foreclosed the vice president's advice-of-counsel defense.

Chilling Effect on Communications with Company Counsel

Leaders of the ABA Section of Litigation agree that the district court's decision may have a chilling effect. “This [decision] could result in reticence to seek advice from company counsel or to disclose potential issues to counsel, which is clearly harmful to the company from both a legal and a business standpoint,” says Emily C.

Related Resources

United States v. Wells Fargo Bank, N.A., Civ. A. No. 12-7527 (JMF), 2015 U.S. Dist. LEXIS 126881 (S.D.N.Y. Sept. 22, 2015).

Why the Michael Cohen raid is more significant than a subpoena

Federal prosecutors may have executed this search warrant for the premises of an attorney because Cohen may be a subject of an investigation. But, as an attorney, he is also engaged in the practice of law on behalf of clients — clients whose privileged materials are now in the possession of federal agents.

Cohen raid like a nuclear strike, Sen. Richard Blumenthal says

Cohen's office potentially contains documents and communications to all his clients — not just Trump — that are privileged and confidential. The documents must be reviewed for privilege claims, and privileged documents are supposed to be returned to the attorney from whom they were seized.