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12.15.15 | Articles

Employer’s Privilege Trumps Employee’s Advice-of-Counsel Defense

New York Law Journal

This article discusses U.S. District Judge Jesse M. Furman’s decision in United States v. Wells Fargo Bank, which explores the clash of interests between an employee who wishes to invoke an advice-of-counsel defense based on advice rendered by the employer’s attorney, and the employer who controls and is not willing to waiver the attorney-client privilege. In a case of first impression in the Second Circuit, Judge Furman landed squarely on the side of the employer, holding that a corporation cannot be forced to disclose privileged communications, even if those communications would provide a complete defense to one of its employees—at least in the context of a civil dispute.

Employer’s Privilege Trumps Employee’s Advice-of-Counsel Defense (PDF | 235.65 K)