ARTICLES
Attorney-Client Privilege Versus the Right to Put
On A Defense
BRADLEY E. OPPENHEIMER*
ABSTRACT
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
* Partner, Kellogg, Hansen, Todd, Figel & Frederick, PLLC. My gratitude to Reid Figel and Robert Klipper
for helpful discussions that contributed to this Article, to Tasneem Warwani for insightful feedback and com-
ments, and to Kathleen Oppenheimer for more than can possibly be summarized here. © 2025, Bradley
E. Oppenheimer.
1
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).
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. THE ATTORNEY-CLIENT PRIVILEGE AND CRIMINAL
DEFENDANTS’ RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. THE ATTORNEY-CLIENT PRIVILEGE . . . . . . . . . . . . . . . . . 6
1. BACKGROUND ...................................... 6
2. POLICY JUSTIFICATIONS FOR THE ATTORNEY-CLIENT PRIVILEGE 8
B. THE RIGHT TO PUT ON A DEFENSE . . . . . . . . . . . . . . . . . . 12
1. DEVELOPMENT BY THE WARREN AND BURGER COURTS . . . . . . 13
2. TREATMENT UNDER THE REHNQUIST AND ROBERTS COURTS . . 17
II. POTENTIAL CONFLICTS BETWEEN PRIVILEGE AND THE RIGHT
TO PUT ON A DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
III. POTENTIAL SOLUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A. THE ABSOLUTIST PRIVILEGE APPROACH . . . . . . . . . . . . . 24
B. THE BALANCING APPROACH . . . . . . . . . . . . . . . . . . . . . . 27
C. THE ABSOLUTIST WAIVER APPROACH . . . . . . . . . . . . . . . 29
D. THE AUTOMATIC DISMISSAL APPROACH . . . . . . . . . . . . . 30
E. THE INDEMNIFICATION APPROACH . . . . . . . . . . . . . . . . . 31
F. THE RULE 502 APPROACH . . . . . . . . . . . . . . . . . . . . . . . . . 32
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
INTRODUCTION
Crimes with a specific intent element are subject to an “advice of counsel”
defense: a defendant who reasonably relied on an attorney’s advice that a pro-
posed course of conduct was legal did not willfully or intentionally break the
2 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 38:1
law.
1
White collar crimes, such as mail and wire fraud, embezzlement, kickbacks,
tax evasion, and others, often include a specific intent element.
2
Those crimes are
particularly well suited to an advice of counsel defense given the potential com-
plexity of the underlying facts: a defendant could genuinely have believed she
was complying with the law in all respects based on advice she received from
counsel.
The advice of counsel defense requires proof that the defendant made a full
and fair disclosure of the underlying facts to the attorney; and in order to test that
premise, a defendant asserting the advice of counsel defense must ordinarily
waive the attorney-client privilege, at least as to matters related to the legal
advice at issue.
3
In the mine run of cases, this requirement is fairly straightfor-
ward. But it raises extremely difficult questions when an individual defendant
faces liability for conduct undertaken in the individual’s capacity as a corporate
officer or employee—a reasonably common pattern in the world of white collar
crimes, given the types of conduct those statutes prohibit. The advice of counsel
defense can be fraught in this context because “[a]ny privilege resulting from
communications between corporate officers and corporate attorneys concerning
matters within the scope of the corporation’s affairs and the officer’s duties
belongs to the corporation and not to the officer.”
4
As a result, if the individual
defendant acted on the basis of advice from attorneys representing the corpora-
tion but the corporation refuses to waive its attorney-client privilege, the
1. See, e.g., Williamson v. United States, 207 U.S. 425, 453 (1908) (“[I]f a man honestly and in good faith
seeks advice of a lawyer as to what he may lawfully do in the matter of loaning money to applicants under it,
and fully and honestly lays all the facts before his counsel, and in good faith and honestly follows such advice,
relying upon it and believing it to be correct, and only intends that his acts shall be lawful, he could not be con-
victed of crime which involves wilful and unlawful intent; even if such advice were an inaccurate construction
of the law . . . .”); United States v. DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997) (“[G]ood faith reliance upon
advice of counsel . . . establish[es] a defense’ to specific intent crimes”) (quoting United States v. Hansen, 772
F.2d 940, 947 (D.C. Cir. 1985) (ellipsis and second alteration in original)); United States v. Bruner, 616
F. App’x 841, 846 (6th Cir. 2015) (“In asserting an advice-of-counsel defense, a defendant alleged to have per-
formed a criminal act argues that she did so on her lawyer’s advice, and therefore lacked the requisite mens rea
element of the offense.”).
2. See, e.g., United States v. Frey, 42 F.3d 795, 797 (3d Cir. 1994) (observing that intent is an element of
federal wire fraud statute, 18 U.S.C. § 1343); United States v. May, 625 F.2d 186, 189–90 (8th Cir. 1980)
(embezzlement, 18 U.S.C. § 666(a)(1)); United States v. Vernon, 723 F.3d 1234, 1256 (11th Cir. 2013) (Anti-
Kickback Statute, 42 U.S.C. § 1320a-7b); United States v. Collorafi, 876 F.2d 303, 305 (2d Cir. 1989) (tax eva-
sion, 26 U.S.C. § 7201).
3. See, e.g., United States v. Quiel, 595 F. App’x 692, 694 (9th Cir. 2014) (“Defendants waived the protec-
tion of the privilege by relying on an advice-of-counsel defense.”); Glenmede Tr. Co. v. Thompson, 56 F.3d
476, 486 (3d Cir. 1995) (“The party opposing the defense of reliance on advice of counsel must be able to test
what information had been conveyed by the client to counsel and vice-versa regarding that advice—whether
counsel was provided with all material facts in rendering their advice, whether counsel gave a well-informed
opinion and whether that advice was heeded by the client.”).
4. In re Grand Jury Subpoenas, 144 F.3d 653, 658 (10th Cir. 1998); accord e.g., United States v. Graf, 610
F.3d 1148, 1159 (9th Cir. 2010); United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen &
Helpers of Am., AFL-CIO, 119 F.3d 210, 215 (2d Cir. 1997); Matter of Bevill, Bresler & Schulman Asset
2025] PRIVILEGE AND THE RIGHT TO A DEFENSE 3
