Privilege Implications of an Explicit or Implicit “Advice of Counsel” Defense: Part I

May 10, 2017

All lawyers know that pleading an “advice of counsel” affirmative defense waives privilege protection. But lawyers must remember such waivers’ breadth.

In United States v. Trotter, defendant Trotter announced his intent to assert a “good faith reliance on the advice of counsel” defense, and “submitted waivers” from three lawyers. Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681, at *2 (E.D. Mich. Mar. 7, 2017). But the government noted that Trotter had received pertinent advice from four other lawyers. The court ordered Trotter to “(1) identify all attorneys who advised him on his management practices, (2) waive the attorney-client privilege for these attorneys, and (3) produce all materials relating to legal advice on these management practices in his possession.” Id. at *3. The court specifically rejected Trotter’s lawyers’ argument that they had already produced all pertinent documents in their possession – ordering his lawyers “to request these materials from” Trotter. Id.

Pleading an “advice of counsel” defense normally waives privilege protection for the client’s communications with any lawyers providing advice on the pertinent matter, and usually also extends to the client’s communication of facts to such lawyers that preceded the advice. Next week’s Privilege Point will describe another defendant’s less explicit reliance on advice of counsel, but which had the same waiver impact.