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116 Yale L.J. 412 (2006-2007)
Contractual Waiver of Corporate Attorney-Client Privilege

handle is hein.journals/ylr116 and id is 428 raw text is: MARK A. KRESSEL

Contractual Waiver of Corporate Attorney-Client
Privilege
A B ST R ACT. A corporate director, sued in her individual capacity in connection with
corporate malfeasance, often seeks to raise the defense that she relied on the advice of the
corporation's counsel that the proposed course of conduct was legal. A litigation impasse may
arise, however, if the corporation, as sole holder of the attorney-client privilege, refuses to waive
its privilege. The impasse leaves the plaintiff unable to evaluate the director's claims and leaves
the defendant unable to mount her defense. As a solution to this impasse, this Note proposes
that directors and their corporations should contract ex ante that the corporation will waive its
privilege under these limited circumstances.
A U T H O R. Yale Law School, J.D. expected 2007; Yale College, B.A. 1996. I would like to
thank Professor Ian Ayres and Eugene Nardelli for their tireless assistance in developing and
editing this Note, as well as Professor John Langbein, Bharat Ramamurti, and Josh Hafetz. I
would also like to thank the attorneys and staff at the U.S. Attorney's Office for the Central
District of California, Civil Division, and particularly Gary Plessman and Cathy Ostiller for their
inspiration, mentoring, and support.
412

Imaged with the Permission of Yale Law Journal

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