July 8, 2010
Corporate Counsel or Individual Counsel
The tension between whether corporate counsel is representing an individual employee or the corporation has proved problematic in several cases. The issue can arise when there is a claim of attorney-client privilege. In United States v. Graf, the Ninth Circuit Court of Appeals considered this issue as corporate counsel was "called to testify in opposition to the [the employee] during a criminal trial against the corporation's former officers." The court stated that:
"Graf was indicted for his involvement in the fraudulent operation of Employers Mutual. The district court held an evidentiary hearing on Graf’s motion in limine to exclude the attorneys’ testimony and, after evaluating the briefing, written declarations, and oral testimony presented, issued an order allowing several attorneys who had represented Employers Mutual to testify against Graf at his criminal trial. The court found as fact that the attorneys represented only Employers Mutual and that Graf had no individual attorney-client relationship to establish a privilege that would be violated by the proffered testimony."
Graf argued on appeal that he was "an independent consultant to Employers Mutual." The Ninth Circuit applied the Bevill test and held that Graf did not hold a "personal attorney-client privilege with respect to his communications with the subject attorneys."
(esp) (w/ a hat tip from Linda Friedman Ramirez)
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