Two recent, unrelated federal court decisions may have significant implications for how a corporation, its board and its employees apply the timehonored ‘‘advice of counsel’’ defense in response to civil litigation challenges. In one decision, a court of appeals rejected a corporation’s attempt to rely on the defense, primarily because of problems the court identified in the process by which counsel were engaged and informed. In another decision, a district court rejected an employee’s ability to rely on the defense when his employer refused to waive the attorney-client privilege within which the advice was cloaked. The implications of these decisions should be brought by the general counsel to the attention of the audit and compliance committees, if not the full board.
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