In United States v. Wells Fargo Bank, N.A., No. 12-cv-7527 (JMF), 2015 WL 3999074 (S.D.N.Y. June 30, 2015) and in an Endorsed Letter, No. 12-cv-7527 (JMF) Dkt. No. 255 (S.D.N.Y. July 14, 2015), the court held that an employee who does not have the authority to waive his employer’s attorney-client privilege may not impliedly waive the privilege by asserting an advice-of-counsel defense. In this case, the government brought a civil fraud action against Wells Fargo and one of its employees, Lofrano. During his deposition, Lofrano testified that he consulted Wells Fargo’s counsel regarding the conduct at issue, and made it clear that he intended to pursue an advice-of-counsel defense. Wells Fargo objected to Lofrano testifying about his communications with Wells Fargo’s counsel on the grounds that the privilege was held by the company, not by Lofrano. The government argued that Lofrano’s assertion of advice-of-counsel waived Wells’ Fargo’s privilege. According to the court, this presented an unresolved question of law: whether an employee’s intention to pursue an advice-of-counsel defense, without more, constitutes an implied waiver of the corporation’s attorney-client privilege, even if the employee lacks the authority to waive the privilege on behalf of the corporation, and the corporation consistently asserts the privilege and almost no privileged information has yet been revealed. The court held that, where the employee does not have authority to waive the privilege on behalf of the corporation, the privilege is not waived by the employee’s mere invocation of the defense. The court noted that, should Wells Fargo continue to object to Lofrano’s assertion of an advice-of-counsel defense, “Lofrano’s right to present a defense could conceivably overcome Wells Fargo’s right to maintain its privilege.” The court directed the parties to meet and confer and submit a joint letter to the court proposing a procedure for resolving this issue. In a letter endorsement (Docket No. 255, filed 07/14/15), the court determined that a motion to sever Lofrano from the case – the solution proposed by Wells Fargo and Lofrano, but opposed by the government – would be premature and directed the parties to brief the issue of what, if any, discovery by the government of Wells Fargo’s privileged communications would be allowed.