Contractual waiver of corporate attorney-client privilege

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.