United States v. SpineFrontier, Inc.: Limiting Implied Waiver of Corporate Attorney‑Client Privilege When Executives Raise “Involvement‑of‑Counsel” Defenses

Introduction

This First Circuit decision in United States v. SpineFrontier, Inc., No. 25‑1251 (1st Cir. Nov. 26, 2025), sits at the intersection of corporate attorney‑client privilege, criminal defendants’ trial strategies, and the fairness-based doctrine of implied waiver. The court confronts a recurring but under‑explored problem: when a corporate officer facing criminal charges points to the involvement of corporate counsel to negate criminal intent, does that tactical choice automatically waive the corporation’s attorney‑client privilege?

The case arises from alleged violations of the federal Anti‑Kickback Statute (AKS), 42 U.S.C. § 1320a‑7b, by a medical device company, SpineFrontier, Inc.; its founder and CEO, Dr. Kingsley Chin; and its CFO, Aditya Humad. The government alleges a years‑long kickback scheme in which surgeons were paid sham “consulting” fees tied to their use of SpineFrontier products in procedures reimbursed by federal health care programs.

SpineFrontier had retained outside counsel (Strong & Hanni PC) to opine on the legality of its consulting arrangements. As the criminal case advanced, CFO Aditya Humad announced that he would pursue a so‑called “involvement‑of‑counsel” defense: he would point to the presence and involvement of SpineFrontier’s lawyers as circumstantial evidence of his good faith, while disclaiming any intent to disclose or rely on specific legal advice.

The district court treated this planned defense as an implied waiver of SpineFrontier’s corporate attorney‑client privilege and ordered production of privileged communications between Strong & Hanni and Humad to the government. SpineFrontier—no longer a criminal defendant but still the privilege holder—took an interlocutory appeal to protect its privilege.

The First Circuit vacates the waiver order and remands. In doing so, it:

• Clarifies that not every “involvement‑of‑counsel” defense automatically waives the privilege; waiver depends on whether the defense actually injects privileged communications into the case.
• Emphasizes that courts must examine, in a fact‑intensive way, whether a given executive has authority—by virtue of “alter‑ego” status or aligned interests—to waive the corporation’s privilege.
• Directs trial courts to consider narrower evidentiary tools (Rules 401 and 403, and jury instructions) before breaching the privilege in the name of fairness.

This opinion is significant because it sharply limits how readily the government may obtain corporate privileged communications when an individual executive mounts a good‑faith or counsel‑involvement defense, and it provides a structured framework for analyzing implied waiver in the corporate context in the First Circuit.

Summary of the Opinion

The First Circuit identifies two principal questions:

1. Authority to Waive: Does CFO Aditya Humad, now the lone criminal defendant, have authority to waive SpineFrontier’s corporate attorney‑client privilege?
2. Scope of Implied Waiver: Assuming he does have such authority, does his proposed “involvement‑of‑counsel” defense in fact work an implied waiver of that privilege?

The court holds:

• The district court’s waiver analysis is incomplete because it treated Chin and Humad together as “controlling officers” capable of jointly waiving the privilege. Now that Chin has pled guilty and is no longer part of the trial, the proper question is whether Humad alone is an alter‑ego of SpineFrontier or shares an identity of interests with the company sufficient to waive its privilege. The record is not developed enough on this point, so the issue must be reconsidered on remand.
• As a matter of principle, not every involvement‑of‑counsel defense triggers an implied waiver. If a defendant merely argues that the company’s decision to retain and involve counsel makes it less likely that he intentionally violated the law, without conveying substantive content of privileged communications, there is no waiver. A waiver may be appropriate only when the defense, expressly or by fair implication, asserts that counsel approved the specific conduct as implemented, thereby putting the substance of privileged communications in issue.
• Even where a proposed defense risks unfair prejudice to the government or jury confusion, the district court should first consider alternative remedies—like exclusion or limitation of such evidence under Federal Rules of Evidence 401 and 403, or tailored limiting instructions—before ordering disclosure of privileged attorney‑client communications. Waiver is a “significant penalty” and should be a last resort.
• The court leaves open, in line with Swidler & Berlin v. United States, whether a criminal defendant’s Sixth Amendment right to present a defense might ever override a corporate privilege in “exceptional circumstances.” It notes that the right to present a defense does not trump valid evidentiary and privilege rules as a general matter.

On that basis, the First Circuit vacates the district court’s March 7, 2025 waiver order and remands for further proceedings consistent with its opinion.

I. Background and Context

A. The Parties and Alleged Scheme

SpineFrontier, Inc. is a privately held medical device company focused on spinal implants and related products. It was founded by Dr. Kingsley Chin, who serves as its President, CEO, sole Director, and near‑100% shareholder—effectively the controlling owner. Aditya Humad is the CFO, Vice President of Business Development, Secretary, and Treasurer, but not a shareholder. Chin and Humad are the company’s only officers.

A 2021 grand jury indictment charged SpineFrontier, Chin, and Humad with multiple offenses, including conspiracy and substantive violations of the Anti‑Kickback Statute (AKS). The AKS criminalizes “knowing and willful” payment of “remuneration” to induce referrals for services reimbursed by federal healthcare programs. The government alleged that from 2012 to 2019, the defendants paid millions of dollars to surgeons under sham “consulting” agreements, with compensation allegedly calculated by Humad based on surgery volume and revenue generated for SpineFrontier—precisely the kind of volume‑ or value‑based payment AKS prohibits.

B. Role of Outside Counsel

In designing its consulting program, SpineFrontier retained Strong & Hanni PC to provide legal opinions on the proposed surgeon consulting agreements. The law firm issued opinion letters concluding that the proposed agreements complied with applicable federal healthcare law, but only subject to explicit assumptions, including:

• Compensation would be for bona fide services and would reflect fair market value in arm’s‑length transactions.
• The parties would implement the agreements as drafted.
• Critically, compensation “will not be determined in a manner that takes into account the volume or value of any referrals or business.”

Chin and Humad disseminated these letters to surgeons as reassurance that the program was legally permissible. The record suggests Strong & Hanni may have been involved throughout the program, attending company meetings and assisting with public disclosures related to consulting payments, though the exact scope of the firm’s role is not fully developed.

C. Emergence of the “Involvement‑of‑Counsel” Defense

As trial approached, the defendants sought to raise an “involvement‑of‑counsel” defense—arguing that, because corporate counsel had been involved in structuring and overseeing the program, they lacked the specific intent or willfulness required for AKS violations.

The district court initially signaled (June 2024) that if any defendant attempted to negate mens rea by pointing to the involvement of Strong & Hanni, this would likely work a waiver of SpineFrontier’s attorney‑client privilege as to related communications. At that point, the court permitted the government to subpoena Strong & Hanni but kept responsive materials under seal, pending a firm decision by defendants to use such a defense.

D. Motion for Reconsideration and Corporate Objection

Chin and Humad moved for reconsideration, arguing:

• Their proposed strategy differed from a classic “advice‑of‑counsel” defense because they would not disclose specific legal advice or attest that they acted in accordance with it; they would only emphasize the fact of counsel’s involvement.
• They lacked authority to waive the corporation’s privilege, especially over SpineFrontier’s objection.

By February 2025, the government had dismissed all criminal charges against SpineFrontier, making it a non‑party “interested party” focused solely on protecting its privilege. The district court, however, reasoned that allowing Chin and Humad to reference counsel’s involvement, without access to the underlying communications, could mislead the jury into believing that Strong & Hanni had approved the consulting program as implemented. The court worried that any such approval might have been based on incomplete or inaccurate information.

Citing corporate records listing Chin and Humad as the only officers, the district court concluded that, as “controlling officers” of the closely held company, they could collectively effect an implied waiver of SpineFrontier’s privilege.

E. Diverging Defense Strategies and Severance

On March 3, 2025, with a joint trial still scheduled, Chin and Humad filed separate notices:

• Humad stated he would pursue an involvement‑of‑counsel defense, intending to elicit evidence about the “presence or involvement” of corporate counsel in the consulting program and argue that such involvement tended to show he acted in good faith. He explicitly disclaimed any intent to disclose specific legal advice.
• Chin stated that he would not raise such a defense, and he agreed that the relevant privilege belonged to SpineFrontier.

The government accused the two of gamesmanship and sought severance to prevent Chin from indirectly benefiting from Humad’s defense. The district court severed the trials but made no particular finding of gamesmanship.

F. The Waiver Orders and Interlocutory Appeal

On March 5, 2025, the court informed the parties that, based on Humad’s notice, it would treat his involvement‑of‑counsel defense as waiving SpineFrontier’s privilege as to communications between him and Strong & Hanni, and that such communications would be produced to the government.

After receiving SpineFrontier’s objections, the court reaffirmed this conclusion in a March 7, 2025 order:

• It found “no basis to bar” Humad from raising the defense.
• It held that by raising that defense, Humad “waives the privilege as to his communications” with Strong & Hanni, and ordered the documents produced, subject to a stay to allow interlocutory review.

Subsequently, Chin pled guilty to making false statements under 18 U.S.C. § 1001(a)(2); all remaining charges against him were dropped. Thus, only Humad remains charged with AKS violations, with his trial scheduled for June 2026.

SpineFrontier, now a non‑party, appealed under the Perlman doctrine to protect its privilege.

II. Appellate Jurisdiction and the Perlman Exception

The government argued that the First Circuit lacked jurisdiction over the substantive waiver ruling because SpineFrontier appealed the March 7, not the March 5, order. The First Circuit rejects this technical challenge.

Under the Perlman exception to the final judgment rule, a non‑party who owns privileged or subpoenaed documents may immediately appeal an order compelling their production, because the non‑party cannot protect itself by disobeying the order and being held in contempt. Here:

• All agreed that Perlman allowed review of the March 7 order.
• And that order expressly held that (a) Humad’s involvement‑of‑counsel defense “waives the privilege,” and (b) the documents will be produced.

Thus, the March 7 order encapsulated both elements at issue: whether the defense triggers a waiver and whether Humad can effect that waiver. Reviewing it sufficed to address all relevant privilege questions.

III. Legal Reasoning and Precedents

A. The Attorney‑Client Privilege and Implied Waiver

The court begins with standard privilege principles:

• The attorney‑client privilege covers confidential communications between client (including corporate employees) and counsel for the purpose of obtaining legal advice. See Upjohn Co. v. United States, 449 U.S. 383 (1981); Miss. Pub. Emps.’ Ret. Sys. v. Boston Scientific Corp., 649 F.3d 5 (1st Cir. 2011).
• The privilege applies to corporations as well as individuals. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985).
• Because it impedes the search for truth, the privilege must be construed narrowly. See In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.) (“XYZ Corp.”), 348 F.3d 16, 22 (1st Cir. 2003).

Waiver can be express or implied. This case involves implied waiver—where a party’s conduct, rather than a formal declaration, effectively relinquishes the privilege.

The First Circuit acknowledges that implied waiver doctrine is “not well‑developed” in the circuit, but reiterates its framework from XYZ Corp.:

• Courts should be “cautious” in finding implied waivers.
• The core touchstones are “logic and fairness.”
• Implied waiver typically arises when a party places privileged information in issue for personal benefit, thereby risking use of the privilege as both “sword and shield.”

The court also emphasizes that waiver analysis is intensely fact‑specific; “few genuine instances” of implied waiver exist in the case law.

B. Corporate Context: Who May Waive? (Weintraub and In re Grand Jury Proceedings)

In the corporate setting, the privilege belongs to the entity, not its individual officers. Under Weintraub, current management generally controls the privilege and must exercise it in the corporation’s best interests, not for personal advantage.

The First Circuit finds particularly instructive the Second Circuit’s decision in In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000). There, the court distilled several factors for determining whether an executive’s actions impliedly waived the company’s privilege:

• Whether the executive is the corporation’s alter ego or otherwise shares an identity of interests with it (looking to role, control, ownership, corporate structure).
• The nature and context of the executive’s disclosure—was it voluntary, did it reveal privileged substance, and was it calculated to exculpate the executive personally?
• The prejudice to the government and whether any remedy should be tailored and proportionate to that prejudice.

The First Circuit explicitly adopts this framework as “helpful” for its own implied‑waiver analysis in the corporate context.

C. Executive Authority to Waive Corporate Privilege: Alter‑Ego and Identity of Interests

Applying these principles, the court first asks: can CFO Humad, as an individual defendant, waive SpineFrontier’s privilege?

The parties frame the question differently:

• SpineFrontier argues that only Chin—founder, CEO, sole director, and controlling shareholder—could plausibly be treated as the company’s alter ego. Humad, a non‑shareholder CFO handling primarily administrative and financial matters and reporting to Chin, is not the company.
• The government stresses that SpineFrontier is closely held, with just two officers. It contends that Chin and Humad together are functionally indistinguishable from the corporation, and that treating them as separate from SpineFrontier would allow them to wield the privilege opportunistically.

The First Circuit rejects the government’s tendency to treat Chin and Humad as a unit, because Chin is no longer a defendant and his trial has been severed. The relevant inquiry is whether Humad alone can be equated with the company.

Drawing on In re Grand Jury Proceedings, the court notes that even an executive who is founder, CEO, and controlling shareholder of a publicly‑traded company was held not to be the company’s alter ego in that case, given the existence of a board, a broad shareholder base, and other employees. This underscores that alter‑ego status is exceptional.

Here, the record is sparse. However:

• Chin undeniably appears to be the alter‑ego of SpineFrontier, but he is no longer involved in the trial.
• Humad’s interests may diverge sharply from the corporation’s. SpineFrontier now faces no criminal charges and has consistently sought to maintain its privilege. By contrast, Humad faces criminal exposure and wishes to deploy counsel involvement as a defense—potentially at the corporation’s expense.

When an executive’s personal interest in avoiding criminal liability “overrides his fidelity to the corporation,” fairness may cut against imputing to the corporation any implied waiver caused by that executive’s litigation strategy.

Because the district court’s original waiver ruling rested on joint authority of Chin and Humad, it never had occasion to analyze whether Humad alone is an alter‑ego or sufficiently aligned with the corporation’s interests to waive its privilege. The First Circuit thus remands for the district court to reconsider the issue on a more developed record, taking account of the now‑changed circumstances.

D. The Unresolved Constitutional Issue: Sixth Amendment vs. Corporate Privilege

The government urged the First Circuit to go further and hold that, regardless of corporate authorization, a criminal defendant’s Sixth Amendment right to present a defense trumps the corporation’s privilege.

The court declines. Citing Swidler & Berlin v. United States, 524 U.S. 399 (1998), it notes that the Supreme Court has left open whether “exceptional circumstances” implicating a criminal defendant’s constitutional rights might warrant breaching privilege. The First Circuit emphasizes:

• The Sixth Amendment guarantees a “meaningful opportunity to present a complete defense,” but not an “unfettered” right to present incompetent, privileged, or otherwise inadmissible evidence. See United States v. Coleman, 149 F.4th 1, 34 (1st Cir. 2025); United States v. Brown, 669 F.3d 10, 19 (1st Cir. 2012).
• The right to present a defense does not override “well‑established rules of evidence,” including Rule 403 balancing of prejudice versus probative value. See Holmes v. South Carolina, 547 U.S. 319, 326 (2006); United States v. Pires, 642 F.3d 1, 13 (1st Cir. 2011).

The panel instructs that if the district court determines Humad lacks authority to waive the privilege, it should “breach” the privilege only if it finds “exceptional circumstances” justifying that step, and only after considering admissibility and alternative remedies under the Rules of Evidence.

E. Nature of the “Involvement‑of‑Counsel” Defense and When It Waives Privilege

The heart of the opinion is the court’s treatment of the “involvement‑of‑counsel” defense. Because Humad is not a party to the appeal and trial remains in the future, the exact contours of his planned defense are uncertain. The court therefore works from:

• Humad’s March 3 notice, and
• The parties’ competing interpretations of that notice.

The court draws an important distinction between:

1. A traditional “advice‑of‑counsel” defense, in which a defendant testifies that he fully disclosed all material facts to counsel and then acted strictly according to counsel’s express legal advice. That defense is “paradigmatic” of implied waiver, since it puts the content of legal advice squarely in issue.
2. A more limited “involvement‑of‑counsel” defense, in which a defendant points only to the fact that counsel was present or involved—without detailing specific advice—to suggest that he lacked criminal intent.

The First Circuit leans heavily on the D.C. Circuit’s decision in United States v. White, 887 F.2d 267 (D.C. Cir. 1989), which held:

• Merely acknowledging that an attorney was present or had examined a matter is not equivalent to affirmative reliance on a conclusion that the conduct was legal.
• A general assertion lacking substantive content that counsel has reviewed a matter is not enough to waive the privilege.

Adapting White to this case, the First Circuit frames two scenarios:

1. No Waiver Scenario: Counsel’s Existence and Engagement Only

If Humad argues only that:

• SpineFrontier retained Strong & Hanni to structure the consulting program; and
• He understood counsel to be involved and “watching” over the program; and
• Those facts, by themselves, made it less likely that he would deliberately break the law;

then this does not reveal the substance of any privileged communication. It does not, for example, assert:

• What facts he conveyed to counsel.
• What specific advice counsel gave about paying surgeons.
• That counsel approved the actual compensation formulas used.

In that limited form, the defense is no more than a background fact about corporate behavior and counsel retention, and does not trigger an implied waiver. It does not raise the fairness concerns associated with a classic advice‑of‑counsel defense, such as selective disclosure of favorable advice while burying unfavorable advice.

2. Potential Waiver Scenario: Implicit Assertion of Counsel’s Approval of Implementation

On the other hand, if Humad implies or argues that:

• Strong & Hanni specifically approved the consulting program as it was implemented (including the volume‑based payment methods alleged by the government), and
• He relied on that approval in carrying out the scheme;

then he is effectively asserting the existence and content of a privileged communication: that counsel, having been told how the program actually worked, advised that it complied with the law. In that circumstance, fairness may require allowing the government to probe:

• What facts did Humad (and others) disclose to counsel?
• Did counsel’s opinion letters include key assumptions that were not actually met (e.g., compensation not tied to volume or value of referrals)?
• Was any approval premised on incomplete or inaccurate information?

This is precisely the concern articulated by the district court: that the jury might mistakenly equate counsel’s involvement with a blanket legal endorsement of the conduct as carried out, unless the government could test that impression through discovery of the underlying communications.

The First Circuit agrees that such a defense risks unfairness and could justify a finding of implied waiver, because it functionally transforms an “involvement‑of‑counsel” theme into a de facto “advice‑of‑counsel” defense.

But crucially, the court holds that not all references to counsel’s involvement fall into this second category. An involvement‑of‑counsel defense does not automatically trigger waiver; the outcome depends entirely on how concretely and substantively the defense relies on privileged advice.

On remand, the district court is instructed to scrutinize the exact defense Humad proposes to offer at trial and determine where it falls along this spectrum.

F. Alternative Remedies: Rules 401 and 403; Jury Instructions

Even where some risk of prejudice or confusion arises from an involvement‑of‑counsel defense, the First Circuit emphasizes that courts should first consider less drastic remedies than breaching privilege.

Two principal tools are highlighted:

1. Federal Rules of Evidence 401 and 403:
   • Rule 401 asks whether the evidence makes a fact of consequence more or less probable; Rule 403 allows exclusion if probative value is substantially outweighed by dangers such as unfair prejudice, confusing the issues, or misleading the jury.
   • If counsel‑involvement evidence is only marginally probative of willfulness but highly likely to mislead jurors into thinking counsel “blessed” the entire scheme, a court could limit or exclude it under Rule 403 without ordering disclosure of privileged communication.
2. Jury Instructions:
   • The district court could instruct the jury on the limited permissible inferences from counsel’s involvement, clarifying that counsel’s presence or general involvement does not mean the entire program, as implemented, was lawful.
   • Clear instructions can greatly reduce risk of confusion or undue weight being given to counsel’s role.

The court also notes that if, mid‑trial, Humad were to shift from a narrow engagement‑of‑counsel argument to an implied advice‑of‑counsel argument, the trial judge could address that pivot with flexible remedies, including limiting instructions or a brief continuance to allow review of relevant communications. Waiver of privilege is not the only, nor necessarily the preferred, response.

Because waiver is a “significant penalty,” the panel suggests it should be reserved for situations where narrower remedies cannot adequately protect fairness and the truth‑seeking function.

G. Prejudice to the Government

Importantly, the First Circuit is skeptical that the government would suffer substantial prejudice from the involvement‑of‑counsel defense in the form described by Humad’s notice. It points to the Strong & Hanni opinion letters themselves, which:

• Explicitly assume that compensation will not be tied to volume or value of referrals, and
• Emphasize that legality depends on bona fide services at fair market value.

If the government introduces these letters, they may actually undercut the inference that counsel’s involvement suggests legality of the alleged kickback scheme; the letters show that any approval depended on conditions allegedly violated by the defendants’ conduct.

This undercuts the government’s claim that it needed access to privileged communications to counteract the defense. The availability of non‑privileged evidence (the opinion letters) to rebut the defense further supports a cautious approach to implied waiver.

IV. Simplifying Key Concepts

A. Attorney‑Client Privilege in Corporate Settings

In plain terms, the attorney‑client privilege protects confidential communications between a client and its lawyer when the purpose is to get legal advice. In a corporation:

• The “client” is the company itself, not individual officers or employees.
• Officers and employees may speak to the company’s lawyers on its behalf, but they do not personally “own” the privilege; the corporation does.

B. Implied Waiver

An implied waiver happens when a party’s actions effectively give up the privilege, even though the party never says “I waive the privilege.” This often occurs when a party:

• Reveals part of a privileged communication to gain an advantage, or
• Bases a legal claim or defense on what a lawyer said (e.g., “my lawyer told me it was legal”).

Courts are wary of allowing someone to use the privilege both as a shield (to block inquiry into what was said) and as a sword (to selectively present favorable portions).

C. Advice‑of‑Counsel vs. Involvement‑of‑Counsel

A formal advice‑of‑counsel defense typically requires a defendant to show:

• He sought legal advice in good faith before acting.
• He disclosed all relevant facts to the lawyer.
• He relied on the lawyer’s advice and complied with it.

Because this defense directly relies on the content of the lawyer’s advice, it almost always results in waiver of the privilege as to those communications.

A more limited involvement‑of‑counsel defense does not say, “My lawyer told me this was legal.” Instead, it says, in essence, “The company hired good lawyers and had them involved, so I thought everything was being done properly.” This defense:

• Does not necessarily disclose what the lawyer actually said, and
• May, depending on how it is framed, avoid waiving the privilege.

D. Alter‑Ego and Identity of Interests

An individual is an organization’s “alter ego” when the law treats that person and the entity as essentially the same for some purposes. Factors include:

• Ownership (e.g., sole or controlling shareholder).
• Role (e.g., sole director, CEO, ultimate decision‑maker).
• Corporate structure and presence (or absence) of meaningful independent governance.

If an executive is the alter‑ego of a corporation, his decisions are effectively the corporation’s decisions. In that rare case, his conduct may be treated as if the corporation itself waived the privilege.

Even without strict alter‑ego status, if an executive’s interests and the corporation’s are closely aligned (e.g., both are facing the same criminal charges and share the same legal strategy), waiver may sometimes be imputed to the company. But if their interests diverge—especially where the corporation seeks to preserve its privilege and the executive wants to sacrifice it for personal benefit—courts should hesitate to treat the executive’s actions as a corporate waiver.

E. Rules 401 and 403

Rule 401 defines what counts as “relevant” evidence: anything that makes a fact that matters in the case more or less likely. Rule 403 allows a judge to exclude relevant evidence if its value is substantially outweighed by risks such as:

• Unfair prejudice.
• Confusing the issues.
• Misleading the jury.
• Undue delay or wasting time.

In this context, even if counsel‑involvement evidence has some relevance to whether a defendant acted willfully, a judge can limit or exclude it if it would unduly mislead the jury into thinking the conduct was legally sanctioned when it may not have been.

F. Perlman Exception

Normally, only final decisions may be appealed. The Perlman exception allows a non‑party who owns privilege‑protected documents to immediately appeal an order compelling their disclosure:

• Because the documents are in the hands of someone else (here, Strong & Hanni), the owner cannot safely disobey the order to create a contempt posture for appeal.
• Without immediate review, the privilege would be irreparably lost once the documents are produced.

V. Impact and Future Significance

A. Clarifying the Law of Implied Waiver in the First Circuit

SpineFrontier meaningfully advances First Circuit law on implied waiver in the corporate context. It:

• Incorporates the In re Grand Jury Proceedings factors—alter‑ego, nature of disclosure, and prejudice—as a structured approach for assessing corporate waivers through executive conduct.
• Distinguishes sharply between full‑blown advice‑of‑counsel defenses (which presumptively waive privilege) and more limited involvement‑of‑counsel themes (which may not).
• Emphasizes that waiver should be found only where “logic and fairness” demand it, with concrete prejudice and a clear injection of privileged content into the litigation.

B. Practical Consequences for Corporate Criminal Cases

For corporate criminal cases (and parallel civil matters) in the First Circuit, this decision has several practical implications:

• Defense Strategy Flexibility: Individual executives may have greater latitude to suggest that counsel’s involvement supports their good‑faith or lack‑of‑willfulness argument, without automatically forcing the corporation to waive its privilege.
• Corporate Control of Privilege: Corporations can more credibly insist that their privilege remains intact, even when former or current officers seek to reference counsel in their defenses, especially where the corporation’s interests diverge from those of the executives.
• Government’s Access to Privileged Communications: Prosecutors cannot simply argue that any mention of counsel creates an implied waiver. They must show that the defense necessarily turns on the substance of privileged communications, and that no narrower remedy would suffice to prevent unfairness.
• Trial Management: District courts are encouraged to make careful, granular rulings on exactly what an executive may say about counsel’s involvement and where the line lies between permissible argument and privilege‑invading content, using Rules 401/403 and instructions as primary tools.

C. Guidance for Counsel Drafting Opinion Letters

The decision highlights the importance of clear, conditional opinion letters. Strong & Hanni’s letters:

• Explicitly stated that legality depended on compensation not being tied to volume or value of referrals.
• May operate as evidence favoring the government, undercutting any inference that counsel approved a volume‑based kickback scheme.

Going forward, outside counsel may:

• Draft more detailed assumptions and limitations to make clear that their opinions do not extend to undisclosed or contrary business practices.
• Better preserve the ability to argue, if litigation arises, that any misuse of their opinions by executives was based on misrepresentation of facts to counsel—not legal blessing of misconduct.

D. Unresolved Issues and Potential Future Litigation

The opinion leaves several important questions open, inviting future litigation:

• The precise criteria for when a non‑controlling executive (like a CFO without equity) can be deemed an alter‑ego for privilege‑waiver purposes in a closely‑held, thinly staffed company.
• The circumstances, if any, under which a criminal defendant’s Sixth Amendment rights might require breaching an unwilling corporation’s privilege.
• How district courts will operationalize the involvement‑of‑counsel / advice‑of‑counsel distinction at trial, particularly mid‑trial if a defense evolves.

VI. Conclusion

United States v. SpineFrontier, Inc. establishes an important limitation on implied waivers of corporate attorney‑client privilege in the First Circuit. It makes clear that:

• A corporate executive’s mere invocation of counsel’s presence or general involvement does not automatically waive the corporation’s privilege.
• Implied waiver arises only where the defense fairly places the substance of privileged communications in issue—effectively transforming an involvement‑of‑counsel theme into an advice‑of‑counsel defense.
• Before breaching a corporate privilege, courts must seriously consider whether the executive has authority to waive it and whether fairness concerns can be addressed through ordinary evidentiary tools rather than disclosure of privileged material.

By vacating the district court’s waiver order and remanding for a more nuanced, fact‑specific analysis, the First Circuit reinforces two core principles: corporate attorney‑client privilege is a serious protection that cannot be lightly overridden, and implied waiver remains an exceptional doctrine, triggered only when logic and fairness—concretely applied—leave no other reasonable alternative.