Advice of Counsel

Advice of Counsel: Understanding Its Role and Application in Law

The “advice of counsel” defense is invoked in both civil and criminal cases, where the defendant claims they are not responsible for the crime because they acted on the advice of an attorney. Therefore they should not be held liable for their actions.

The Basics of the Advice of Counsel Defense

At its core, the advice of counsel defense is based on the premise that a layperson, unfamiliar with the complexities of the law, should be able to rely on the expertise of a trained legal professional.

The defense contends that if a person seeks advice in good faith from a qualified attorney, discloses all material facts to that attorney, and then acts in accordance with the attorney’s advice, they should not be held liable for actions later deemed illegal.

This defense is most commonly raised in cases involving issues of intent or knowledge of the law, particularly in areas such as fraud, securities law violations, and regulatory compliance. For example, a corporate executive accused of violating securities laws might claim that they were acting under the advice of their company’s legal counsel and had no intent to break the law.

Key Elements Required for the Defense

To successfully assert an advice of counsel defense, several key elements must be established:

1. Good Faith Reliance: The defendant must have genuinely sought the attorney’s advice in good faith. This means that the defendant must not have cherry-picked or manipulated the legal advice to justify actions they knew were illegal.
2. Full Disclosure of Material Facts: The defendant must provide the attorney with all relevant and material information. If the attorney was given incomplete or inaccurate information, the advice provided would not have been fully informed, and the defense may fail.
3. Qualified Counsel: The attorney providing the advice must be competent and qualified in the area of law relevant to the case. Seeking advice from someone unqualified, or whose expertise does not cover the pertinent legal issues, weakens the defense.
4. Following the Advice: The defendant must demonstrate that they followed the advice given by counsel. If the advice was only partially followed or disregarded altogether, the defense is unlikely to succeed.

Limitations of the Advice of Counsel Defense

While the advice of counsel defense can be powerful, it does not provide blanket immunity (also known as transactional immunity) from legal liability. First, ignorance of the law is generally not an excuse, and courts are often reluctant to allow defendants to entirely avoid responsibility simply because they consulted a lawyer. The defense is most persuasive when intent or willfulness is at issue, such as in cases involving fraud or regulatory violations where the law’s complexity makes legal interpretation more difficult.

Moreover, the defense may not apply if the defendant knew or should have known that the attorney’s advice was incorrect or unreasonable. A defendant cannot claim reliance on advice that was clearly flawed or offered by an attorney with an obvious conflict of interest.

Waiver of Attorney-Client Privilege

One significant consequence of invoking the advice of counsel defense is the potential waiver of attorney-client privilege. By raising this defense, the defendant effectively opens the door for opposing counsel to scrutinize communications with their attorney to determine whether the advice was truly followed and whether full disclosure of facts was made. This waiver can extend to all communications related to the advice given, not just selective portions favorable to the defendant.

A Counsel Trial Defense Can Be Complex

Using counsel defense in a trial to argue someone’s innocence can be a very complex matter and requires criminal defense lawyer Nate Crowley who understands the many nuances of the law, both state and federal that affect the usefulness of this defense.

The advice of counsel defense offers individuals and businesses a potential shield from liability, but it must be used carefully. To be effective, it requires proof of good faith, full disclosure, reliance on competent legal advice, and strict adherence to that advice. However, it is not a foolproof strategy and may carry risks, including the waiver of attorney-client privilege, which could expose sensitive communications to the court.

Did You Get the Wrong Advice From A Lawyer? Federal Criminal Defense Attorney Can Help.

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