Is it any kind of valid defense or mitigating circumstance or anything along those lines if a person can credibly claim that they believed an illegal action to be legal on advice of a lawyer?
(not legal advice)
Seems to have worked for Bush and Cheney.
Thanks, is exactly what I was wondering.
and were off …
Reliance on advice of counsel is a factor when considering things such as whether an insurer acted in bad faith. (it’s a bit more complicated, of course). In the types of scenarios you probably had in mind, no. The sentencing judge might very well view it as a mitigating factor (if believed ) but it would not usually be a legal defense to a criminal charge. (I’m sure there are exceptions, but none come to mind).
Actually, that’s a good example.
Would the theoretical lawyer who gave the bad counsel be held accountable for whatever crime occurred? If not, it seems there’s a loophole where a criminal act can disappear.
“I’m not guilty because my lawyer told me it what I was doing was legal. And my lawyer’s not guilty because he didn’t do it.”
Even if he’s not criminally liable, it seems the lawyer should be facing disbarment.
He could certainly face professional misconduct charges, Criminal not so much. Depending on the juridiction, he could probably be sued. Of course it depends on the circusmtances. If the advice was good when given, but bad due to change in circumstances; say the charge is importation of substance “X” without a permit, when at the time advice was given “X” could be imported without a permit then the lawyer will be treated a lot less harshly (though he might be asked to explain why he did not advise his client of the change).
I agree that generally* it will not be a defence to a charge; ignorance of the law is not a defence. It would however be a major mitigating factor.
*Outside of cases where good faith is a defence or which require bad faith as part of mens rea.
Say the law changed several months or years after the client consulted the lawyer and the lawyer said it was legal, would a lawyer really be expected to check for legal changes on old legal consulting files (all of them?) in case the law has changed so he can alert the client of legal changes? He would be expected to do monitoring on legal developments relating to his files for free?
My limited experience is that if you ask me if something is legal as of September 13th 2011, I’ll tell you if it’s legal as of September 13th 2011. If you want me to occasionally check if the law has changed and alert you, that monitoring will have to be agreed upon as an extra, whether or not I find something.
[Moderator Note]
brocks, political jabs are not permitted in GQ. No warning issued, but don’t do this again.
Colibri
General Questions Moderator
The answer is that it depends. If I am engaged as in-house counsel or on a retainer the yes definatly, it would be my duty to tell you the law has changed, If on the other hand I have only been instructed by you once or on a case by case basis then no.
I agree with this. It comes up in insurance issues all the time. It’s called the “advice of counsel defense” and it must be asserted in good faith. You cannot pass every stupid decision by a guy with a bar card who says: “no coverage, no defense” in a two sentence memo without analysis.
I wondered about this with respect to the torture memos, which we would think might bring criminal charges, not civil, as in insurance. Suffice to say that a lawyer who advised a criminal scheme during the planning stage rather than the trial stage, is subject to being charged as a member of the conspiracy, in my opinion. Tom Hagen from The Godfather, was subject to being charged as a criminal. You cannot claim attorney client privilege when planning a crime or civil fraud with a member of the bar. That is the crime fraud exception to the attorney client privilege.
Yes.
If your lawyer happens to be a public official acting in an official capacity when advising you, then apparently yes. This was discussed in the recent thread here on whether cops can lie to you. It’s called entrapment by estoppel and has been recognized as a defence in the United States.
That would be if its done with the express purpose of getting you to do something which is illegal which you would otherwise not do.
This is actually a good example, politic values aside.
The link says that the defence is valid when “willful” is part of the requirement for a crime to be commited.
In the case of waterboarding, or applying electricity to the testicles (one of which is, on the advice of government lawyers, not torture ) IANAL but I think the actual act is the offense, not the intent behind it; The question is, should a reasonable person have known that X was torture?
Whereas in a complex case of fraud or insider trading, if you asked the lawyer “in these circumstances, am I legall allowed to do X with my stock sales?” and the lawyer says “yes”, then you did not intend to deceive or violate SEC rules - in many such cases, intent is a key element of the offense.
Of course the persons liable for torture charges would be the CIA operatives. There’s a real morale builder, we ordered you to do X then 4 years later we charge you with torture; “only followink orders” is not a valid defense. Whether the command chain would also be liable - theoretically they should, passing on orders you should know to be illegal is not a defense; however if the lawyer told you the act was OK… this gets us into the “jury nullification” thread too.
Can you talk about the Martha Stewart case then. On the face of it seems like there was a technical piece that the ordinary person would not have known about. Ingorance of the law is no excuse but IIRC it was expected that she should have known this piece and therefore it was willful.
Is anything that I just said germane to your point?
IIRC:
Martha Stewart was not convicted of insider trading. There was not enough evidence… basically the inference “he knew, he called you at 1PM, you sold the stock at 1:30PM… duh!” You can’t convict solely on the basis of duh. Only two people know what was said. She had a plausible if suspicious story why she sold. (“Sell if it falls to $60”).
She was convicted of obstruction of justice and lying to investigators. Apparently prosecutors wanted to charge her with stock manipulation - “she took out ads, lied by saying she was innocent, in order to push up her company’s stock.” Even the judge did not buy that story; prosecutors have a habit of throwing every charge possible in the hope even one will stick, or the perp will see the chance they’ll go to jail for up to two lifetimes and try to make a deal instead. The prosecutors also threatened to throw the book and one of the clerks in her broker’s office (“he must be lying when he backs up your $60 limit story”) thus offering to destroy some low-paid schmuck’s life and career if she did not plead guilty… in the fine tradition of Duke Lacrosse prosecutors everywhere…
Part of the argument was that as a former stockbroker Martha should have know that trading on inside info was illegal. Hence, she would be held to a higher standard than someone who heard a rumor on the street. Also, she was convicted of obstruction in one case for erasing details of the phone call in a computer daytimer log. She thought about it, and 45 minutes later typed it back in. The erasure was still “obstruction of justice”. Again, she knew what she was doing and what she could and could not do - she would have been aware when she did it that it was destroying evidence. (Don’t recall what the “lying to investigators” details were.)
So it does not really fall in the category of “my lawyer said I could”, but she had the background to know the intricacies of the law, so she did not have the option of appealing to the jury with “I did not know I shouldn’t do that”.
I reminded of the Doonesbury cartoon, where Phil Slackmeyer had been arrested for some financial crime. He was making the argument that the law in this area was so complicated that it was impossible for him to know whether or not what he was doing was illegal. And the investigator said, “You were handed somebody a paper bag full of money in a dark alley.” And Phil said, “Okay, I had my suspicions.”