"My lawyer told me it was legal" <-- If credible, can this count in favor of a defendant?

Factual Questions
21

What the Doonesbury comic gets to is that the advice of counsel defense is most credible when the legal analysis at issue is technical or arcane. Ignorance of the law is no excuse as a rule, but society recognizes that some laws are really difficult to understand and comply with in every particular. And in those instances, someone who made an honest effort to comply – not just by giving it the ol’ college try but by seeking advice from one apparently competent to give it – is not as culpable as someone else.

That said, it does create perverse incentives, as the “best” legal analysis in the corporate setting is always render the broadest, most loosy-goosy opinion that’s even remotely credible. That gives your client the most freedom to act in contravention of the purpose of the regulation which, by definition, means that the population at large is protected less than the law should. And so long as it’s not blatantly wrong advice, it’s not malpractice – professionals are charged with giving reasonable advice, not correct advice. Plus, who would sue you for malpractice anyway when your opinion kept the client from paying thousands in fines that he should have.

–Cliffy

22

FWIW, I remember seeing ex-DA and attorney general Eliot Spitzer on TV (I believe on Bill Maher) claim that that defense that you were given incorrect advice by your lawyer was hard to overcome when it was made by the Bush admin.

23

I don’t want to sidetrack this into a thread about the Bush administration but I can see that as a general principle it would be hard for a President to claim he was unaware that his actions might be illegal. A President is going to be acting under massive amounts of public scrutiny. Anything he does will be closely scrutinized and criticized. Any possibility of illegality will be raised by his opponents.

So a President is going to have a hard time making a good faith argument that it never occurred to him that what he was doing was possibly illegal. Because the special prosecutor will point out that the possibility that he was breaking the law was the cover story of Time magazine that week.

24

Note that this would never be a valid defense for strict liability offenses (eg., statutory rape, manslaughter, DUI, speeding) since intent is not a required element (and hence willfulness cannot be required).