Advice of Counsel Defense

Overview of the Advice of Counsel Defense

The advice of counsel defense is an affirmative defense that negates criminal intent by demonstrating that the defendant relied in good faith on legal advice. The defense is commonly asserted in white-collar crimes, including fraud, securities violations, and tax evasion cases​.

Legal Standard

To successfully assert this defense, the defendant must prove the following elements​​:

1. Full Disclosure – The defendant must have disclosed all material facts to the attorney before seeking advice. Partial or misleading disclosures weaken the defense.

2. Good Faith Reliance – The defendant must have sought and relied on the advice in good faith. If the defendant knew or should have known the advice was improper, the defense fails.

3. Reasonableness of Reliance – The reliance must be objectively reasonable. Courts may consider the expertise of the attorney, the clarity of the legal advice, and whether the defendant had independent knowledge suggesting the advice was incorrect.

4. Lack of Intent – The defense negates the necessary mens rea for criminal liability. However, it does not apply if the defendant knowingly engaged in illegal conduct despite legal advice.

Case Law Interpretations

Courts have ruled on the advice of counsel defense in various contexts:

• United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181 (2d Cir. 1989): The court rejected the defense where executives failed to provide attorneys with full and accurate information.

• United States v. Cheek, 498 U.S. 192 (1991): The Supreme Court acknowledged that good faith reliance on counsel can be a defense to willfulness in tax evasion cases.

• United States v. Lindo, 18 F.3d 353 (6th Cir. 1994): The court emphasized that intent remains a key issue, and reliance on an attorney’s advice does not shield defendants who act with fraudulent intent.

Limitations of the Defense

• Waiver of Attorney-Client Privilege – Raising this defense may waive privilege regarding communications with counsel. Courts may require disclosure of all related attorney-client discussions​.

• Inapplicability to Strict Liability Crimes – The defense does not apply to offenses that do not require intent, such as certain regulatory violations.

• Government’s Burden – The government may counter this defense by demonstrating that the legal advice was incorrect, obtained under false pretenses, or ignored by the defendant.