St. Denis & Davey, P.A.

Legal Malpractice Issues

Understanding the “advice of counsel” defense

| Dec 20, 2018 | Legal Malpractice Law |

People in Florida rely on lawyers to know and correctly interpret the law. Most would never believe that acting on the advice of their attorneys could potentially lead to legal troubles, yet what happens if it does? There is a valid legal defense that some claim in these situations known as “advice of counsel.” Essentially, this represents situations where one has disclosed all of the facts to an attorney regarding the legality of their actions, and were subsequently assured by said attorney that no laws were being broken. It would then seem reasonable to assume that with such an assurance, one would have never viewed their activities as being illegal. 

This defense has been used in several high-profile cases, including a recent one related to a scandal involving President Donald Trump. The President has been accused of authorizing illegal campaign finance contributions to women believed to be former mistresses to buy their silence regarding alleged affairs. Yet the President claims to have believed his actions did not constitute violations given he was following the advice of his attorney Michael Cohen (who has recently been convicted on charges related to the incident). According to Business Insider, however, the “advice of counsel” defense would not apply in this case if both the President and Cohen had a shared understanding of the intent of the action. 

Furthermore, the American Bar Association points out that by citing the “advice of counsel” defense, one waives the right to attorney-client privilege. Claiming this defense suddenly draws scrutiny to the attorney-client communication process, and to prove that a defendant’s claim is legitimate, some or all elements of that process become open to review. In the President’s case, this could mean exposing information between himself and Cohen that had previously been deemed confidential due to this privilege.