But My Lawyer Told Me

There is a seemingly uncontroversial, general sentiment amongst lawyers and laypersons that a client is "entitled to believe and trust advice of counsel," as one member of the bar recently put it on national television. Counsel's advice has no doubt informed the risk/benefit calculus in many boardroom discussions and even provided the basis for the belief that a proposed course of action is legal. When counsel's advice is inaccurate or erroneous, the client-requestor can be left flat-footed and feeling led astray by their attorney. Enter the little used but recently ascendant advice of counsel defense, which can provide an avenue to introduce evidence of good faith under a narrow set of circumstances in order to counter the government's claims of criminal intent.

Traditionally, California state and federal courts have followed a similar foundational test before permitting the evidence of counsel's advice. Federal courts continue to analyze four basic elements; the accused "[1] made a complete disclosure to counsel [concerning the issue], [2] sought advice as to the legality of [their] conduct, [3] received advice that [their] conduct was legal, and [4] relied on that advice in good faith." Markowski v. S.E.C., 34 F.3d 99, 105 (2d Cir. 1994) (citing S.E.C. v. Savoy Industries, Inc., 665 F.2d 1310, 1314 n.28 (D.C. Cir. 1981)); United States v. Munoz, 233 F.3d 1117, 1132 (9th Cir. 2000). If the defense can show this, the Court may permit the jury to hear the evidence and argument, and debate whether, acting on that advice, there is reasonable doubt that the accused formed the necessary criminal intent to commit the crimes charged. Critically, advice of counsel is not an affirmative defense. The defendant never has the burden to prove it or introduce supporting evidence; it merely serves to negate the mens rea element of the prosecution's case.

A variant of this accepted formal framework is the informal or "partial" advice of counsel defense, of which courts have been highly skeptical. Rather than requiring any of the four formal elements, the partial defense turns on the involvement (some might suggest mere presence) of counsel in the decision-making process to a degree that it can be argued by the accused as being blessed as legal. Howard v. SEC, 376 F.3d 1136, 1147-48 (D.C. Cir. 2004). The informal/formal distinction is not minor. In its formal assertion, there is a recognized partial waiver of the attorney-client privilege following the classic mantra that privileged communications may not be used as a sword and shield. Plainly, the accused may not claim that they acted on the attorney's advice but withhold relevant evidence that may support or defeat that claim. However, criminal defendants have sought to maintain the shield when raising the informal theory because in that context, it is not direct advice that underpins the defendant's beliefs but knowledge that an attorney was present at critical junctures.

The informal/partial version made recent headlines when Sam Bankman-Fried unsuccessfully sought to invoke it and argue the involvement of counsel during his trial on charges related to the collapse of FTX. The court proceeded cautiously, prohibiting mention of counsel's involvement during opening statements. After ordering Bankman-Fried to preview his testimony outside the presence of the jury, the court precluded the evidence because it would not directly address the indictment's criminal offenses and would unduly confuse the jury.

The formal version has been at the forefront recently as former President Donald Trump's defense has frequently cited some variation of following legal advice from his "attorneys" - including at least "one esteemed scholar" (John Eastman) - in the days leading up to Jan. 6, 2021. Legal commentators have speculated that asserting this defense will be ultimately unsuccessful; however, given the unique circumstances, it is impossible to tell how the court will rule.

As perhaps best exemplified by Mr. Trump's circumstances, advice of counsel defenses are fraught with all sorts of issues, not the least of which is the waiver of the attorney-client privilege. Beyond the central Trump-Eastman interactions, the government can comfortably look to precedent in arguing that many presumptively privileged communications between Trump and his various attorneys should be disclosed so as to assess the defense in its full context. For those keeping score, at least 25 attorneys cited the privilege throughout the Special Counsel's investigation into election interference. That Mr. Trump received advice contrary to Eastman's would be a significant blow to the defense. Moreover, it is highly likely that Eastman and other attorneys - including Rudy Giuliani and Sidney Powell - are amongst the unnamed co-conspirators in the indictment. That attorneys were involved in assisting the alleged offenses is yet another thing the defense would need to overcome in establishing the elements of the formal defense. Mr. Trump's team has until the Court-ordered deadline of Jan. 15, 2024, to decide whether it will pursue the defense and risk exposing the communications of the "very, very wise and learned counsel" whom he had consulted.

It is relevant that Mr. Trump was apparently well familiar with the advice of counsel defense. Just five years ago, in response to the early run-up of the investigation into hush-money payments made by his former attorney, Michael Cohen, Mr. Trump expressly raised "advice of counsel" and began tweeting against Mr. Cohen. The bad luck of consistently obtaining bad advice (from different attorneys on different issues and the 2020 election) may buttress the argument that, rather than good faith reliance, Mr. Trump lawyer-shopped after the election until he found the advice he wanted.

As the former President's case makes clear in asserting this argument, it is critical to clearly establish that the intent was always to avoid wrongful conduct in the first stance, not to clothe the conduct with the word of a friendly practitioner, esteemed scholar or not, who possesses a valid bar card and is willing to bless a plainly illegal act.

Michael J. McCarthy is an attorney and a member of the White-Collar and Government Investigations team at Kendall Brill & Kelly LLP.