Good-Faith Reliance upon Advice of Counsel

State:
Multi-State
Control #:
US-JURY-11THCIR-S18-CR
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Word
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Description

Pattern Jury Instructions from the 11th Circuit Federal Court of Appeals. For more information and to use the online Instruction builder please visit http://www.ca11.uscourts.gov/pattern-jury-instructions

Good-Faith Reliance upon Advice of Counsel is a legal defense to certain allegations of wrongdoing. It is based on the premise that a person acted in good faith and in reliance on the advice of a lawyer qualified in the relevant field of law. This defense is applicable when a defendant demonstrates they relied in good faith on the advice of a lawyer who is qualified in the relevant field of law, and the advice was relied upon to the defendant's detriment. There are two main types of Good-Faith Reliance upon Advice of Counsel: subjective and objective. The subjective version requires the defendant to prove that they had an actual good faith belief in the advice provided by the lawyer. This may be difficult to prove, as it requires the defendant to show that they reasonably believed that the advice provided was correct. The objective version only requires the defendant to show that a reasonable person, in the same circumstances, would have relied on the advice of counsel. This version may be easier to prove, as it does not require the defendant to prove that they had an actual good faith belief in the advice provided. Regardless of the version utilized, in order for the defense to be successful, the defendant must demonstrate that they relied on the advice of counsel and that the advice was relied upon to their detriment. The advice provided must also be reasonable and related to the matter at hand.

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FAQ

The advice of counsel defense is based on the substance of legal advice provided by counsel: the defendant argues that there was no fraudulent intent because counsel advised that the disclosure in question was lawful.

The ?advice of counsel defense? is typically raised as an Affirmative Defense to refute the allegation that the insurer acted in ?bad-faith? by showing that it retained expert legal counsel to specifically address the issues regarding the coverage of a property claim or settlement of a liability action.

In asserting the advice-of-counsel defense a defendant is not saying it did not perform the act. Rather, it asserts that it acted in good faith, and therefore without mens rea (criminal) or knowledge (civil), due to reasonable reliance on advice from counsel.

Reliance on counsel is but a means of establishing "good faith" or "due care." If a problem requires the use of professional advice of a nonlegal nature, obtaining and relying on such advice should also satisfy these requirements.

Definition: Advice of counsel refers to the guidance given by lawyers to their clients. It can also be used as a defense in certain legal cases where a party seeks to avoid liability or punishment by claiming that they acted reasonably and in good faith on the advice of their attorney.

2d 968, 973 (9th Cir. 1987). In order to assert advice of counsel, a defendant must have made a full disclosure of all material facts to his or her attorney, received advice as to the specific course of conduct that he or she followed, and relied on the advice in good faith.

More info

Reliance on counsel is but a means of establishing "good faith" or "due care. " If a problem requires the use of professional advice of a nonlegal nature, obtaining and relying on such advice should also satisfy these requirements.According to the majority view, acting in good faith upon the advice of counsel is not a defense to an action for criminal contempt. Evidence that the defendant in good faith followed the advice of counsel would be inconsistent with such an unlawful intent. Good faith reliance on counsel can be a criti cal line of defense for the accused in whitecollar prosecutions where. Reliance on the advice of counsel is but one factor to be considered in determining whether an insurer did, or did not, act in bad faith. This ruling allows a defendant to introduce derivative advice of counsel to establish his own good faith, i.e. Not Reliance on Advice of. Counsel, but Evidence of. It must be sought and acted upon in good faith and full disclosure.

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Good-Faith Reliance upon Advice of Counsel