Criminal Defense Lawyers

Good Faith Reliance on Counsel

When Following Your Lawyer’s Advice Lands You in Federal Court Anyway

You did exactly what your lawyer told you to do. You disclosed everything. You asked if it was legal. Your attorney said yes.

And now the FBI is at your door with an indictment. Your facing federal charges for conduct that your attorney approved—conduct you beleived was completely lawful becuase a licensed attorney told you so.

Look, here’s the deal: “good faith reliance on counsel” sounds like it should be a get-out-of-jail-free card, but the federal goverment doesn’t see it that way. Prosecutors will argue you should have known better, irregardless of what your lawyer said. Their gonna claim you didn’t really rely in good faith, or that you didn’t tell your attorney the whole story, or that the advice wasn’t specific enough.

This article explains what good faith reliance on counsel actually means in federal criminal defense, when it works (and when it definitly doesn’t), and the massive traps that can destroy your case if you assert this defense incorrectly. Understanding your options right now could mean the diffrence between walking free and spending years in federal prison.

What “Good Faith Reliance on Counsel” Actually Means (And What It Doesn’t)

The advice-of-counsel defense is based off a simple principle: if you genuinely beleive your conduct was legal becuase an attorney told you it was, you can’t have the “willful” criminal intent required for conviction. The Ninth Circuit’s model jury instruction puts it this way: “A defendant who reasonably relies on teh advice of counsel may not be convicted of a crime which involves wilful and unlawful intent.”

But here’s what alot of defendants don’t realize—this defense doesn’t work for all crimes. It only applies when the federal statute requires proof of willfulness or specific criminal intent. Tax crimes? Yes, those typically require willfulness, so good faith reliance can negate intent. Environmental regulations with strict liability? No, your state of mind doesn’t matter irregardless of what your lawyer said.

The defense don’t apply to every situation just becuase a lawyer was involved. Let’s clear up some common confusions:

This is NOT the same as ineffective assistance of counsel. People mix these up all the time. Ineffective assistance (the Strickland v. Washington test) is about challenging your conviction on appeal becuase your lawyer did a bad job. That requires proving two things: (1) deficient performance and (2) prejudice. That’s a mute point here—we’re talking about relying on good legal advice, not suing your lawyer for malpractice after conviction.

This is also not the Wade-Gilbert rule, which is about you’re right to have an attorney present during certain pre-trial procedures like lineups. Totally diffrent concept.

And critically—the advice has to be about teh conduct you’re charged with, not advice about your criminal case after you’ve already been caught. If your facing charges and you hire a criminal defense attorney who says “you have good defenses,” that’s legal advice about you’re case. Its not advice you relied on before taking the actions the goverment is prosecuting. The reliance has to come first, before or during the conduct, not after your already under investigation.

Bottom line: this defense requires that you genuinely beleived you were acting lawfully based on specific legal advice from an attorney, and that belief negated the willful intent the goverment must prove. If the crime doesn’t require willfulness, or if you got the advice after-the-fact, this defense ain’t gonna work.

The Four Elements You Must Prove (Plus the Secret Fifth One Nobody Tells You)

According to federal case law and legal scholarship, asserting an advice-of-counsel defense requires proving four specific elements. Miss even one adn the defense fails completely:

• Full disclosure of all relevant facts to your attorney – You told your lawyer everything that mattered
• Requested legal advice – You specifically asked if the conduct was lawful
• Received advice that the conduct was legal – The attorney told you yes, its legal
• Relied on that advice in good faith – You genuinely beleived and acted on what the lawyer said

Sounds straightforward, right? Here’s the thing—each element has traps that prosecutors use to destroy the defense. And their’s a secret fifth element that no one tells you about upfront: contemporaneous written documentation.

Let’s talk about teh first element: “full disclosure.” This is where alot of defendants get wrecked. The standard isn’t that you disclosed what you thought was relevent—its that you disclosed everything that actually turned out to be relevent, even facts you had no way of knowing mattered at the time.

See the trap?

Your expected to disclose facts you didn’t know were legally significant before getting advice on what’s legally significant.

For all intensive purposes, prosecutors will comb through your case looking for any detail—any email, any side transaction, any conversation—that you didn’t specifically mention to your attorney. Then their gonna argue: “If your lawyer had known about that, the advice would of been different.” Doesn’t matter if that detail seemed irrelevent to you at the time. The prosecutor will claim it should of been disclosed, and therefor you didn’t make “full disclosure,” and therefor the whole defense fails.

The “good faith reliance” element is similarly rigged. Prosecutors argue you didn’t really rely in good faith if: the deal seemed to good to be true, you should of gotten a second opinion, the lawyer wasn’t an expert in that specific area, or the legal landscape was “too unsettled” for reasonable reliance. They’ll use hindsight—knowing the conduct turned out to be illegal—to argue you’re reliance wasn’t “reasonable.”

Now here’s the secret fifth element that isn’t written in the statute but is absolutely neccessary in practice: contemporaneous written documentation of the advice. If it isn’t in writing, it didn’t happen—at least not in the jury’s eyes.

Think about it from teh jury’s perspective. Your facing serious federal charges. Your claiming “my lawyer said it was okay” years after the fact. The prosecutor asks: “Where’s the email? Where’s the memo? Where’s the opinion letter?” If you say “it was an oral conversation,” the jury thinks your lying or misremembering. Without a written record—an email, a formal opinion letter, a memo to file—contemporary juries simply won’t beleive the advice was ever given, irregardless of you’re testimony.

This is why sophisticated clients demand written opinions before major transactions. Its not just for their records—its becuase they know that oral advice, no matter how genuine, won’t hold up in federal court years later when prosecutors are challenging every detail.

Not All Legal Advice is Created Equal: Why In-House Counsel Won’t Save You

So you got legal advice. Great. But from who? Becuase the source of teh advice matters just as much as what it said, and this is where alot of defendants make a fatal mistake.

If you relied on advice from your company’s in-house general counsel or compliance officer, I hate to tell you this, but your basically screwed.

Here’s why: juries view in-house counsel as part of teh business, not as independent advisors. Recent federal case law shows prosecutors successfully argue that in-house lawyers are financially motivated to approve agressive or questionable conduct becuase they’re employed by the company.

Real talk: when your company’s general counsel—someone who’s salary depends on keeping the business running—tells you a transaction is legal, the jury hears “the employee who gets paid to say yes said yes.” That ain’t the kind of independent legal advice that negates criminal intent.

Outside counsel is diffrent. An independent law firm that you’re paying for a specific legal opinion has credibility. Their not on your payroll, their professional reputation is on the line, and they have no financial stake in whether they say yes or no to you’re question. Juries understand this distinction, even if its not explicit in teh statute.

But even outside counsel advice can fail if its to general. You can’t rely on generic compliance training or legal guidance about “this type of transaction” in the abstract. The advice has to be specific to teh actual conduct your charged with.

Let me give you an example that shows the diffrence:

Generic advice that won’t work: “Our lawyers trained us on anti-money laundering regulations” or “We had legal guidance on these types of financial transactions” or “Our compliance department approved similar deals before.”

Specific advice that might work: “I sent our outside counsel the exact terms of the proposed transaction, disclosed all material facts including the counterparty’s background, and recieved a written opinion letter stating that this specific transaction complied with applicable federal law.”

See the diffrence?

The government will argue that general compliance advice—no matter how extensive—doesn’t qualify becuase it wasn’t about THIS deal, THIS counterparty, THESE facts. And kinda makes sense when you think about it—lots of corporate defendants attended compliance training and still committed crimes. The training didn’t prevent the conduct, so it obviously didn’t create genuine good faith reliance.

By in large, if your relying on in-house counsel or generic compliance advice, you need to understand that’s probably not gonna survive prosecution scrutiny. You need specific, written advice from independent outside counsel about the exact conduct your being charged with. Anything less is an escape goat waiting to fail.

The Privilege Waiver Trap: Why This Defense Might Destroy Your Case

Now we get to the most messed-up part of the advice-of-counsel defense, the part that makes alot of defendants wish they’d never heard of it.

Asserting this defense waives attorney-client privilege—not just for the specific advice you’re claiming, but for all communications related to the subject matter.

Let me be clear about what this means in practice. Once you claim “I relied on my lawyer’s advice,” the goverment gets access to:

• Every email you sent to your attorney about the transaction
• Every email your attorney sent back
• All drafts, memos, and notes your attorney made
• Follow-up questions you asked and answers you recieved
• Any related communications about similar transactions or issues
• Internal law firm communications about your case

And here’s the kicker—you can’t undo the privilege waiver once its asserted. Even if you later decide to abandon the advice-of-counsel defense, you’ve already waived privilege. The prosecutors have already seen everything. Its like un-ringing a bell—you can’t make them forget what their now allowed to use against you.

Look, here’s the deal: your attorney-client privilege exists to protect you. Its one of the most powerful shields you have. And this defense requires you to destroy that shield, hand all you’re private communications to the very prosecutors trying to convict you, and hope they don’t find anything that makes you look worse.

What could go wrong?

Everything.

The prosecutors will comb through every communication looking for:

Inconsistencies between your testimony and the documentary record. You say you disclosed everything to your lawyer? But here’s an email where you didn’t mention a key fact. You say you beleived it was legal? But here’s a draft where your attorney expressed concerns and you pushed back. Any tiny discrepency between what you claim and what the emails show will be used to destroy you’re credibility wiht the jury.

Evidence of other potential crimes. The waiver isn’t limited to the specific charge your facing—its waived for all communications about related subject matter. Those communications might reveal OTHER questionable conduct, OTHER transactions that weren’t previously on the goverment’s radar. You might waive privilege to defend against one charge and inadvertantly give prosecutors evidence for three more.

Statements showing you didn’t really rely in good faith. Maybe you got the legal advice but then privately expressed doubts. Maybe you shopped around for a lawyer who would give you the answer you wanted. Maybe you selectively followed some advice and ignored other warnings. Any evidence that you’re reliance wasn’t genuine—even informal comments in emails—will be used to argue you didn’t actually have good faith.

And then their’s the most shocking part: your attorney will be called as a prosecution witness.

Once privilege is waived, prosecutors will subpoena your lawyer to testify. And here’s what defendants don’t understand—your attorney’s duty is to tell the truth, not to back up your version of events.

Even a supportive, well-meaning attorney who thinks you genuinely relied in good faith might give testimony that undermines your defense:

“Did the defendant disclose X fact to you?” “No, I don’t recall that being mentioned.”

“Was your advice as unqualified as the defendant claims?” “Well, I expressed some caveats and concerns about the regulatory gray area.”

“Did you tell him it was definitly legal?” “I said it was my opinion that it likely complied with current law based on the facts as I understood them at the time, but…”

Those qualifications—perfectly reasonable from teh attorney’s perspective—can destroy the defense. The jury hears “the lawyer wasn’t sure” and decides you couldn’t of reasonably relied on uncertain advice. Or the lawyer’s memory differs from yours in some detail, and the jury decides your not credible.

I mean, seriously: You’re creating a situation where the goverment calls YOUR lawyer—the person you trusted, who you thought was on your side—to testify for the PROSECUTION. And you can’t do nothing about it becuase you waived the privilege.

You basically handed prosecutors a witness who knows everything about you’re case and is legally obligated to tell the truth regardless of how it effects you.

At the end of the day, asserting the advice-of-counsel defense is kinda like this: you have to destroy the protection of attorney-client privilege, give all you’re private legal communications to the very people prosecuting you, and hope—hope—that they don’t find anything they can use to bury you.

And the worst part?

They probly will find something, becuase no case is perfect, no communications are flawless, and prosecutors are very, very good at finding weaknesses.

The privilege waiver issue is so serious that some defendants with legitimate reliance claims choose not to assert the defense simply becuase the risk of what prosecutors will find is to great. Its a paradox: you might have a valid defense, but using it could make things worse.

And here’s the final trap within the trap: “reasonable reliance” is judged by the jury with the benefit of hindsight. Their sitting in a courtroom, they already know the conduct was illegal (otherwise you wouldn’t be on trial), and prosecutors are arguing you’re a criminal. In that context, the jury is evaluating whether you’re reliance was “reasonable”—but their doing it while knowing the answer was actually no, it wasn’t legal.

So the prosecutor asks the jury: “Even if the defendant’s lawyer said it was okay, should a reasonable person have known this was to good to be true? Should they have gotten a second opinion? Should they of been more skeptical?”

And the jury, with perfect hindsight, often says yes—you should have known better, irregardless of what your attorney told you.

This is the emotional gut-punch that defendants face: You did what your lawyer said. You tried to do it right. And the system is designed to punish you anyway.

Timing Traps and Technical Landmines That Kill the Defense

Even if you have legitimate reliance on counsel, timing issues can completly destroy the defense. The advice must be obtained BEFORE you take the action—not after, not during, before. And this trips up alot of defendants who think they can paper over past conduct with retroactive legal approval.

Here’s the scenario prosecutors love to attack: You structure a transaction, you execute the deal, everything’s done. Then—maybe becuase your worried, maybe becuase its good business practice—you ask a lawyer “was this okay?” The lawyer reviews it and says “yes, this appears to comply with applicable law.”

You think you’ve got an advice-of-counsel defense.

You don’t.

That’s an after-the-fact legal opinion, not advice you relied on before acting. You can’t get a retroactive blessing from an attorney and claim it negates intent. The reliance has to be prospective—you get the advice, then you act based on it. Not the other way around.

By in large, if you did something first and asked if it was legal later, that timing dooms the defense. The two-element framework courts use requires both full disclosure AND good faith reliance—and you can’t rely on advice you didn’t have yet when you took the action.

There’s also specificity requirements that trip up defendants. The advice has to be about this specific transaction, not general guidance about similar situations. For example:

Doesn’t work: “Our lawyers gave us compliance training on export controls, and based on that training, I thought this sale was okay.”

Might work: “I sent the specific details of this proposed sale—including the buyer’s identity, the end-use destination, and the technical specifications—to outside counsel and recieved a written opinion that this particular transaction was exempt from export licensing requirements.”

The diffrence is everything. Generic training or general legal principles aren’t specific enough. The advice must address the actual conduct your charged with, based on the actual facts as they existed.

And then their’s the documentation requirement we touched on earlier. Without contemporaneous written proof of the advice, juries don’t beleive it existed. Oral advice—even if it genuinely occured—is just your word against the prosecutor’s argument years later.

Here’s what you need:

• Written opinion letters from counsel
• Email exchanges showing you disclosed facts and recieved advice
• Memoranda documenting the consultation
• Anything with a date stamp proving the advice came before the conduct

If you can’t produce written documentation, the defense probably won’t survive. Juries are skeptical of defendants who claim “my lawyer told me it was fine” but have no emails, no letters, nothing to prove it. In the jury’s mind, if it was really that important, if you really relied on it, wouldn’t you have gotten it in writing?

Long story short: timing matters, specificity matters, and documentation matters. Miss any of these technical requirements and the advice-of-counsel defense will wreck havoc on your case instead of saving it.

When This Defense Actually Works (And When You Should Run Away From It)

Let’s be honest—we’ve spent alot of time on why this defense fails. So when does it actually work?

The defense works best in complex regulatory schemes with ambiguous legal requirements. Tax law is the classic example. Federal tax crimes require willfulness, the tax code is notoriously complex, and legitimate uncertainty about tax treatment is common. If you disclosed all relevant financial information to a qualified tax attorney or CPA, recieved written advice about a specific transaction’s tax treatment, and genuinely relied on that advice in filing your returns, you’ve got a viable defense.

The defense also works in securities and financial regulation cases where the law is genuinely unsettled. New financial instruments, novel business structures, emerging markets—these are areas where even experts disagree on legal requirements. If you sought independent outside counsel’s opinion on a cutting-edge issue, got detailed written analysis, and relied on it in good faith, that’s the kind of case where advice-of-counsel can succede.

Truth be told, here’s the profile of a case where the defense might actually work:

• Genuinely complex or ambiguous legal area – not obvious fraud
• Written opinion from qualified outside counsel – not in-house, not oral
• Complete disclosure of material facts – documented in the record
• Prospective advice obtained before conduct – not retroactive blessing
• Specific advice about the charged transaction – not general training
• Clean privilege waiver – no bombshells in the communications that will hurt you
• Attorney willing and able to testify credibly – supports your version

If you’ve got all that? The defense might work.

But here’s when you should absolutly run away from this defense:

When you relied on in-house counsel only. We covered this—juries don’t credit company lawyers. If that’s all you have, try and find a different defense strategy.

When the advice was oral with no documentation. Without written proof, its your word against the prosecutor’s skepticism. You’ll loose.

When you got the advice after the conduct. Retroactive legal opinions don’t negate intent. Period.

When waiving privilege will reveal other problems. If there’s anything in your attorney communications that could hurt you—concerns you ignored, facts you didn’t disclose, shopping for favorable opinions—asserting this defense will hand that evidence to prosecutors. Don’t do it.

When the conduct is obviously wrong. If a reasonable person would of known it was illegal irregardless of legal advice—like bribing a government official or running a pyramid scheme—claiming “my lawyer said it was okay” just makes you look worse. The jury won’t buy it.

When the crime doesn’t require willfulness. Strict liability crimes, regulatory violations that don’t require intent—the advice-of-counsel defense is irrelevent to these. You could of had ten lawyers tell you it was legal, and it wouldn’t matter if the statute doesn’t require proof of willful intent.

Fact of the matter is, sometimes the best defense strategy is NOT asserting advice-of-counsel even if you did rely on legal advice. The risks—privilege waiver, attorney testimony, hindsight bias from the jury—might be greater then the potential benefit.

Alternative strategies might include:

Challenging the government’s evidence directly without raising advice-of-counsel, preserving privilege while attacking whether they can prove the charged conduct occured.

Arguing lack of willfulness based on complexity of law without specifically invoking attorney advice—just showing the regulations were so complicated that willful violation couldn’t be proven beyond reasonable doubt.

Negotiating a plea agreement that reflects your good faith efforts to comply, using the attorney consultation as a mitigating factor in sentencing rather then as a trial defense.

Your defense attorney can help evaluate whether the advice-of-counsel defense is the right strategy for you’re specific situation, or whether alternative approaches carry less risk. The key is making that decision before you waive privilege, becuase once its waived, you can’t get it back even if you abandon the defense.

What You Need to Do Right Now

If your facing federal charges and considering an advice-of-counsel defense, the window to protect yourself is closing. Every day without a comprehensive defense strategy is a day prosecutors are building their case against you.

Here’s what you need to do immediatly:

Don’t talk to prosecutors or investigators without counsel. Anything you say about what your attorney told you, when you consulted them, what advice you recieved—all of that can be used against you to undermine the defense before you even assert it.

Preserve all documentation. Find every email, every memo, every written communication with your attorney about the conduct. Find the opinion letters, the legal analysis, the advice you recieved. This documentation is critical to the defense, and you need to compile it now before anything gets lost or deleted.

Don’t waive privilege without consulting experienced federal criminal defense counsel. We’ve explained the massive risks of privilege waiver. Before you assert this defense, you need a lawyer who understands those risks to review all of you’re attorney communications and assess whether waiving privilege will help or destroy your case.

Evaluate timing and documentation. Be honest about whether you have what the defense requires: prospective written advice from qualified outside counsel about the specific charged conduct, based on full disclosure. If you don’t have those elements, this defense probably won’t work irregardless of you’re good faith.

Consider alternative defense strategies. Your attorney should be evaluating multiple approaches—not just advice-of-counsel, but every possible defense, every weakness in the goverment’s case, every mitigating factor. Don’t put all you’re eggs in one basket, especially one as risky as waiving privilege.

The stakes couldn’t be higher. Federal convictions carry serious prison time, massive fines, and consequences that follow you for life. You need experienced counsel who understands the nuances of advice-of-counsel defenses, who can evaluate whether its the right strategy for you’re case, and who can protect you from the privilege waiver trap that destroys so many defendants.

Don’t wait. Don’t assume “I followed my lawyer’s advice” is enough. And definitly don’t try to navigate these issues without an experienced federal criminal defense attorney who’s handled these defenses before and understands all the landmines.

Call now. Right now. Your on tender hooks, I understand, but this is exactly the kind of situation where delay is dangerous. We’re here 24/7 to evaluate your case, review you’re situation, and build the defense strategy that gives you the best chance of protecting your freedom.

The goverment has unlimited resources and doesn’t care that you tried to do things right. You need counsel who will fight for you with the same intensity—and who understands that good faith reliance on counsel ain’t just a legal defense, its you’re life on the line.