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As far as I am concerned lawyers interpret, to the best of their ability, the law when giving legal advice to a client in a lawyer-client relationship.

Since some legal problems can be quite complex to deal, and as any other human everyone is prone to doing mistakes (some more than others), sometimes it might be a good idea to get more than just a single lawyer.

Still, even if a team of lawyers might be reasonably reassuring (and expensive) in practice, my question out of curiosity is:

Without having committed nor being accused of committing anything illegal, is there any way, to get legal advise, so one can determine the most desirable way to proceed in doing something legally, where it's confirmed then and there that such choice is indeed currently abiding or not to law, and being clear of any future accusations/charges of its legality at the time of doing so (not clear forever since the law can change)?

What I'm asking is not if I can sign a contract with a lawyer that says something like: "I'm going to do this which was told to be legal by this lawyer and if it's found in the future that it actually isn't legal it's the lawyer's fault and not mine".

What I am asking is if, for example, there is the (paid) option to get a confirmation from a government/state/court/jurisdiction (whatever it may be) representative, to look into the legal advise, or give the legal advise theirself, and confirm its legality.

So that instead of legal advise from a lawyer, it's legal confirmation from the authorities that could in the future prosecute you for that same thing they confirmed was abiding the law.

I'm asking on my presumption that if a lawyer in a lawyer-client relationship fails to give correct legal advise, even if unintentionally, the legal consequences are on the client.

  • Any edits and suggestions are welcomed. – user7393973 Jan 28 at 16:28
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    Not from a lawyer, but in a prospective tax situation, one can get a private ruling letter from the IRS General Counsel (actually that is a lawyer, just not your lawyer). There is a large cost and process for that. – Damila Jan 28 at 18:24
  • In German law there is a "Feststellungsklage", where a court rules, if some legal situation is the case. This is also mostly binding for other courts. But you need a special interest in getting such a "Feststellung", so most times this is no option. – K-HB Jan 28 at 19:31
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    There is no lawyer that would sign that contract. Even if they did, it wouldn't absolve you of guilt, you can't make a contract for something illegal. – Ron Beyer Jan 28 at 19:52
  • @RonBeyer I specified that I am not asking that. What I am asking is whether there is a way to confirm if something is legal or not without margin for human doubt (since lawyers are not the ones that make the law or that can prosecute if it is found to be illegal). – user7393973 Jan 28 at 20:04
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Yes. You go into the court of relevant jurisdiction, and file a lawsuit to "quiet the question".

Usually there is a counterparty who has something to say on the subject; sometimes not. If there is an apparent counterparty, they must be served notice of all aspects of the case.

Let's say I manage a pipeline property management company; we are wholly owned by a pipeline company and we buy the land and lease it to said pipeline company. I need a parcel of land to complete a pipeline connection, and as part of my offer I gently remind the landowner, Beth, that we do have the legal right to take the property by eminent domain, with the hopes this will inspire them to a sensible price. Beth says "Bunk! Your LLC doesn't run any pipelines! You don't have eminent domain rights! 500% market price, or go away." Well.

So, for the sake of moving the negotiation along, I go to court and ask the judge to quiet the question of whether we have eminent domain rights. Mind you, I don't go any further than that; I don't want to actually take it by eminent domain if I can talk Beth out of a consensual sale.

The judge will, of course, suspect this applies to an imminent case, and will ask... so I might as well disclose the Beth situation. As such, I will have to serve Beth and keep Beth fully in the loop, so that Beth has full right to make the other side of the argument. Since it could affect others as well, the judge will probably also require publication in whichever newspaper handles legal notices. (Many newspapers are propped up financially by being official legal-notice organs for their county. They have six pages of editorial content, and 18 pages of legal notices and other ads.)

Most likely, the judge will cowardly refuse to rule on whether a pipeline's land holding company has eminent domain, and simply rule that the pipeline company itself does, and could simply buy the land itself then transfer it to my company as a trivial, taxless transaction. So the judge would grant eminent domain conditional on that transaction being done. Beth then offers 133% of market which we haggle to 120% of market + legal fees. Good enough!

  • Or, Beth refuses, in which case we file an eminent domain action in the same court and before the same judge; being already aware of the facts of the situation, there is nothing left to litigate, and the gavel drops quickly and predictably.

This is how "quieting a question" works. It is somewhat less confrontational with the counterparty, since you are going to court, sort-of together, to resolve a hypothetical question; once we know whether we are on solid legal footing, we then are able to continue negotiating. Courts love this, because they really want people to negotiate and make consensual settlements.

And if a party insists on filing a suit to on the quieted matter, they can pay their filing fees and lawyer fees to get a lecture: "we already resolved this." (Or alternately, to present new facts which mean the past ruling is no longer on-point; e.g., Beth discovers we don't want the land for a pipeline at all, but for an access road.)

You can also do this with the IRS. This is called a Private Letter Ruling, and it will set you back a $750 filing fee (and legal costs, of course). You'll still get audited, but then you wave the Ruling in front of them and done.

Doing this preemptively in a criminal matter would be adventuresome. Your biggest problem would be the press: it would be impossible to do this discreetly, as the case would be fascinating; and it would put every cop and prosecutor on notice that you have a mind to do the potentially illegal thing.

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  • How does this fit with the fundamental idea that courts do not rule on theoretical cases, only actual disputes. Other than the case of an IRS private letter can you cite a "quieting a question" case? Regarding the constitution "An actual controversy is a constitutional requirement (Found in found in Art. III, Section 2, Clause 1) for federal courts that demands there be a real dispute between two parties capable of being resolved by the court, as opposed to a hypothetical case brought in an attempt to get the court to issue an advisory opinion." – George White Jan 29 at 6:08
  • @GeorgeWhite: I've usually seen the phrasing, "declaratory judgment." It is, as you state, very close to the border between resolving a dispute vs providing an advisory opinion. Where it often comes up is in civil law where a party A declares, "Action X is forbidden" and some party B says to the court, "I'm planning to do Action X." Here, there is a legitimate dispute, even though the dispute is ostensibly not actionable since party B has not yet done action X. – Brian Jan 31 at 0:38
  • True - that does not make this answer correct. It talks about cases were only one party is involved. That would not be constitutional. – George White Jan 31 at 0:47
  • @GeorgeWhite: True, though the other party can sometimes be the government, especially if there is evidence that the government intends to enforce a law against a specific company, due to that company's current or planned actions. An example that comes to mind would be YouStake suing the SEC to try to get out of legal limbo in terms of whether their current business constituted selling securities. Both the lawsuit and the investigation were dropped, so the legal question was never answered in court. – Brian Jan 31 at 1:05
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In the US, you cannot generally get a guaranteed (enforceable) legal promise, period. You may be able to negotiate a specific deal with a government prosecutor, where you testify about some matter in exchange for a binding promise to not be prosecuted for an act that you already performed. But let's say I wanted to transport a box of non-functioning machine guns from point to point, and I wanted a binding legal opinion as to the legality of doing this (basically, if it's non-functioning, does it meet the definition of "machine gun" under the law?). You might ask the state Attorney General for an opinion – but unless you are a legislator or some similar government official acting in an official capacity, the AG will not give you an opinion. You cannot pay for a private opinion from the AG.

It might be possible to sue the government over a particular law, when a law improperly restricts your rights. It is not necessary that you actually be arrested and prosecuted in order to sue over an unconstitutional law. If your actions have been restricted in a manner that harms you (you can't grow your food), and this is because growing your own food was outlawed, where the court could declare the no-growing law unconstitutional, then you would have standing to sue, without the need to first break the law and be prosecuted.

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  • I guess that's how things work at this moment in time. All right, thanks once again. – user7393973 Jan 28 at 20:58

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