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Perhaps because I usually don't consult lawyers, I don't have a sense about how they provide legal information. I have this imaginary scenario in my mind.

Here is one of many possible examples. Imagine I ask a lawyer this question:

I'm in a bar. There is a rowdy guy standing next to me. He says to me "you wanna fight?" and smiles. I slap him in the face.

The lawyer happens to say: "Because he challenged you to a fight, you are permitted to hit him in this case."

Then the scenario happens in real life. I punch first. There are many witnesses. The guy says "I was only joking. I wasn't serious at all. It was only a question, not a threat". He wants to press charges for battery. It goes to trial. "Punching or striking another person is considered a crime of battery." I am convicted and sentenced to jail for punching him.

Question 1: would the charges be lessened if I say that my lawyer told me it was OK?

Question 2: is the lawyer now liable for damages?

Question 3: let's say the scenario was very different, involving something much more complicated, such as copyright law, or building code, or patent infringement. If the lawyer provides incorrect information, there could be civil or criminal penalties. In court, what effect would saying "but my lawyer told me it was OK" have?

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  • 3
    Isn't this the reason why its called "Advice" and not anything more solid?
    – MikeB
    Jan 30 at 12:23
  • 2
    Punching a person is assault and battery. Jan 30 at 21:23
  • Arguably the rowdy guy might be guilty of assault (putting you in fear), but provocation isn't a defence for assault in my jurisdiction.
    – user207421
    Jan 31 at 1:56
  • Consent ("he was asking for it") isn't much of a defence either. Jan 31 at 16:02
  • "I ask a lawyer a question..." - Is this your lawyer? (I.e. you have a lawyer/client relationship)... A lawyer in a bar you are talking to? A lawyer on TV giving general advice? A lawyer you overheard talking to someone else...
    – BruceWayne
    Jan 31 at 20:04

3 Answers 3

22

Question 1: would the charges be lessened, if I say that my lawyer told me it was ok?

Question 3: let's say the scenario was very different, involving something much more complicated, such as copyright law, or building code, or patent infringement. If the lawyer provides incorrect information there could be civil or criminal penalties. In court, what effect would saying "but my lawyer told me it was ok" have?

Usually, ignorance of the law is no excuse in a criminal prosecution. But, reliance on advice of counsel is a possible defense in the rare subset of criminal charges, like intentionally filing an inaccurate tax return, where knowledge of what the law requires is an element of the crime.

Battery is not one of those crimes, so advice of counsel would not be a valid defense to a criminal charge.

Advice of counsel (whether or not accurately understood) could be one factor among many that the judge could consider at a sentencing hearing when evaluating how seriously a convicted criminal defendant needed to be punished for the crime.

Question 2: is the lawyer now liable for damages?

This is an extremely fact specific inquiry.

A lawyer has liability for professional negligence if the lawyer through advice given or actions taken or not taken, in the context of a lawyer-client relationship, gives advice that falls below the standard of care of a reasonable lawyer in that situation, which causes reasonably foreseeable damages to the client, if no affirmative defense to the claim (like statute of limitations) is established.

Whether advice given, or actions taken or not taken, falls below the standard of care of a reasonable lawyer under the circumstances is a question to be determined on a case by case basis with testimony from other lawyers acting as expert witnesses.

Whether the advice, or actions taken or not taken, actually caused the harm is typically a question for a judge (in a bench trial) or a jury (in a jury trial) to decide on a case by case basis in light of all of the facts and expert testimony.

There are professional malpractice actions in criminal cases, but they are very hard to prevail in.

In the example in the question, there is a good argument that the advice that the lawyer gave was not incorrect, but that the client misunderstood what the lawyer was saying, so it is not likely that this would constitute legal malpractice.

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    The lawyer clearly said "you are permitted to hit him", what room for misunderstanding do you see?
    – Greendrake
    Jan 30 at 0:19
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    @Greendrake Clarity about what constitutes provocation, and subtle notions like "someone can say something but be joking and then it doesn't count as provocation."
    – ohwilleke
    Jan 30 at 0:59
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    @ohwilleke Is "provocation" really relevant? Is there a law that says it's okay to physically assault someone just because of verbal provocation? When I read the OP question I thought they were talking about a verbal agreement to fight, ie the defendant would argue that because they were "challenged to a fight", it was not a physical assault, but a friendly martial arts competition.
    – Stef
    Jan 31 at 9:55
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    For the benefit of OP (who mentions they don't usually consult lawyers): worth noting that lawyers very rarely give straightforward advice like "You are permitted to hit him in this case" - instead they say things like "This is an extremely fact specific inquiry" ;-)
    – psmears
    Jan 31 at 16:24
  • @Stef In the OP, the reason that the lawyer said it was O.K. to hit him was a form of provocation.
    – ohwilleke
    Jan 31 at 19:23
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It depends on the offense.

If the law turns on the question of whether you understood what you were doing was illegal, then you could assert an advice-of-counsel defense.

An assault charge rarely requires proof that you knew it was illegal to punch the other person, so I don't think your lawyer's advice would help you beat those charges.

It is possible that you would have a valid malpractice claim against your attorney, but I can see quite a few ways this case could fail. Was the lawyer's advice specific enough? Was your question clear enough? Given all the additional context that could not have been included in the hypothetical, would a reasonble person still have assumed that he was free to hit his fellow patron? Maybe, maybe not.

The answer could be quite different in other settings. A criminal charge of copyright infringement, for instance, requires that you infringe "willfully," which courts typically interpret to mean that you knew you were violating the copyright holder's rights. If you had the advice of an attorney telling you that you were not infringing, you have a valuable defense to assert.

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You don't need to ask a lawyer to have the common sense that hitting someone outside of the practice of martial arts is wrong. Faulty legal advice generally doesn't help you in a criminal case. So I will focus on Q3.

Your defense in civil cases, and some non-obvious criminal cases, will be called mistake of law. This is distinct from simple ignorance of law, which is only rarely a defense. Mistake of law means you knew the law, but interpreted it incorrectly, in a manner possible for a reasonable person.

Formally contracting a law professional for legal advice, and receiving faulty advice, can be solid evidence that a mistake of law was made. Asking a lawyer friend in a bar, or asking on StackExchange, is unlikely to be such.

A mistake of law can protect one from fines for incorrect or untimely filed forms, punitive damages, or other fines, especially in business. It will not, however, absolve one of the responsibility to pay the correct amount of taxes, cease copyright infringement, or bring that building up to code.

If your lawyer tells you Mickey's copyright has expired, and Disney wins the case that it hasn't, mistake of law will be good defense against punitive damages, but won't allow for continued distribution of the new work.

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