The Advice of Counsel Defense

April 5, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

Lawyers are meant to guide laymen through the complex labyrinth of the legal system. However, sometimes lawyers give bad advice. This bad advice might be as negligible as being wrong on a minor point, or big enough to convict. In the worst situations, it can cause crime. In this blog post, we’ll explore the Advice of Counsel Defense and how it can help your criminal case.

What is the Defense?

Under Florida law, when a defendant commits a specific intent crime, it can be a defense that the crime was committed based on a good faith belief that it was not illegal based on advice a lawyer gave you.

What is a Specific Intent Crime?

This defense can only be used as a defense if you have been charged with a specific intent crime, as opposed to a general intent crime.

A specific intent crime is one where the State must prove a specific intent that the defendant had while committing the crime. It means that the defendant committed the act in order to achieve some end result (ex: murder). Generally, specific intent criminal statutes will list an intent the defendant must have, like knowingly, maliciously, intentionally, willfully, purposefully, etc. Therefore, the State must prove that the defendant possessed the intent listed in the statute during the commission of the crime.

Here are some specific intent crimes:

• First-degree murder
• Robbery
• Arson
• Burglary
• Conspiracy
• Solicitation
• Embezzlement
• Forgery
• Larceny
• False pretenses
• Child molestation
• Attempt

General intent, on the other hand, merely requires that the defendant intended to commit an act barred by law.

Proving the Defense

In order to successfully put forth the Advice of Counsel defense, the following must be proven by witness testimony:

1. All of the relevant facts of the actions the defendant took were disclosed to the lawyer;
2. The defendant relied on the lawyer’s advice in good faith; and
3. The defendant was not aware that the lawyer’s advice was incorrect.

If you can properly assert this defense, it will serve as a complete defense to the specific intent crime charged.

Case Example

Huff v. State discusses the applicability of this defense. The defendant, James Huff, was charged with violating RICO laws, conspiracy to commit RICO, organized scheme to defraud, operating a boiler room, twelve counts of first-degree grand theft, five counts of grand theft, fifty-four counts of sale of a security by an unregistered dealer, and fifty-four counts of fraudulent transaction in the sale of a security. After being acquitted on the boiler room charge, he was convicted of the other charges.

The lower-level court barred Huff from presenting the advice of counsel defense. In a pretrial proceeding, the prosecution filed a motion in limine to preclude Huff from presenting any evidence pertaining to his advice of counsel defense. The judge granted the motion in limine as to the general intent charges, but not all of the specific intent charges. At another hearing before a different judge, the prosecution renewed its motion in limine, and the judge, without giving any explanation, granted the State’s motion as to all of the charges.

The 2^nd District ruled, in this case, that the second judge’s decision was in error. The court plainly states that “[a]dvice of counsel can be a valid defense to specific intent crimes.” The court stated that, because the trial court precluded the defendant from presenting his defense that he relied on the advice of counsel, the court reversed his convictions for the strict intent charges.

Tallahassee Criminal Defense Attorney

It’s incredibly important to get good advice. But, when you get bad advice and rely on it, make sure you know if it could provide a defense. Contact a Tallahassee criminal defense attorney as soon as possible to ensure every defense is explored in your favor. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of trial experience and will provide zealous representation. Call us today at (850) 681 – 7777 or send an online message to discuss your legal matter during an open and free consultation with an attorney on our team.

Written by Gabi D’Esposito

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