Practical Challenges in Asserting an Advice-of-Counsel Defense in a Federal Criminal Case: Proving Disclosure of “All Material Facts”

As we noted in a prior post entitled, “The Promise and Pitfalls of the Advice-of-Counsel Defense,” an individual accused of a federal crime may be able to take advantage of the good-faith reliance on advice-of-counsel defense.  The Eleventh Circuit’s pattern jury instruction on point requires that an accused attempting to assert this defense show, in part, that he sufficiently disclosed “all material facts” to a competent attorney.[1]

What are “material facts”?

Materiality is context specific; what is “material” in one case may not be in another.  And what is material now, may not have been material then.  As circumstances change, the legal significance of certain facts may change.

The Eleventh Circuit’s pattern instruction on the advice-of-counsel defense does not define the term “material facts,” though many other portions of the pattern instructions do; for example, numerous pattern instructions say: “a ‘material fact’ is an important fact – not some unimportant or trivial detail – that has a natural tendency to influence or is capable of influencing[.].”  See, e.g., Eleventh Circuit Pattern Jury Instruction, Criminal Cases, O11.2, O12, O36, O50.1, O51 (Jan. 2019).  Other pattern instructions define a “material fact” as “an important fact that a reasonable person would use to decide whether to do or not to do something.” See, e.g., id. at 043.  At times, the case law refers to disclosure of “relevant” facts, though there is no reason to believe that is a different standard.  See, e.g., United States v. Eisenstein, 731 F.2d 1540, 1543 (11th Cir. 1984) (“In order to take advantage of this defense, the defendant must show that he relied in good faith after first making a full disclosure of all facts that are relevant to the advice for which he consulted the attorney.”)

How I do prove “all material facts” were disclosed?

Ideally with a document showing full disclosure of the relevant facts in writing to a competent lawyer.  But many federal white-collar cases are not so straightforward; the conduct at issue is often the product of numerous discussions (written and oral) over time involving a variety of people.  In such cases, defense counsel may need to show the accused fully disclosed “all material facts” by piecing together various documents and witness testimony.  This can be challenging where circumstances evolved as the conduct at issue was under consideration, various lawyers were consulted along the way, and there is not a single lawyer who knew “all material facts” at any given point in time.  In some cases, key facts may have only been disclosed orally, or not explicitly disclosed at all and instead merely implied or understood.  In those circumstances, it is important to emphasize evidence showing the accused had a reasonable basis to believe the attorney knew and understood “all material facts” and still did not change the legal advice provided.  If applicable, it may be fruitful to show that the facts that were not disclosed in writing were not material during the relevant events.

Assuming I disclosed all “material facts” to an attorney, am I protected in a federal criminal case by the advice-of-counsel defense?

Not necessarily, for a few reasons:

  • The Eleventh Circuit’s pattern jury instruction on good-faith reliance on advice of counsel requires evidence, in part, that the attorney was “competent” to provide the advice at issue and that the accused “reasonably relied upon [the] advice in good faith.”  If an individual accused of a federal tax crime, for example, points to tax advice they received from a divorce lawyer as the basis for the defense, there may be questions about the competence of the lawyer to provide such advice and whether the accused could reasonably rely on it—regardless of whether “all material facts” were disclosed to the lawyer.
  • Further, the pattern instruction asks whether the accused followed the advice provided.  In practice, it may be difficult to determine the limits of legal advice, whether conduct exceeded the bounds of advice provided, and whether a lay client should have known that (or should have known when it was necessary to go back to the attorney for updated advice in light of changed circumstances).
  • The requirement that the accused “in good faith followed the advice of counsel” means, among other things, that a client cannot avoid being convicted of bank robbery by saying a lawyer advised that bank robbery was lawful.  But even in cases where the conduct is not plainly criminal (e.g., malum prohibitum crimes), and the accused undisputedly disclosed all facts to a competent attorney—not just material facts—we have seen the government challenge the accused’s right to receive a jury instruction on good-faith advice of counsel.  The basis for the objection?  That the accused and the attorney were in a criminal conspiracy, rendering the legal advice meaningless.

Asserting an advice-of-counsel defense in a federal criminal case can raise a host of challenging issues, which members of our federal criminal defense group have skillfully handled for years.  In a follow-up blog post, we will further examine materiality in the context of the advice-of-counsel defense, including the questions: Why is a layperson expected to identify “all material facts”? Isn’t that, at least in part, a lawyer’s duty?

[1] While disclosure of such facts is necessary to establish an advice-of-counsel defense, it is not sufficient.