The “advice of counsel” defense can be an effective legal defense when used properly in white collar criminal cases. This defense will likely be used in the case of United States v. Bankman-Fried, 1:22-cr-00673, which is set for trial in the United States District Court for the Southern District of New York. This trial relates to the failed FTX cryptocurrency exchange and cryptocurrency hedge fund and its allegedly fraudulent relationship with Alameda Research.
The “advice of counsel” defense is often used in high-profile cases such as the upcoming Bankman-Fried trial because, when used right, the defense team can use it to negate the intent element of a specific intent crime. A specific intent crime is a criminal act that is carried out with the intent to achieve an additional result. Common examples include wire fraud, embezzlement, or money laundering.
This defense is deep-rooted in our judicial system. A defendant who reasonably relies on the advice of counsel may “not be convicted of a crime which involves willful and unlawful intent.” Williamson v. United States, 207 U.S. 425, 453 (1908). In order to assert advice of counsel, a defendant must have made a full disclosure of all material facts to his or her attorney, received advice as to the specific course of conduct that he or she followed, and relied on the advice in good faith.
Beggs & Lane regularly counsels clients with some of the most challenging legal matters. This includes an analysis of possible defenses to raise during litigation and investigations.
Matthew P. Massey is a Partner in the White Collar, Government Investigations, and Special Matters Group. He is a former Assistant U.S. Attorney with the U.S. Attorney’s Office for the District of Columbia and represents businesses and individuals in high stakes matters including federal criminal defense and white collar crimes.