Can "Advice from Counsel" be used as a defence?

mrcheez · 30-09-2022 9:44pm #1

If you discussed something with a team of solicitors, including a barrister, and they told you X (even though it may later transpire it isn't necessarily correct), and that advice was the reason an action was taken.

Can that be used as a defence?

30-09-2022 9:51pm

https://www.boards.ie/discussion/2058265556/can-advice-from-counsel-be-used-as-a-defence

I suppose that more or less anything can be put up as a defence. (Of course whether or not it is successful is a different thing altogether.)

mrcheez · 30-09-2022 10:48pm

I mean could it be viewed as "You acted in good faith based on (what could be regarded as) a legal expert's opinion" ?

Victor · 01-10-2022 2:53pm

The law is technical. If you have broken the law, you have broken the law. However, I think mens rea will come into it.

If you come up with a scheme where you can earn lots of money and the purpose of you seeking the legal advice was to make sure you don't break the law, but you inadvertently did break the law, then I suspect the court may have some sympathy for you and might keep the repercussions at the lower end of the scale.

If you come up with a scheme where you can earn lots of money, and the purpose of you seeking the legal advice was to see how far you could push things legally, and lots of people feel ripped off, then I suspect the court will have very little sympathy for you.

If you come up with a scheme where you can earn lots of money, and the purpose of you seeking the legal advice was to get fabricated advice with the purpose of contriving exoneration, and lots of people feel ripped off, then I suspect the court will throw the book at you. And the lawyers are going to be investigated as co-conspirators and additionally face professional disciplinary proceedings.

Donald Trump · 01-10-2022 3:29pm

https://www.boards.ie/discussion/comment/119689048#Comment_119689048

I don't think that mens rea is relevant to the OP. It appears more to be a case of bad advice. An argument along those lines would be the same effect as "I was ignorant of the law and didn't know it was illegal". It might have some weight with regard punishment. Mens rea is only relevant for establishing guilt or not.

coylemj · 02-10-2022 2:34pm

https://www.boards.ie/discussion/2058265556/can-advice-from-counsel-be-used-as-a-defence

Look at it this way: If that was a valid defence, everyone would be trying it on. But the problem is that you cannot force a solicitor or barrister into the witness box to divulge what he/she told you. Because they could and would refuse to answer any questions, based on attorney/client prvilege.

You may say: 'but it would be in their client's interest to answer the questions' and that may be true but that would certainly not apply when it came to the cross-examination. Which is why your lawyer would clam up and refuse to answer any questions about your consultation.

So it would be an empty defence and worth about as much as a character reference from your spouse.

mrcheez · 03-10-2022 3:49pm

https://www.boards.ie/discussion/comment/119692202#Comment_119692202

It isn't my lawyer that gave the advice, it was a different firm I used for a consultation (I didn't have a lawyer at the time). The firm advised me that a contract clause wasn't valid, so I then did actions based on that advice. But later on I did my own research that suggested the advice may not have been correct and the clause may in fact be valid.

A decision on the validity hasn't yet been decided on in court (it may turn out they were correct after all), but just in case they were wrong I wanted to get opinions on how the interaction with the first firm and how it guided me might be viewed when a judgement is handed down.

I have emails as evidence so a witness testimony wouldn't be required, though I suspect I wouldn't have permission to produce these in court.

03-10-2022 4:04pm

https://www.boards.ie/discussion/comment/119696403#Comment_119696403

It seems reasonable to suggest that in every case that goes to court regarding how a contract clause should be interpreted, 50% of the legal teams involved will be proven correct while the other 50% will be wrong. Of course, it the verdict is appealed to a higher court, it may turn out the the legal team that was originally found to be correct is now wrong and vice-versa!

The key thing to remember is that both sides will get their fees.

mrcheez · 03-10-2022 5:42pm

https://www.boards.ie/discussion/comment/119696454#Comment_119696454

Could the emails from the other legal team be used as evidence that I was "advised" to follow a certain course of action? Or would they need to grant permission?

Also would a judgement be lessened based on the fact I was ignorant of the validity myself and followed the advice of a legal team that were au fait with the specifics more than I was, rather than if I acted knowing full well it was against the rules?

coylemj · 03-10-2022 5:59pm

Also would a judgement be lessened based on the fact I was ignorant of the validity myself and followed the advice of a legal team that were au fait with the specifics more than I was, rather than if I acted knowing full well it was against the rules?

In a civil case, I can't see how it could. If the judgement goes against you, the other side is entitled to his remedy and the scope and size of the remedy will not be lowered or mitigated because you got bad legal advice. If you go into court and suffer a loss or that loss is greater because you got bad legal advice, you have to sue the people who gave you that advice. But as poster Ologist has pointed out above, in every case there is a winner and a loser and it does not follow that the losing side got bad legal advice.

Even if you can find someone to take on the case, suing a legal firm for bad advice will be an uphill and very expensive battle. With probably a low chance of success.

Marcusm · 03-10-2022 6:44pm

https://www.boards.ie/discussion/comment/119692202#Comment_119692202

But that’s rubbish as a client is entitled to waive privilege meaning the lawyer is entitled to respond to any question which is lawfully demanded, such as in response to a summons, subpoena, letters rigatory etc.

it’s clear from the later posts that this is not relevant here but it is important to challenge he the assertion that a client cannot gave his legal advice given in evidence.

Claw Hammer · 04-10-2022 2:46pm

The other party to the contract who is seeking damages cannot get lower damages because of your inadequate legal advice. If you were given advice which was wrong, followed it and suffered loss as a result the only thing you can do is sue the solicitor and barrister who gave you the wrong advice and force them or their insurers to compensate your for your loss.

The only exception ironically is a solicitor who engages a barrister is not liable to the client if the barristers advice is wrong.

AndrewJRenko · 04-10-2022 2:49pm

https://www.boards.ie/discussion/comment/119696403#Comment_119696403

If we’re talking civil contracts, why would you need a defence? Is someone sueing you over the contract?

Fian · 04-10-2022 2:51pm

https://www.boards.ie/discussion/comment/119697035#Comment_119697035

I agree, the privilege belongs to the client not the lawyer and the lawyer could not refuse to answer questions about the advice they gave where the cleint has waived privilege (or in this hypothetical would actually be the one asking the questions.)

coylemj · 04-10-2022 3:10pm

https://www.boards.ie/discussion/comment/119700220#Comment_119700220

A client who waives privilege and allows his lawyer to be cross-examined in the witness box would be a very stupid client. Because if attorney/client privilege is waived then everything is on the table.

mrcheez · 04-10-2022 4:22pm

https://www.boards.ie/discussion/comment/119700213#Comment_119700213

Discussion of specifics isn't allowed in this forum afaik... would be regarded as "legal advice"

dennyk · 04-10-2022 5:26pm

https://www.boards.ie/discussion/comment/119696403#Comment_119696403

If you agreed to a contract in bad faith under the assumption that one of the terms you were agreeing to in that contract actually couldn't be enforced, that is not likely to work out well for you if it turns out that the term in question is actually enforceable.

mrcheez · 04-10-2022 5:43pm

No it's more to do with whether a clause was STILL valid... not about the status of it when the contract was signed

cheese sandwich · 04-10-2022 5:53pm

https://www.boards.ie/discussion/comment/119696826#Comment_119696826

The fact you were advised one way or the other is neither here nor there. Advice is just that - you’re not obliged to follow it.

The most you could look for would be an action in negligence against your former lawyers - but that’s a very high bar to meet. Reasonable advice given in good faith is not going to be grounds for a successful negligence claim.

mrcheez · 04-10-2022 6:02pm

It's interesting though.. you often hear people say "Get professional legal advice" .. but they really need to caveat that as "Get professional legal advice (just bearing in mind that the advice you get may not actually be right and can't be 100% trusted so...eh... you're really back to square one)"

cheese sandwich · 04-10-2022 6:14pm

https://www.boards.ie/discussion/comment/119701084#Comment_119701084

But how could it be 100% certain?

When matters are contentious, it’s because the two sides differ on the correct legal position and usually because the correct position is not absolutely clear. The role of lawyers is to advise the client and represent them if instructed to do so. But no serious lawyer is ever going to say that his advice is 100% certain.

mrcheez · 04-10-2022 6:31pm

sure, it's just a caveat you don't often hear. In non-legal forums you hear people say "Get legal advice" but it doesn't occur to most to take the legal advice you paid €300 for, but then make your own mind up about whether to follow it to the letter or not.

See the Landlord forum for example.. that phrase is used ad nauseum, but it might not occur to most that the advice they get could get them in hot water.

AndrewJRenko · 04-10-2022 8:52pm

https://www.boards.ie/discussion/comment/119700641#Comment_119700641

I'm not looking for the specifics, just the broad scenario. Assuming this is all a civil matter, if someone sues you for actions you took as a result of legal advice, your reasons for doing whatever you did aren't really relevant. The real question is whether your action caused a loss to them.

If you end up having to pay out to them, as a result of getting some bad legal advice, then you could take an action against your legal advisor to cover that loss. You could go through the LRSA legal complaint service, or just take a further legal action (if you can find another legal advisor to take a case against your original legal advisor).

Marcusm · 04-10-2022 9:08pm

https://www.boards.ie/discussion/comment/119700325#Comment_119700325

Again, untrue. The waiver of privilege can be limited to the particular points or questions. I have practical experience of this having waived privilege of some legal advice given to me in a banking context for the purposes of making relevant disclosures. The waiver was extremely limited as the core of the advice was never to be disclosed to the other side (a government body).

dennyk · 05-10-2022 10:55am

https://www.boards.ie/discussion/comment/119701210#Comment_119701210

In the end the law is not black and white. A solicitor can provide advice on the most likely outcome in some hypothetical legal situation, but they can't predict with 100% certainty what will happen.

https://www.boards.ie/discussion/comment/119700976#Comment_119700976

So what you said was:

The firm advised me that a contract clause wasn't valid, so I then did actions based on that advice. But later on I did my own research that suggested the advice may not have been correct and the clause may in fact be valid.

That sounds to me like you signed a contract agreeing to certain terms, then you knowingly violated one of those terms that you had previously agreed to because you believed it was not enforceable. If your belief was incorrect and the term in question is valid, then you have in fact knowingly breached a valid contract and you'd probably be liable for any contractual penalties or damages. The fact that you committed the breach believing that the term wasn't valid is not likely to have any bearing on the matter; your reason for breaching the contract won't matter in most cases, only the fact that there was a breach of contract which resulted in a financial loss for the other party.

If your solicitor actually advised you to commit the breach, it's possible you might have a claim against them for any losses you suffered as a result of following their explicit advice. That would be a separate matter, however, unrelated to the dispute between you and the other party to your contract; that other party has still suffered a loss due to your breach and would need to be made whole. I strongly doubt that your solicitor actually advised you to breach a contractual agreement in so many words, though. If they simply informed you that a particular term was more likely than not to be deemed invalid, then unless that statement was unequivocally and provably false, they most likely wouldn't be responsible for your actions. It would still have ultimately been your decision to take the gamble and breach the contract on the basis of the information your solicitor provided, and it would be entirely your responsibility if it didn't go your way.

mrcheez · 05-10-2022 11:38am

knowingly breached a valid contract

This is the issue I was counselled on.. the contract may no longer have been valid.

Counsel said it wasn't though my own research later suggested it might have been (and that's what the other side are claiming). Again it'll be up to the court to decide later.

There's also the fact the other side breached the contract before me, but that's another story.

btw is it true that court hearings are fully booked up for a year due to Covid backlog? Can't believe how long it takes to bring a case to court.