5.9 Presumptions.
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FAQ
In asserting the advice-of-counsel defense a defendant is not saying it did not perform the act. Rather, it asserts that it acted in good faith, and therefore without mens rea (criminal) or knowledge (civil), due to reasonable reliance on advice from counsel.
The Ninth Circuit explained: A deliberate ignorance?or "willful blindness"?instruction is only relevant if the jury rejects the government's evidence of actual knowledge. United States v. Heredia, 483 F.
The deliberate ignorance instruction should be given only when evidence has been presented showing the defendant purposely contrived to avoid learning the truth. The defendant must deny knowledge and must engage in conduct which includes deliberate acts to avoid actual knowledge of the operant fact.
Reliance on counsel is but a means of establishing "good faith" or "due care." If a problem requires the use of professional advice of a nonlegal nature, obtaining and relying on such advice should also satisfy these requirements.
The ?advice of counsel defense? is typically raised as an Affirmative Defense to refute the allegation that the insurer acted in ?bad-faith? by showing that it retained expert legal counsel to specifically address the issues regarding the coverage of a property claim or settlement of a liability action.
The advice of counsel defense is based on the substance of legal advice provided by counsel: the defendant argues that there was no fraudulent intent because counsel advised that the disclosure in question was lawful.
2d 968, 973 (9th Cir. 1987). 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.
