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LawHelpNow
LawHelpNow, Attorney/Lawyer
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In criminal law, is following the advice of your attorney a

Customer Question

In criminal law, is following the advice of your attorney a "legal defence"?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  LawHelpNow replied 5 years ago.

Hello and thanks for choosing Just AnswerTM. I am a licensed attorney, and I will be glad to try and assist you. To assist in providing you with accurate information, could you please clarify this point:

 

  1. What jurisdiction (federal or which state) is involved?

 

Once I hear back from you, I will be glad to let you know my answer. There may be some delay as I am assisting other customers or am away from my computer. Please rest assured, however, that I will get back to you as soon as possible.

 

Thanks!

Customer: replied 5 years ago.

 

The jurisdiction is state (California). I followed his advice and was charged with a crime. He still believes it is not a crime.

Expert:  LawHelpNow replied 5 years ago.

Hello and thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.

 

  1. I am a licensed attorney, and I will be glad to try and answer your question. I hope that the following information will be helpful to you, but please just write back if you have any follow-up questions or need clarification on anything after reviewing the following information. Thank you for taking the time to supply the additional request information, which was helpful to my analysis of your issue.
  2. As a general matter, mistake of law is a defense sometimes raised in criminal cases, although rarely with any success. It is a longstanding principle of public policy that "ignorance of the law is no excuse", so a person who commits a crime with the firmly-held, but mistaken, belief that the proposed act is permitted will nonetheless be held liable as a criminal.

  3. Now, as to your specific situation unfortunately the news is not very encouraging under California case law. It is no defense to a crime that the defendant did not realize he or she was breaking the law when he or she acted. (People v. Vineberg (1981) 125 Cal.App.3d 127, 137.) This is true even when the defendant claims he or she was acting in good faith on the mistaken advice of counsel. (People v. Snyder (1982) 32 Cal.3d 590 [defendant's mistaken belief, based on attorney's advice, that prior conviction was a misdemeanor no defense to felon in possession of a firearm]; People v. McCalla (1923) 63 Cal.App. 783, 795 [reliance on advice of counsel not a defense to illegally issuing an instrument under Corporate Securities Act]; People v. Honig (1996) 48 Cal.App.4th 289, 347-48 ["the defense of action taken in good faith, in reliance upon the advice of a reputable attorney that it was lawful, has long been rejected. The theory is that this would place the advice of counsel above the law, and would also place a premium on counsel's ignorance or indifference to the law"]; People v. Smith (1966) 63 Cal.2d 779, 792-93 [no defense to felony murder that defendant did not know that entering a store intending to pass a forged check constituted burglary in California].)

  4. As a practical matter, this defense is very much disfavored under California law. If you wish to, you can avail yourself of the State Bar of California lawyer discipline and complaints system. I am sorry for your situation, and I hope things work out for you as best as possible.

 

I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.

If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.

The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.

LawHelpNow, Attorney/Lawyer
Category: Criminal Law
Satisfied Customers: 7591
Experience: Relax. Let's work together. Practical solutions.
LawHelpNow and 7 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.

Thank you, XXXXX XXXXX I brought this defence up was because I remember Senator Quomo in years past used this defence in NY state. I could be mistaken.

I'm involved in an admistrative law case (Alcohol Beverage Control) I represent myself, pleadings were filed and a hearing was set. In what I thought was a settlement conference the parties met and discussed monitary settlement.The alleged victims(respondents) secretly advised their friends the police and they arrested me for attempted extortion, violation of California penal code 524.

Expert:  LawHelpNow replied 5 years ago.

You are quite welcome. It was my pleasure to be of some help.

 

I do hope things turn out alright for you in this matter.

 

Take care and thanks again for using JustAnswer®.

LawHelpNow, Attorney/Lawyer
Category: Criminal Law
Satisfied Customers: 7591
Experience: Relax. Let's work together. Practical solutions.
LawHelpNow and 7 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
I was aquitted of all charges. Some of the issues the judge considered were that Califorinia Government Code 11415.60 allows for monetaty settlements. That attempted extortion requires "specfic intent" and that there was none by way of the fact that I consulted with an attorney before the "settlement conference". Thank you very much.
Expert:  LawHelpNow replied 4 years ago.

Hello again,

 

I do recall your case, and it was a pleasure interacting with you and to be of some service.

 

Thanks so much for letting me know the outcome. How nice to find out what transpired -- something that does not often happen in this online forum.

 

Congratulations!

 

Take care and thanks again for choosing JustAnswer®!

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