Reliance on a Lawyer's Mistaken Advice - Should it Be an Excuse from Criminal Liability?
51 Pages Posted: 5 Apr 2002
Date Written: March 2002
The presumption that every person knows the law is no longer an absolute presumption of law. Over the years, many legal systems have drifted away from the strict rule, based on that presumption, that mistake of the criminal law is no excuse. Nevertheless, it continues to be the case that mistake of the criminal law (including ignorance of the law) requires special legal arrangements. The excuse granted because of mistake of the criminal law is more limited than that granted because of mistake of fact.
In this article I propose to examine whether, current approaches to the problem of mistake of law, mean that a person who relied on the mistaken advice of a lawyer can and should be excused from criminal liability. The answer to that question requires that we re-examine the traditional rationales for the rule that mistake of law is no excuse (Part I). The dilemmas raised by reliance on a lawyer's mistaken advice, is elaborated in Part II, where it becomes clear that the traditional rationales cannot entirely be abandoned. My conclusion is that no excuse should be granted for relying on a lawyer's mistaken advice. Whether that conclusion can be reconciled with the requirement of culpability is discussed in Part III. In this context, those cases in which reliance on a lawyer's mistaken advice should be recognized due to a negation of the special mental element of the offense are identified. In Part IV, I argue that the conclusion that no excuse be granted for relying on a lawyer's mistaken advice does not require that we prefer the provisions that grant an excuse only where the mistake of law was due to a reliance on an official interpretation. The advantage of broader provisions granting an excuse for mistake of law that was reasonably unavoidable is that it applies in situations in which there is no reliance.
JEL Classification: k14
Suggested Citation: Suggested Citation