Good faith reliance on counsel can be a critical line of defense for the accused in white-collar prosecutions where transactions are often complex, regulatory schemes uncertain, and the question of intent is frequently the crux of the case. Although typically referred to as the “advice of counsel defense,” that formulation is something of a misnomer that may suggest an unduly constricted view of the doctrine. Reliance on counsel is properly understood as part of a broader category of evidence of good faith that may negate the government’s claim of unlawful intent, rather than as a formal defense requiring a defendant to demonstrate specific factual elements.

Defendants seeking to assert reliance on counsel often face skepticism and procedural hurdles raised by prosecutors and courts. The case law includes some notable examples where trial courts, at the urging of the government, took an overly narrow view of a defendant’s right to present this line of defense. The district court’s ruling in United States v. Scully is a recent illustration, and the Second Circuit’s reversal, 877 F.3d 464 (2d Cir. 2017), which underscored the fundamental principle that asserting reliance on counsel does not shift the burden to the defense, offers useful guidance.