Sunday, December 10, 2006

Wesley Snipes and the Perils of Relying on Counsel

According to an AP wire story, Actor Wesley Snipes plans to blame his lawyers for his alleged tax misdeeds, such as failing to file returns from 1999 to 2004. Snipes was represented by American Rights Litigators, a well-known tax protester firm that has argued, among other things, that no one needs to pay taxes because the IRS wasn't really created by Congress. (It was.) It's not difficult to find this sort of thing on the web. I leave to the interested reader the exercise of finding the most insane tax protester website.

The Snipes case raises the question of when a client's reliance on the advice of counsel vitiates criminal responsibility. In some instances, the law spells out the answer. For example, the Military Commissions Act of 2006 makes reliance on opinion letters from the likes of the Office of Legal Counsel under Jay Bybee and John Yoo a relevant factor in assessing culpability for acts of inhumane treatment occurring during the period that their "torture memo" was circulating. (Lovely.) Other laws explicitly make reliance on counsel a non-defense. Sarbanes-Oxley, for example, makes CEOs and CFOs take the heat, even if they relied on counsel.

But what about circumstances in which the law in question is silent? Certainly there are easy cases. Suppose my lawyer says that contrary to conventional wisdom, stealing isn't really a crime, and in reliance on this advice, I take my neighbor's car. Too bad. I'm clearly guilty. At the other extreme, suppose that I rely on my lawyer's advice in some incredibly complex transaction and am prosecuted for fraud. Because fraud typically requires a specific mental state, namely an intent to defraud, I would likely not be guilty. Tax cases can be tricky because a conviction requires specific intent, and we can imagine an extraordinarily naive client saying that, based on the advice of counsel, he really believed he didn't owe any taxes. But it's hard to imagine this working for Mr. Snipes or others who sought out tax protester firms.