On Wed, Feb 27, 2002 at 05:37:41PM +1000, Anthony Towns wrote: > On Tue, Feb 26, 2002 at 12:33:06PM +1000, Anthony Towns wrote: > > On Mon, Feb 25, 2002 at 04:21:18PM -0500, Branden Robinson wrote: > > > > > Last I heard, the legal advice we had received was not within the > > > > > context of an attorney-client relationship. Can you clarify? > > > "Legal advice" is more than just a lawyer giving you his opinion, even > > > if it's perfectly sound. Without an attorney-client relationship, the > > > law doesn't regard you as having received legal advice at all. > > > This is important in any situation where "intent" is being established. > > Sorry, don't know, but will investigate. > > Okay, I raised this with the people who were involved in obtaining > the legal advice, and there's a few responses. Thanks for this feedback. I'm forwarding it to the SPI Board. > The direct answer to your question seems to be that, no, an > attorney/client relationship was not established between the lawyer and > Debian or SPI, however there is an existing attorney/client relationship > with Roszel C. Thomsen II (the lawyer) and Hewlett-Packard, who use the > this law firm for some of their export questions. > > According to LaMont, this issue was raised at the SPI board meeting > in late November (2001.11.26? the minutes aren't up on the website, so > I can't check), and Roz emailed the SPI board on the 28th with a view > to establishing an attorney/client relationship. You'd need to check up > with the rest of the board to see if anything's happened with that. I recall this. It was brought up for discussion but since none of us are lawyers (and SPI's attorney was not present) it didn't really go anywhere. > Ronald Chichester who was also part of the crypto-in-main legal advice > team had this to say on the matter (forwarded with permission, he's > subscribed to this list, but isn't up to date with this weeks stuff): Thanks for your input, Mr. Chichester. This appears to be in some friction with what I already understood, but most likely the only real conflict is between the complexity of the law, and my simple brain. :) > On Tue, Feb 26, 2002 at 08:22:56AM -0600, Ronald.Chichester@bakerbotts.com > wrote: > ] Branden wrote: > ] > If I establish an attorney-client relationship with a lawyer who gives > ] > me legal advice to the effect that I can do X without running afoul of > ] > the law, then I have a strong affirmative defense when the government > ] > indicts me anyway, claiming I had "intent" to, say, violate the BXA > ] > regulations. (This assumes that I don't disregard the lawyer's advice > ] > and do something he just told me not to.) > ] > ] That's not true. Ignorance of the law (regardless of your lawyers advice) > ] is no excuse. For that matter, even if a government official told you that > ] some activity was okay, that does not absolve you from breaking the law. > ] Your attorney (or a government official) does not have the power to create > ] an exception to an illegal activity. > ] > ] > Without legal advice received in the context of an attorney-client > ] > relationship, as far as the law cares I received no legal advice at all, > ] > and I lack one defense to charges that "intentionally" violated the BXA. > ] > ] I'm afraid that the attorney-client relationship doesn't mean anything in > ] this regard. You were given legal advice. That's all. You can take it or > ] leave it. However, you are responsible for your activity. All that you > ] have been given by the lawyer is some advice as to how to minimize your > ] risk. It is still up to you to decide whether or not to do the given > ] activity. The court will hold you (and only you) accountable for that > ] activity. If you rely on a lawyer's advice, and that advice proves to be > ] bad, the court can still find you guilty. In that event, your only recourse > ] against the lawyer is a suit for malpractice, which you can try to conduct > ] from jail. At that point, the notion of the attorney-client relationship > ] would be central to your malpractice case, the absense of which would > ] definitely hurt. > ] > ] Incidentally, "intentional" with respect to the BXA means that you intended > ] to do the act (regardless of whether or not you considered the act to be > ] legal or not). The court will look to see if you intended to do the act, > ] not whether you intended to break the law. > ] > ] That being said, it is my opinion that Debian was given sound legal advice > ] from HP on this matter. > ] > ] BTW, I am a lawyer. > ] > ] Cheers, > ] > ] Ron > ] > ] Ronald L. Chichester > ] Adjunct Professor of Law > ] South Texas College of Law > ] Houston, Texas > ] > ] Baker Botts L.L.P. > ] One Shell Plaza > ] 910 Louisiana Street > ] Houston, Texas 77002-4995 > ] 713.229.1341 (Voice) > ] 713.229.7741 (Facsimile) > ] ronald.chichester@bakerbotts.com > ] > ] **** PRIVILEGED AND CONFIDENTIAL **** > ] > ] NOTICE: This e-mail transmission, and any documents, files or > ] previous e-mail messages attached to it may contain confidential > ] information that is legally privileged and intended only for the use of > ] the addressee. The term `privileged and confidential` includes, without > ] limitation, attorney-client privileged communications, attorney work > ] product, trade secrets, and any other proprietary information. In > ] transmitting this communication, the sender does not waive any claim to > ] privilege or confidentiality. If you are not the intended recipient, or > ] a person responsible for delivering it to the intended recipient, you > ] are hereby notified that any disclosure, copying, distribution or use of > ] any of the information contained in or attached to this transmission is > ] STRICTLY PROHIBITED. If you have received this transmission in error, > ] please immediately notify us by reply e-mail or by telephone at > ] 713.229.1234 and destroy the original transmission and its attachments > ] without reading or saving in any manner. > > HTH. > > Cheers, > aj -- G. Branden Robinson | If you have the slightest bit of Debian GNU/Linux | intellectual integrity you cannot branden@debian.org | support the government. http://people.debian.org/~branden/ | -- anonymous
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