RE: WARNING: Crypto software to be included into main Debian dist ribution
> ] 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.
Ron -
I'm the attorney for SPI that has been trying to help out with various matters, one of which is the IRS obligations of SPI as a non-profit.
The defense of reliance on advice of counsel does exist for certain matters, such as willful evasion of income tax obligations of corporations, and would certainly be a mitigating factor for offenses that require some element of intent. See, e.g., United States v. Gonzales, 58 F.3d 506, 512 (10th Cir. 1995) ("Reliance upon advice of counsel is a defense that the defendant must establish.") citing Liss v. United States, 915 F.2d 287, 291 (7th Cir. 1990).
We would be glad to have you also sign on as an attorney for SPI if you are truly interested in helping out, and you could then provide advice based on a full understanding of what has transpired, instead of based on a not-complete understanding.
Chris Rourk
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
(214) 969-4669
(214) 969-4343 fax
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