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.
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.
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):
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
]
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HTH.
Cheers,
aj
--
Anthony Towns <aj@humbug.org.au> <http://azure.humbug.org.au/~aj/>
We came. We Saw. We Conferenced. http://linux.conf.au/
``Debian: giving you the power to shoot yourself in each
toe individually.'' -- with kudos to Greg Lehey
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