In Florida Bar v. Herman, 297 So. 3d 516 (Fla. 2020), the Florida Supreme Court addressed whether “advice of counsel” can shield a lawyer from professional discipline. See Fla. Bar v. Herman, 297 So. 3d 516 (Fla. 2020). The case arose from Peter G. Herman’s personal bankruptcy, in which he failed to disclose an anticipated $2.7 million bonus from his law firm. A bankruptcy court found that Herman had deliberately concealed this potential asset to hinder creditors and denied his discharge.
The Florida Bar charged Herman with multiple rule violations, including dishonesty and misrepresentation. At the disciplinary hearing, Herman testified that he relied on his bankruptcy lawyer’s advice. According to Herman’s counsel, the bonus was discretionary and need not be listed as an asset; his response in the schedules referenced only a historical annual bonus of $65,000–$70,000.
The referee rejected this defense outright, citing Florida Bar v. Adorno and Florida Bar v. St. Louis, which held that advice of counsel is generally not a defense in Florida Bar proceedings—unless expressly provided by rule or considered in mitigation. See The Florida Bar v. Adorno, 60 So. 3d 1016 (Fla. 2011); see also The Florida Bar v. St. Louis, 967 So. 2d 108 (Fla. 2007). The referee recommended an 18-month suspension.
On review, the Florida Supreme Court agreed that prior precedent states the defense is generally unavailable, but clarified that the rule “is not so unyielding” as to bar all consideration. Advice of counsel may be relevant to whether the lawyer acted with the requisite intent and may also be considered in mitigation. Because the referee refused to consider Herman’s reliance at all, the Court remanded for further proceedings.
Florida’s decision makes clear that while lawyers remain accountable for their own conduct, genuine, good-faith reliance on counsel’s advice may still be considered when intent is in question.
