ARTICLE: Reliance on a Lawyer's Mistaken Advice-Should it be an Excuse from Criminal Liability?* Skip over navigation
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Copyright (c) 2002 The University of Texas School of Law
American Journal of Criminal Law

ARTICLE: Reliance on a Lawyer's Mistaken Advice-Should it be an Excuse from Criminal Liability?*

Summer, 2002

29 Am. J. Crim. L. 455


Miriam Gur-Arye**


A woman accepted payment for looking after two small children who were placed in her care. The children resided in her home, but spent some weekends with their parents. Criminal charges were filed against the woman for unlawfully providing foster care. In the course of the proceedings, it became clear that prior to signing the contract with the parents, in response to her question, a lawyer had explained to her that her status under the contract was not that of a foster family. By law, a foster family is one that cares for children in its home, for payment, for more than thirty consecutive days. In the lawyer's opinion, the fact that the children would spend weekends with their parents interrupted the necessary consecutiveness. The court rejected the lawyer's interpretation, holding that the fact that the children spent some weekends with their parents did not affect the woman's status as a foster family that had undertaken to care for the children over a long, consecutive period of time. That being the case, the woman was required to obtain a permit to raise the children.

Can the woman's reliance on the lawyer's mistaken advice serve as a defense to criminal liability?

In the 1960's, in an almost identical case, 1 an English court refused to recognize the defense, on the basis of the rule that mistake of law is no excuse-ignoratio vel error legis non excusat. Over the years, many legal systems have drifted away from the strict rule ...
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