Question

You are an associate at ABC LLP, a forensic accounting firm. Your company is retained by the Law Firm that is representing a client. The client, the former CFO of the Public Company, is being investigated by the SEC and FBI for running a large accounting fraud scheme and funneling money to his own account after allegedly falsely invoicing sales during 2013 and 2014. The Auditing Firm, which was recently terminated, audited the Public Company and issued opinion letters in connection with the Public Company’s 2013 and 2014 annual reports.

You are just getting up to speed on the case, but the ABC Partner asked for you to help analyze the issue in connection with the Law Firm.

Assume that you are in a meeting with the Law Firm about advising the CFO on options for defending an SEC investigation / FBI investigation. Describe to the group your understanding of:

a. Advice of Counsel Defense

b. Good Faith Defense

c. Fifth Amendment (testimonial and document)

Answer 1

a) Advice of Counsel Defense- In terms of patents law, in an action of breaking the law, advice of counse defense is a belief that the plaintiff has obtained from the lawyer after understanding the rights of the owner. The plaintiff beleives on lawyer's opinion before the actual act. The belief is a factor in understanhding the act as right and wilfull.

b) Good Faith Defense- It is a total defense in legal charges including fraud. Willingness to defraud which is the main part of these charges is not good faith defense. Proof is not required to be proved by the person involved. the territory must prove that the person acted with that intention to defraud and not good faith

c)  Fifth Amendment (testimonial and document) - Under this Amendment, no person can be forced to be a witness against himself. A person can utilize this rights againt producing documents only when producing documents is making someone or oneself guilty itself