QuestionCan you go to jail for giving bad advice?
Hopes&Fears answers questions with the help of people who know what they're talking about. Today, two lawyers, a cosmetologist and a financial advisor explain if bad advice can put you in jail.
We've all given bad advice at some point: who to date (or not to date), what to wear (or not to wear). But what about really bad advice? Advice that could get someone killed, or have their house foreclosed on, or cause their skin to peel off? Where does a ‘whoops’ end and a civil lawsuit begin? Where does that civil lawsuit end and turn into a criminal one? We asked two lawyers, a cosmetologist and a financial advisor to break it down.
Paul Hanly Jr.
Chairman of Simmons Hanly Conroy LLC., a national law firm
The answer to the question is not simple, but generally speaking, here is the state of the law:
You cannot go to jail for giving bad legal advice, unless the advice counsels the recipient how to commit a crime. E.g., if I am a lawyer and someone comes to me and asks the best way to conceal a dead body and I give her advice about that, but in fact the body is discovered, then I may be charged as an accessory to a crime.
In another context, if a doctor advises a patient to take five 160 mg OxyContin tabs for a toothache and the patient dies (a likely outcome at that dosage), the doctor could be prosecuted for criminally negligent manslaughter.
Similarly, if an engineer advises a client to build a house on quicksand and the client does so and the house and the client are consumed by the quicksand, the engineer could be prosecuted for criminal negligence.
But as a general rule, bad advice gives rise only to liability for money damages but does not subject the advisor to criminal liability.
Keep in mind that example is not so much liability for bad advice as it is for participating in a crime. In other words, the advisor would not be prosecuted for the “bad” advice which resulted in the body being discovered but instead for his/her actions in assisting in the commission of a crime by facilitating the secreting of the body. Examples and are of potential criminal liability for the advice itself, since there is a direct causal connection between what is said and the bad consequences.
— Rihanna won a $10 million settlement after an accountant gave her bad advice which led to her "squandering $9m in one year - including $7.5m on a moldy Beverly Hills mansion."
— Navy SEAL Matt Bissonnette sued his attorney Kevin Podlaski for $8 million for allegedly advising him that his manuscript of ‘No Easy Day’ (a first-hand account of the raid that killed Osama Bin Laden) did not need to be submitted to the Department of Defense for review.
With respect to licensed financial advisors, part of the client onboarding process is making s determination of the client's financial goals and risk tolerance. Any deviation from these factors is technically a violation and the advisor can be disciplined by FINRA (Financial Industry Regulatory Authority) for doing so resulting in fines, suspension of licenses or a ban from the industry.
In extreme cases, criminal charges can be filed as well. These situations typically arise when the advisor has discretion to invest the client's money but there are also situations where advice is given to, and acted upon by, people who are not competent to make decisions.
The simplest case would be one where the client specifies their goals as income and wealth preservation which would typically result in investments in high quality bonds. If the advisor was to invest or cause the client to invest through the advisor's advice in junk bonds, equities or options, this would be cause for a FINRA investigation and possible action. If there were significant financial losses as well, the advisor could be subject to wire fraud charges. If there was a pattern of such offenses by the advisor, they could also be charged with racketeering. There could also be civil lawsuits as a result of such behavior.
Total fines recovered by FINRA (Financial Industry Regulatory Authority)
Cosmetologist at Paul Mitchell
In the industry of cosmetology, your clients trust you to give them the best, most educated, personalized advice on not only their appearance but on whether or not the services you offer are compatible with their hair type, skin type, face shape, and otherwise.
If you were to make an unfixable mistake, or even a fixable mistake that the customer is unhappy with, you are held accountable for it. This means they could sue based on your performance. Your advice is not so much the key factor in this, it's more so your professionalism (being prepared to inform your client completely of the risks and procedures to achieve their desired end result, consulting them to receive any information regarding their current state, and being able to execute the aforementioned procedure) that can cause legal trouble.
Most cosmetologists, both licensed and students, require the client to sign a release form so as to protect themselves from any liabilities.
Some places, my cosmetology school included, require a good portion of your consultation to be in writing, and for licensed professionals to approve of almost any service you would perform on your guest preceding the actual act of executing it, and after. Under certain circumstances, say doing a favor by cutting hair for a friend at their home or taking clients in your own home salon, a release form is not used under the basis of trust. Having a close clientele like this is dangerous legally because, with the assumption that your client trusts you and without signing any sort of release form, it gives your clients the freedom to sue you based on their end result. It really is a matter of making sure you take preventative measures and understanding your client and your trade that will keep you from having this sort of legal trouble. While it is very avoidable, it is still a risk that comes with the industry.
— Dr. Oz has prevailed in a lawsuit brought by a viewer who claims he suffered third-degree burns after following insomnia advice Oz suggested on his hit TV show. In dismissing the lawsuit against Dr. Oz, Judge Saliann Scarpulla of the New York Supreme Court ruled there was no "duty of care between a television talk-show host and his vast home-viewing audience.
By and large, one can not be legally prosecuted for offering "bad advice".
However, there are a few circumstances whereby one can be held liable for giving faulty advice to another to whom you owe, or, in the alternative, have a fiduciary relationship with; in the eyes of the law this is considered a privilege especially with respect to communication between the parties.
There are three express 'fiduciary' privileges in the eyes of the law Priest-Penitent, Doctor-Patient and Lawyer-Client. Here, if advice is rendered and later to be determined that it was proffered in bad faith and the individual relied on that advice to his/her detriment, then we most certainly have a circumstance whereby the professional may be held liable, perhaps even criminally liable, punishable by jail time.
More often then not, those giving flawed advice, perhaps an accountant, stock broker, or an architect, will open themselves up to civil liabilities but not necessarily criminal penalties. The difference of course, is one leads to monetary damages and the other potentially leads to possible jail time.
Society has a built in mechanism for those who are apt to giving professionally flawed advice; word of mouth will eventually negatively affect that person's reputation and standing in his/her community. Oftentimes, this is a more detrimental outcome than a routine short stint behind bars.
— A girl who suffered brain damage while waiting for an ambulance won a $172 million judgment against New York City on Wednesday when a Bronx jury determined that Fire Department paramedics could be held liable for giving her mother bad advice.
— Doctors Sue Arizona Over Abortion Law That "Forces Doctors To Lie To Patients": According to a lawsuit filed this month by the American Civil Liberties Union on behalf of Planned Parenthood and various Arizona health care providers, a new Arizona law would unconstitutionally force doctors to lie to their patients about the reversibility of medical abortions. The law has been overturned.
ILLUSTRATION: Nikita Treptsov