Legal Advice about Acts Already Committed

This paper considers a model of the provision of information about legal rules to parties when they have already committed acts to which the rules apply.’ The provision of advice about legal rules in these circumstances is, of course, one of the main tasks of lawyers in the setting of litigation. (Why individuals often obtain advice only after they have acted, not before, is discussed in our conclusion.) We begin in section I by observing that advice has no clear influence on the information received by a tribunal: advice may lead to the presentation either of more or of less information. We also note that advice can only reduce the sanction imposed on a person; it thus tends to reduce expected sanctions. We then consider how the prospect of being able to obtain legal advice if a person comes before a tribunal will affect his choice among possible acts. Because the future availability of legal advice reduces expected sanctions, advice tends to encourage the commission of acts subject to sanctions. Indeed, this consequence of advice led Bentham (1827) to argue that legal advice is socially undesirable. We find, however, that advice may be socially irrelevant or desirable, as well as undesirable. An important reason for our conclusion is that the level of sanctions sometimes can be raised to offset the diluting effect of legal advice. In the course of our analysis, we make two additional, related observations bearing on the social value of legal advice. First, legal advice provided after parties act should not be thought, a priori, to channel behavior in accordance with legal rules; only advice provided before parties decide how to act should have this general tendency. Second, even if advice does result in a tribunal receiving more (or less) information, this need not be socially beneficial (or detrimental) because it does not clearly enhance the tribunal’s ability to induce parties to behave better.* Our analysis is illustrated with an example in section 2. Our conclusion in section 3 comments on differences between the legal advice we study and legal advice offered before parties act, why it often is rational for individuals to obtain legal advice after they act rather than beforehand, and several other issues.