BGH: Professional advice may be punishable as aiding and abetting – where is the line between professional advice and unauthorized courtesy opinions?

Professional consulting services can constitute criminal aiding and abetting if they are deliberately used to support a criminal offense. This also applies to expert opinions provided by lawyers. The Federal Court of Justice rejected the appeal of a lawyer who had been convicted of aiding and abetting tax evasion by providing courtesy opinions in the context of cum/ex arrangements. The Senate emphasizes that independent expert opinions prepared in accordance with professional standards and based on complete facts are permissible, whereas "courtesy opinions" carry a considerable risk of criminal liability. For those seeking legal advice, the following applies: Courtesy opinions cannot be invoked; they do not constitute a so-called "error of law."

Facts of the case

The defendant wrote several opinions on the tax "harmlessness" of so-called cum-ex transactions. The opinions were based on deliberately incorrect or incomplete facts; according to the grounds for the judgment, essential agreements, modes of operation, and the distribution of profits via derivatives priced at above market value were concealed.

Basing an opinion on facts that are known to be false or incomplete is a criminal offense.

The First Criminal Division classified this as aiding and abetting tax evasion: In principle, it confirmed the prevailing view that even actions typical of a profession can constitute criminal aiding and abetting. Neither everyday nor professional activities are neutral per se. An assessment must be made in each individual case as to whether behavior that is neutral in terms of the profession constitutes aiding and abetting a criminal offense or the non-punishable exercise of a profession.

Legal opinions are normative in nature; opinions that deviate from prevailing views but are legally justifiable are permissible and not punishable. Legal advice provided in accordance with professional standards therefore falls within the permissible risk.

However, "incorrect descriptive statements" are problematic: anyone who deliberately conceals opposing views or bases their opinion on false/incomplete facts in order to achieve a desired result is providing incorrect legal information.

In the specific case, the defendant based his expert opinion on inaccurate or incomplete facts in order to justify tax compliance. He knew that if the facts were fully known, the tax credit would be denied, and he accepted this. He therefore aided and abetted tax evasion committed by third parties (Section 370 of the German Fiscal Code (AO)).

Important: An objectively justifiable legal opinion does not in itself lead to criminal liability. It becomes punishable if the advice is deliberately untrue/incomplete or is used as a tool to promote the offense.

Consequences for lawyers

Expert opinions that are based on deliberately false or incomplete facts, that conceal or distort significant counterarguments and viable counterarguments, or that clearly serve to enable or secure a criminal offense are to be considered criminal aiding and abetting if the lawyer is aware of this or accepts it – if they promote a principal offense.

On the other hand, expert opinions prepared lege artis on the basis of complete facts with a comprehensible examination of opposing views that arrive at a legally justifiable conclusion remain unpunished – even if they are later deemed to be inaccurate.

Lawyers must therefore base their expert opinions on a careful, documented clarification of the facts and address any contradictions or unresolved issues. They must disclose methodological uncertainties and present arguments for and against. Above all, they must maintain their independence and not accept any predetermined results.

Consequences and legal situation for those seeking legal advice

For those seeking legal advice, courtesy opinions are legally "worthless." They do not justify protection of legitimate expectations and do not constitute a mistake of law (Section 17 of the German Criminal Code (StGB)), because they are not independent, careful, or complete. For an (unavoidable) mistake of law – which excludes criminal liability – the established case law of the Federal Court of Justice (BGH) requires

• the obtaining of qualified, independent, and careful legal advice.
• complete and truthful disclosure of all relevant facts,
• seriously examining and verifying the plausibility of the information; addressing any recognizable counterarguments; and
• justifiable legal opinion and no “result-oriented opinion.”

Summary and practical advice

Not every professional action that promotes a crime constitutes aiding and abetting. Seeking legal advice before making questionable decisions is part of everyday life for decision-makers – and that is perfectly acceptable. Doubts about the permissibility of conduct or decisions may be grounds for seeking an expert opinion that can confirm permissibility – even if the outcome later turns out to be different, for example in the context of a legal dispute. Legal advice alone is therefore not punishable as aiding and abetting, even if it is based on a different but justifiable opinion. Only the deliberate distortion or concealment of facts – or the omission of relevant counterarguments in the case of recognizable use of the act – removes the action from neutrality and makes it punishable as aiding and abetting.