Can a lawyer be made to give the IRS the name and address of a client for whom he obtained a tax ruling on a hypothetical question?

Plain-English summary

A member asked whether his office was required or permitted to disclose to the Internal Revenue Service the name and address of a client, at whose request he had framed a hypothetical question and obtained an answer from the IRS. The IRS was now demanding the client's name and address on the supposition that the client might be involved in some violation of federal law.

The committee's unanimous opinion was that the lawyer is neither required to nor should, and that he cannot ethically, disclose the client's name and address. The lawyer is bound by the confidences of the client, and it is under that privilege of not divulging confidences that the client is able to make full disclosure. The committee said the only way disclosure could be allowed would be with the client's consent, and suggested that consent be obtained in writing for protection. It cited Drinker on Legal Ethics at pages 136 and 138, including that a lawyer may not disclose a client's funds or whereabouts and may not inform the collector of a client's failure to disclose income or of the client's address. The committee added that the opinion did not encompass any thought of an attorney and client conspiring to defraud the government, but only the situation where the client discloses confidential matters to his attorney.

Currency note

This opinion was issued in 1962, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 37 of the Canons of Professional Ethics, concerning the confidences of a client; the subject is now addressed by Rule 4-1.6 (confidentiality of information) of the Rules Regulating The Florida Bar (Model Rule 1.6). Subsequent rule amendments or later opinions may have changed the analysis, and the law governing when a client's identity is protected has developed substantially since 1962. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer be compelled to disclose a client's identity to the IRS?

A: The committee concluded the lawyer is neither required to nor may ethically disclose the client's name and address, treating the identity as protected by the duty of confidentiality on these facts.

Q: Is there any way disclosure would be proper?

A: Yes, with the client's consent. The committee said the only way it could conceive of allowing disclosure was with the client's consent, and suggested obtaining that consent in writing.

Q: Does this protect a client engaged in fraud?

A: No. The committee expressly said the opinion did not encompass an attorney and client conspiring to defraud the government, only the situation where the client discloses confidential matters to his attorney.

Background and rules framework

The opinion applied former Canon 37 of the Canons of Professional Ethics, concerning the confidences of a client. The duty is now addressed by Rule 4-1.6 of the Rules Regulating The Florida Bar (Model Rule 1.6). The committee tied the protection of the client's identity to the confidentiality that allows a client to make full disclosure to counsel, relying on Drinker on Legal Ethics at pages 136 and 138.

Citations and references

Rules of Professional Conduct:

• Canon 37 [Canons of Professional Ethics; see current Rule 4-1.6]

Other authorities:

• Drinker, Legal Ethics, pp. 136, 138

See also

• FL Bar Ethics Op. 65-7: Testifying About a Client's Assets
• FL Bar Ethics Op. 63-23: Withdrawing From a Faked Claim

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-62-24/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-62-24-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 62-24
October 9, 1962
Advisory ethics opinions are not binding.
A lawyer is not required nor permitted to disclose to the Internal Revenue Service the name and address of a client at whose request the lawyer framed a hypothetical question and obtained an answer and ruling from the Internal Revenue Service.
Canon: 37
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar requested an opinion from the Committee on Professional Ethics as to whether his office is required or permitted to disclose to the Internal Revenue Service the name and address of a client, at whose request he framed a hypothetical question and obtained an answer from the Internal Revenue Service. Now we understand the Internal Revenue Service is demanding of the lawyer the name and address of this client on the supposition that the client may be involved in some violation of federal law which the Internal Revenue Service would like to follow up.
It is the unanimous opinion of this Committee that the lawyer is neither required to nor should, and that he cannot ethically disclose to the Internal Revenue Service the name and address of his client. He is bound by the confidences of the client, and it is under this privilege of not divulging his confidences that the client is able to make full disclosure.
On page 136 of Drinker on Legal Ethics, it is stated that a lawyer may not disclose "his client's funds or his whereabouts. . . ."
The only way that we can conceive that would allow disclosure of the name and address of the client would be with the client's consent, and we would suggest that that consent be obtained in writing for protection.
Considering Canon 37, Drinker on Legal Ethics further states at page 138: "A lawyer may not inform the collector of a failure by his client to disclose income, or of his client's address. . . ."
This opinion, of course, does not encompass any thought that an attorney and his client together conspire to defraud the government or commit any offense, but only covers the situation where the client discloses confidential matters to his attorney.