If a lawyer is subpoenaed to testify about a client's assets, can the lawyer refuse to answer questions he believes call for privileged communications?

Plain-English summary

A member posed three questions about an attorney being examined in supplementary proceedings about the property and assets of his client, the judgment-debtor, under Section 55.52 of the Florida Statutes or Rule 1.40 of the Florida Rules of Civil Procedure: whether such examination would per se require violating a confidential communication and breach Canon 37; whether divulging information under court order and threat of contempt would subject the lawyer to discipline, and whether the privilege against self-incrimination would let him refuse; and whether the attorney could assert the privilege as to specific questions exceeding the legitimate scope of inquiry into the debtor's assets.

A majority found the questions essentially legal and declined to answer them specifically, since the committee is not authorized to answer questions of law. Answering more generally, it said whether a particular attorney-client communication is confidential is essentially a question of law for a court of competent jurisdiction, as the ABA's committee held in its Opinion 247. The lawyer can appear and testify as to matters not within the rule of confidential communication; as to privileged matters, he may refuse to answer unless required by the court to do so. If the lawyer or client believes an inquiry warrants review, the lawyer may properly refuse to answer the particular question until he has secured appellate review, and ultimately it is the lawyer's duty to be bound by any final adjudication. The committee added that no lawyer should be disciplined for obeying a court order properly entered.

Currency note

This opinion was issued in 1965, 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; a lawyer's duty of confidentiality is now governed by Rule 4-1.6 of the Rules Regulating The Florida Bar (Model Rule 1.6), and the statute and procedural rule it cites may have been amended. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 refuse to testify about matters he believes are privileged?

A: The committee said the lawyer may refuse to answer privileged matters unless the court requires it, and may refuse a particular question until he secures appellate review.

Q: Who decides whether a communication is privileged?

A: The committee said that is essentially a question of law for a court of competent jurisdiction, not for the ethics committee, consistent with ABA Opinion 247.

Q: Can a lawyer be disciplined for testifying under a court order?

A: No. The committee said no lawyer should be disciplined for obeying a court order properly entered, and that the lawyer ultimately must be bound by a final adjudication.

Background and rules framework

The opinion applied former Canon 37 of the Canons of Professional Ethics, the duty to preserve client confidences, now governed by Rule 4-1.6 of the Rules Regulating The Florida Bar (Model Rule 1.6). It distinguished the ethical duty of confidentiality from the legal question of privilege, which it left to the courts, citing ABA Opinion 247. The facts arose in supplementary proceedings under Section 55.52 of the Florida Statutes.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• F.S. § 55.52 (supplementary proceedings concerning a judgment-debtor's assets, as cited in the opinion)

Other opinions cited:

• ABA Op. 247: whether a communication is privileged is a question of law for the court

See also

• FL Bar Ethics Op. 65-54: Refusing to Give an Agency a Client's Information
• FL Bar Ethics Op. 67-27: Client Conducting a Supplementary-Proceedings Exam

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-7.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-7
February 18, 1965
Advisory ethics opinions are not binding.
A lawyer has an ethical duty to preserve his client's confidences. But whether or not particular information is privileged is essentially a question of law. If an attorney called upon to testify is asked to divulge information that he believes in good faith to be legally protected as a privileged communication, he may refuse to answer unless required by the court to do so, and in a proper case may seek appellate review.
Canon: 37
Opinion: ABA 247
Statute: F.S. § 55.52
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar poses for us three questions as follows:
(A) Would the examination of an attorney in supplementary proceedings concerning the property and assets of his client, the judgment-debtor, pursuant to Section 55.52 of the Florida Statutes or Rule 1.40 of the Florida Rules of Civil Procedure per se require him to violate a confidential communication between himself and his client and thereby constitute a breach of professional ethics as set forth in Canon 37 of the Canons of Ethics?
(B) If an attorney appeared at such proceedings pursuant to an order of a court of competent jurisdiction and divulged such information under penalty of contempt proceedings, would he thereby subject himself to disciplinary proceedings by The Florida Bar and if so, would he not be entitled to refuse to answer any confidential communication, under the privilege against self-incrimination as provided in the state and federal constitutions?
(C) Assuming the answers to the foregoing questions are in the negative, would judgment-debtor's attorney still be entitled to assert the privilege with respect to specific questions that in the opinion of the Court exceed the legitimate scope of inquiry as to the assets and property of the debtor, and require the attorney to divulge confidences of his client?
This Committee is not authorized to answer questions of law, even if they are in some fashion related to matters of professional ethics. It is the opinion of a majority of the Committee that the questions, as posed, are essentially legal in nature. We must therefore respectfully decline to respond to the specific inquiries. Answering the questions more generally, it is the opinion of this Committee that whether a particular communication between attorney and client is confidential in nature is essentially a question of law to be considered by a court of competent jurisdiction. The American Bar Association's Committee on Professional Ethics held similarly in its Opinion 247. Of course, the lawyer can appear and testify as to those matters which do not fall within the rule of confidential communication. As to privileged matters, the lawyer may refuse to answer unless required by the court to do so. If the lawyer or his client believes that the nature of any inquiry is such that an adverse ruling of the trial court should be reviewed, the lawyer may then properly refuse to answer the particular inquiry until he has secured a review of the matter by the proper appellate court. Ultimately it would appear to be the lawyer's duty to be bound by any final adjudication of the issue.
This Committee generally is of the opinion that no lawyer should be disciplined for obeying the court order which has properly been entered.