If a lawyer is served with a writ of garnishment over a client's judgment debt, can the lawyer assert the attorney-client privilege, and must the lawyer withdraw if the client won't waive it?

Plain-English summary

A lawyer who represented judgment debtors, while post-trial motions were still pending, was served with a writ of garnishment requiring a sworn answer about, among other things, the lawyer's own indebtedness to the clients, possession or control of the clients' property, and knowledge of others holding the clients' property or debts. The lawyer had filed a claim of privilege and asked whether he could answer when the information would come from confidential client communications, and whether he would have to withdraw if the clients declined to waive any applicable privilege.

The committee said the existence and extent of the privilege was a question of law beyond its jurisdiction. On the ethics question, it concluded there was no impropriety in the lawyer asserting the privilege and then abiding the order of the court if the plaintiff continued to contest the issue. It followed that the lawyer could ethically continue to represent the clients' interests in further proceedings even though they declined to waive any privilege.

Currency note

This opinion was issued in February 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 37 on confidences of a client. 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 related evidentiary attorney-client privilege by Florida's evidence law. 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 Treat this page as historical context, not current guidance.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: Did the committee decide whether the privilege actually applied to the garnishment answer?

A: No. It said the existence and extent of the privilege was an issue of law beyond the committee's jurisdiction; it addressed only the ethics of asserting it.

Q: Was it improper for the lawyer to assert the privilege rather than answer the writ?

A: No. The committee said there could be no ethical impropriety in asserting the privilege and then abiding the court's order if the plaintiff further contested the issue.

Q: Did the lawyer have to withdraw if the clients would not waive the privilege?

A: No. The committee concluded the lawyer could ethically continue to represent the clients' interests in further proceedings even though they declined to waive any privilege.

Background and rules framework

The opinion applied the former Canon 37, which governed the preservation of a client's confidences. A lawyer's confidentiality duty is now addressed by Rule 4-1.6 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.6. The committee distinguished the ethical confidentiality duty from the separate evidentiary attorney-client privilege, whose existence and scope it treated as a question of law outside its remit.

Citations and references

Rules of Professional Conduct:

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

See also

• FL Bar Ethics Op. 68-37: Retaining Liens and Trust Funds
• FL Bar Ethics Op. 06-1: Electronic File Storage

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-78/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-78.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-78
February 6, 1967
Advisory ethics opinions are not binding.
An attorney served with a writ of garnishment subsequent to rendition of a judgment against his client may properly assert the attorney-client privilege in response. The attorney is not obligated to withdraw from representation of the client if the client refuses to waive the privilege.
Canon: 37
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar represents defendants against whom judgment has been rendered. During the time in which the representation still continues by virtue of the pendency of post-trial motions, the plaintiff has caused the inquiring attorney to be served with a writ of garnishment seeking answer under oath from the attorney, inter alia, as to personal indebtedness to the defendants, possession or control of property of the defendants, and knowledge as to other persons indebted to the defendants or possessing their property. The inquirer has filed a claim of privilege in response to the writ of garnishment. He now inquires as to whether he may properly answer this writ when the information upon which it would be answered was communicated in confidence by the client. He further inquires as to whether he would be required to withdraw from the representation of the defendants in the event they decline to waive any privilege which might be pertinent under the circumstances.
The question of privilege, its existence and extent, is an issue of law which is beyond the jurisdiction of this Committee. However, it is manifest that there can be no ethical impropriety in a lawyer asserting the privilege under the circumstances related and thereafter abiding the order of the court if the issue be further controverted by the plaintiff. It necessarily follows that the attorney can ethically continue to represent such interests of the defendants as may be involved in further proceedings even though they decline voluntarily to waive any privilege.