Can a lawyer refuse to voluntarily hand his client trust account records to the IRS for an audit and require a court order instead?

Plain-English summary

A member of The Florida Bar had been asked by the Internal Revenue Service to submit his office books and accounts, including his trust account, to an audit for a particular year. He expressed doubt whether he should expose his trust account to audit without a court order.

The committee unanimously held that, if in doubt as to whether disclosure might be detrimental to his clients, a lawyer does not act unprofessionally by refusing to voluntarily disclose his trust account records to the IRS. It added that the lawyer may properly require the IRS to follow appropriate procedures to secure a judicial determination of whether any privilege exists.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.6 and 5-1.1, and against current tax and privilege law, before relying on any specific statement here.

Common questions

Q: Did the lawyer have to turn over his trust account records to the IRS on request?

A: Under this opinion, no. The committee held that, if in doubt about harm to clients, a lawyer does not act unprofessionally by refusing to disclose his trust account records voluntarily to the IRS.

Q: What could the lawyer require instead?

A: The opinion said the lawyer may properly require the IRS to follow appropriate procedures to secure a judicial determination of whether any privilege exists.

Background and rules framework

The opinion addressed the tension between a lawyer's duty to protect client information and a government agency's request to audit trust account records. In current Florida practice the confidentiality duty is in Rule 4-1.6 and the safekeeping and recordkeeping of client trust funds in Rule 5-1.1; the Model Rule analogues are Rules 1.6 and 1.15. Whether any evidentiary privilege applies is a question of law beyond the opinion's scope.

Citations and references

Rules of Professional Conduct:

• CPR (Code of Professional Responsibility) generally; no specific disciplinary rule cited

See also

• FL Bar Ethics Op. 72-40: Client Confidences and the Executor Bank
• FL Bar Ethics Op. 12-4: Title Insurer Audits of a Real Estate Trust Account
• FL Bar Ethics Op. 10-3: A Deceased Client's Confidential Information

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-3-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-3
March 22, 1972
Advisory ethics opinions are not binding.
A lawyer does not act unprofessionally by refusing to disclose voluntarily his clients' trust account records to the Internal Revenue Service.
Chairman Clarkson stated the opinion of the committee:
A member of The Florida Bar has been asked by the Internal Revenue Service to submit his office books and accounts, including his trust account, to an audit for a particular year. He expresses doubt whether he should expose his trust account to audit without a court order.
If in doubt as to whether disclosures might be detrimental to his clients, a lawyer does not act unprofessionally by refusing to disclose his trust account records voluntarily to the Internal Revenue Service. The committee unanimously holds that the lawyer may properly require IRS to follow appropriate procedures to secure a judicial determination whether any privilege exists.