The IRS is auditing me and wants my appointment book, which lists court dates and client meetings, to back up my deductions. Can I hand it over without violating Rule 1.6?

Plain-English summary

The inquiring attorney was undergoing an IRS audit of the attorney's income tax return. The IRS requested various documents, including the attorney's appointment book or calendar of business activities, to support deductions claimed on the return. Entries in the appointment book included court appointments, court dates, and client meetings. The attorney asked whether providing the appointment book or calendar to the IRS would violate Rule 1.6.

The panel concluded that Rule 1.6, which generally bars revealing information relating to the representation of a client without consent, permits the attorney to produce information to the extent necessary to support the claimed deductions, under the Rule 1.6(b)(2) exception for a controversy between the lawyer and the government over the lawyer's own return. The panel treated the attorney-client privilege question as a matter of law outside its scope, noting that client identity, the fact of consultation, and fee arrangements are generally not privileged absent special circumstances, with an exception where disclosure would implicate the client in liability or harm the client's interest. The panel emphasized that the permitted disclosure is limited: the lawyer must make every practicable effort to avoid unnecessary disclosure, limit it to those who need to know, and seek protective orders. If the attorney believes entries are confidential communications or that disclosing information relating to a client would be detrimental, Rule 1.6 requires the attorney to limit the request and assert the privilege or confidentiality protection; when in doubt, the attorney does not act unethically by declining to disclose voluntarily and may require the IRS to obtain a judicial determination. If a court orders disclosure, the attorney must comply.

Currency note

This opinion was issued in October 1997, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer give the IRS records that contain client information?

A: To a point. The opinion concluded that under Rule 1.6(b)(2) the lawyer may produce information to the extent necessary to support claimed deductions, while limiting disclosure and asserting privilege for protected entries.

Q: Is a client's identity or fee arrangement privileged?

A: The opinion noted that, as a matter of law outside its scope, client identity, the fact of consultation, and fee arrangements are generally not privileged absent special circumstances, though the panel treats client identity as confidential under Rule 1.6.

Q: What should the lawyer do when unsure whether an entry is protected?

A: The opinion stated that when in doubt whether disclosure would harm a client or whether the privilege attaches, the lawyer does not act unethically by declining to disclose voluntarily and may require the IRS to seek a judicial determination.

Q: Does the lawyer have to obey a court order to produce the records?

A: Yes. The opinion concluded that if a court orders disclosure of the contents, the attorney must comply.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.6 (Model Rule 1.6) as originally adopted. Rule 1.6(a) barred revealing information relating to the representation of a client absent consent, subject to the paragraph (b) exceptions. Rule 1.6(b)(2) permitted disclosure to establish a claim or defense for the lawyer in a controversy involving the lawyer, which the panel applied to the audit of the lawyer's own return, while the comment limited the disclosure to what is necessary and required efforts to minimize the risk of disclosure. The panel distinguished the evidentiary attorney-client privilege from the ethical duty of confidentiality and left the privilege question to the courts.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / RI RPC 1.6(a), 1.6(b)(2) (confidentiality of information)

Cases:

• Shargel v. United States, 742 F.2d 61 (2d Cir. 1984), client identity and fee arrangements generally not privileged
• In re Grand Jury Subpoena, 680 F.2d 1026 (5th Cir. 1982), same
• In re Grand Jury Subpoena, 694 F.2d 1258 (11th Cir. 1982), same

Other opinions cited:

• Fla. Bar Comm. on Prof. Ethics Op. 72-3 (1972): a lawyer may require the IRS to secure a judicial determination of privilege before disclosing
• RI EAP Op. 95-61; RI EAP Op. 94-42 (client identity and accounts-receivable information protected by Rule 1.6)

See also

• RI EAP Op. 98-02: A subpoena for a former client's documents
• RI EAP Op. 97-23: A client's fee default is confidential

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2097-19.pdf

Original opinion text

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

Final

                         RHODE ISLAND SUPREME COURT
                            ETHICS ADVISORY PANEL
                          Opinion No. 97-19, Request No. 724
                               Issued October 9, 1997

FACTS:

   The inquiring attorney is undergoing an Internal Revenue Service audit of his/her in-

come tax return. The IRS has requested him/her to provide various documents, including the in-
quiring attorney's appointment book or calendar of business activities, in support of deductions
claimed on the return. Entries in the inquiring attorney's appointment book or calendar include
court appointments, court dates, and client meetings.

ISSUE PRESENTED:

   The inquiring attorney asks whether providing the IRS with his/her appointment book or

calendar will result in a violation of Rule 1.6.

OPINION:

     Rule 1.6, which generally requires that lawyers not reveal information relating to the rep-

resentation of a client unless the client consents, permits the inquiring attorney to produce infor-
mation to the extent necessary to support his/her deductions. If the inquiring attorney believes
that entries contained in the calendar or appointment book are confidential communications be-
tween him/her and a client or that providing information relating to a client would be detrimental
to a client's interest, Rule 1.6 requires the inquiring attorney to limit the request and to assert
that certain information contained in the appointment book or calendar is privileged or is other-
wise protected from disclosure under the ethical duty of confidentiality. If ordered by a court to
disclose the contents of those items, the inquiring attorney must comply.

REASONING:

    The principle of confidentiality is given effect in two related areas of law, the attorney-

client privilege in the law of evidence, and the rule of confidentiality established in professional
ethics. Comment to Rule 1.6. The question of whether or not the inquiring attorney's compli-
ance with the IRS request violates the attorney-client privilege is a question of law and is there-
fore not addressed in this opinion. The Panel notes, however, that courts have held that client
identity, the fact of consultation, and fee arrangements, absent special circumstances, are gener-
ally not privileged. See, e.g. Shargel v. U.S., 742 F.2d 61 (2nd Cir. 1984); In re Grand Jury
Subpoena, 680 F.2d 1026 (5th Cir. 1982); In re Grand Jury Subpoena, 694 F.2d 1258 (11th Cir.
1982). The principal exception to this general rule applies where disclosure of client identity or
fee arrangements would implicate a client in activities that might
Final 97-19
Page 2

subject the client to criminal or civil liability or would be detrimental to the client's interest. See
generally ABA/BNA Law, Man. Prof. Conduct at 55:1315-16 (1997).

   Rule 1.6 entitled "Confidentiality of Information" states in pertinent part:

           (a) A lawyer shall not reveal information relating to representation
           of a client unless the client consents after consultation, except for
           disclosures that are impliedly authorized in order to carry out the
           representation, and except as stated in paragraph (b).

           (b) A lawyer may, but is not obligated to, reveal such information
           to the extent the lawyer reasonably believes necessary:

                                             ***

                 (2) to establish a claim or defense on behalf of the
           lawyer in a controversy between the lawyer and the client,
           to establish a defense to a criminal charge or civil claim
           against the lawyer based upon conduct in which the client
           was involved, or to respond to allegations in any proceed-
           ing concerning the lawyer's representation of the client.

    Most ethics committees, including this Panel, have stated that a client's identity is pro-

tected confidential information. See generally ABA/BNA Law Man. Prof. Conduct at 55:307
(1994); see e.g. R.I. Sup. Ct. Ethics Advisory Panel 95-61 (identity of client is confidential in-
formation and firm may not disclose to agency list of accounts receivable which included client
names); R.I. Sup. Ct. Ethics Advisory Panel 94-42 (lawyer may not disclose to bank that gave
line of credit a list of accounts receivable because names and addresses of clients are protected
by Rule 1.6.) However, the Panel is of the opinion that pursuant to the exception stated in Rule
1.6 (b)(2), the inquiring attorney is permitted to reveal to the extent necessary information relat-
ing to a client's representation in support of claimed deductions in an IRS proceeding. The Panel
notes that the Comment to Rule 1.6(b)(2) limits the permitted disclosure by stating, "[T]he law-
yer must make every effort practicable to avoid unnecessary disclosure of information relating to
a representation, to limit disclosure to those having the need to know it, and to obtain protective
orders or make other arrangements minimizing the risk of disclosure." Comment to Rule 1.6.

    The inquiring attorney has stated that he/she recorded court dates, client meetings, and

"other important dates" in his/her appointment book or calendar. The inquiring attorney is in the
Final 97-19
Page 3

best position to determine whether information such as client identity or fee arrangements would
be detrimental to a client's interest. Similarly, the inquiring attorney must determine whether any
of the entries consist of protected communications between him/her and a client. If in the judg-
ment of the inquiring attorney the attorney-client privilege attaches to any of the entries, he/she
has an obligation under Rule 1.6 to limit the IRS request and to assert the privilege. See Com-
ment to Rule 1.6. When in doubt about whether disclosure would be detrimental to a client or
whether the attorney-client privilege otherwise attaches, an attorney does not act unethically by
refusing to disclose the requested documents voluntarily to the IRS. See Fla. Bar Comm. on
Prof. Ethics Op. 72-3 (1972). The Panel believes that the inquiring attorney may properly re-
quire the IRS to follow appropriate procedures to secure a judicial determination as to whether
any privilege exists. Id.

    The Panel concludes that the inquiring attorney may produce information to the extent

necessary to support his/her claimed deductions in an IRS proceeding, but that the inquiring at-
torney has an obligation to limit disclosure and to assert the attorney-client privilege if he/she be-
lieves that disclosure would be detrimental to a client or that the privilege may otherwise attach
to certain entries contained in the documents requested. Should a court issue an order requiring
him/her to disclose the information, the inquiring attorney must comply. See Comment to Rule
1.6.