Can a lawyer refuse to give a government agency information about a client's affairs based on a good-faith claim of privilege or work product?

Plain-English summary

The inquiring lawyer represented a decedent's estate. The value of certain closely held corporate stock mattered for estate-tax purposes, and a controversy existed with the Internal Revenue Service over the proper valuation method. To gauge the controversy, the lawyer had an appraisal made of the corporation's underlying assets. The IRS asked him to turn the appraisal over, and he declined, believing it was a privileged communication or his work product or both. The appraisal had not been procured to prepare the estate-tax return, and it covered the corporation's assets, not estate assets directly.

A majority of the committee held that the ultimate question, whether the appraisal was in fact privileged or work product, was a question of law beyond its jurisdiction. It was clear, however, that a lawyer does not act unethically when he refuses to divulge information about a client's affairs to a governmental administrative or investigatory agency, if he believes in good faith that he may have legal grounds to withhold it, under privilege, work product, or otherwise, and that withholding serves the client's best interest. The committee said a lawyer has a duty to withhold such information where he has legal grounds and disclosure may harm the client, but he cannot raise spurious grounds or speak in bad faith, and must abide by the orders of courts of competent jurisdiction. The ethical propriety of his conduct does not depend on the outcome of judicial review if he acted in good faith on reasonable grounds.

Currency note

This opinion was issued in 1965, 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. The protection of client information is now governed by Rule 4-1.6 of the Rules Regulating The Florida Bar (Model Rule 1.6). 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 Treat this page as historical context, not current guidance.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 an agency's request for client information?

A: The committee said a lawyer does not act unethically by refusing, if he believes in good faith he may have legal grounds (privilege, work product, or otherwise) and that withholding is in the client's best interest.

Q: Does the lawyer have to be right that the information is privileged?

A: No. The committee said the ethical propriety of his conduct does not depend on the outcome of judicial review, provided he acted in good faith on reasonable grounds and raised no spurious grounds.

Q: Are there limits?

A: Yes. He cannot raise spurious grounds or speak in bad faith, and he must abide by the orders of courts of competent jurisdiction.

Background and rules framework

The opinion applied the former Canon 37 on preserving the confidences of a client. That duty is now addressed by Rule 4-1.6 of the Rules Regulating The Florida Bar (Model Rule 1.6). The committee was careful to separate the ethical question, which it answered, from the legal question of whether the particular appraisal was privileged or work product, which it declined to decide.

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. 72-3: Trust-Account Records and an IRS Audit
• FL Bar Ethics Op. 70-40: Privilege on a Subpoena and Self-Defense
• FL Bar Ethics Op. 68-31: Adoption Confidentiality and an Unpaid Bill

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-54/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-54.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-54
August 27, 1965
Advisory ethics opinions are not binding.
It is not unethical for a lawyer to refuse to divulge information about a client's affairs to a governmental agency if the lawyer in good faith believes that he may have legal grounds for withholding the information and that withholding the information is in the best interest of the client. The lawyer must, of course, abide by the orders of a court of competent jurisdiction.
Canon: 37
Chairman Kittleson stated the opinion of the committee:
A member of The Florida Bar has requested the Committee's advice on the following problem. He is the attorney for a decedent's estate. The value of certain shares of capital stock in a corporation has become significant for estate tax purposes. One of the controversial points is whether the value of the stock must be based upon the value of the corporation's underlying assets, without consideration of the facts that the decedent was a minority stockholder and that the corporation is closely held. In order to evaluate the importance of the controversy, the attorney caused an appraisal to be made of the corporation's underlying assets as of the date of the decedent's death and as of other pertinent dates. The Internal Revenue Service has requested that he make the appraisal available to the Government. He has declined to do so, on the belief that the appraisal is a privileged communication or the attorney's work product, or both. The appraisal was not procured for use in preparation of the estate tax return, and it is emphasized that the appraisal was not even of estate assets but of assets owned by a corporation, part of whose capital stock is an estate asset. The appraisal was procured to assist the attorney in advising his client on the significance of a known, existing controversy with the Internal Revenue Service over the proper method of valuing an estate asset.
A majority of the Committee hold the view that the ultimate question is one of law, which is beyond the jurisdiction of the Committee.
It seems clear, however, that a lawyer does not act unethically when he refuses to divulge to a governmental administrative or investigatory agency information concerning a client's affairs, if the lawyer in good faith believes that he may have legal grounds for withholding the information under the concepts of attorney-client privileged communication or attorney's work product, or otherwise, and if he believes that such withholding is in the best interest of his client. A lawyer has a duty to withhold information concerning a client's affairs where he has legal grounds to do so and where disclosure would or may be detrimental to the client. He cannot, of course, properly raise spurious grounds or otherwise speak in bad faith, and he must, of course, abide by the orders of courts of competent jurisdiction. But the ethical propriety of his conduct does not depend upon the outcome of the judicial consideration of his position, if he acted in good faith upon reasonable grounds.

The Committee does not purport to determine whether or not the appraisal here falls within the privileged communication and work product rules, nor how, if at all, the application of these rules is affected by the lawyer's function as co-executor as well as that of attorney.