If a lawyer is subpoenaed to testify before a grand jury about client communications, must he disclose them?

Plain-English summary

A lawyer who represented a corporation, its subsidiaries, and some of its officers and directors personally was advised that he might be subpoenaed to testify before a grand jury about communications between himself and his clients. He asked whether he should ethically disclose those communications if the grand jury asked under subpoena.

The committee began by noting that whether a communication is privileged is a question of law, not ethics. Assuming the lawyer in good faith believed he was being asked about privileged communications, he should refuse to answer and ask that the matter be presented to the judge presiding over the grand jury, availing himself of the guidelines in DR 4-101 on when a lawyer may or should reveal client communications. The committee concluded that if the judge then required revelation of a confidence or secret and the lawyer, after exhausting his legal procedures, still refused to answer, he would commit an unethical act under DR 4-101(D)(1).

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (DR 4-101(D)(1)), the subject matter of which is now addressed by Rule 4-1.6. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.6 before relying on any specific requirement mentioned here.

Common questions

Q: Should the lawyer refuse to answer the grand jury's questions about client communications?

A: Under this opinion, if the lawyer in good faith believes the questions seek privileged communications, he should refuse to answer and ask that the matter be presented to the presiding judge.

Q: What if the judge orders him to disclose the confidence anyway?

A: The opinion concludes that once the judge requires revelation and the lawyer has exhausted his legal procedures, refusing to answer would itself be an unethical act under DR 4-101(D)(1).

Q: Did the committee decide whether the communications were actually privileged?

A: No. The committee said whether a communication is privileged is a question of law, not ethics, and addressed only the lawyer's ethical course of conduct.

Background and rules framework

The opinion applied DR 4-101 of the former Code, which governed the preservation of client confidences and secrets and the limited circumstances permitting or requiring disclosure. That subject is now in Rule 4-1.6, governing confidentiality of information. The Model Rule analogue is Rule 1.6.

Citations and references

Rules of Professional Conduct:

• DR 4-101(D)(1) [Code of Professional Responsibility; subject matter now in Rule 4-1.6]

See also

• FL Bar Ethics Op. 71-60: Privilege in an Attorney-Lien Fight
• FL Bar Ethics Op. 72-3: Trust Records and an IRS Audit
• FL Bar Ethics Op. 72-40: Client Confidences After Death

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-29/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-29-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-29
September 13, 1971
Advisory ethics opinions are not binding.
An attorney subpoenaed to testify before a grand jury should assert attorney-client privilege if he in good faith believes the information sought is privileged. If the presiding judge requires revelation of a confidence or secret and appellate remedies are unavailing, the attorney is ethically obligated to reveal the information.
CPR: DR 4-101(D)(1)
Committeeman Massey stated the opinion of the committee:
A member of The Florida Bar represents a corporation, its subsidiaries and some of its officers and directors personally. He has been advised that he may be subpoenaed to testify about communications between himself and his clients before a grand jury. He asks whether he should ethically disclose the communications if asked by the grand jury and under subpoena.
The question of what is or is not a privileged communication is a question of law and not of ethics. Assuming the attorney in good faith believes he is being requested to answer questions which do involve privileged communications, he should refuse to answer and ask that the matter be presented to the judge presiding over the grand jury. The attorney may avail himself of the provisions of DR 4-101 which give the guidelines as to when an attorney may or should reveal communications of a client. Assuming the judge has required the revelation of a confidence or secret of a client and the attorney after exhausting his legal procedures refuses to answer, he then commits an unethical act. DR 4-101(D)(1).