The Florida Bar

February 18, 1965

A lawyer has an ethical duty to preserve his client's confidences. But whether or not particular information is privileged is essentially a question of law. If an attorney called upon to testify is asked to divulge information that he believes in good faith to be legally protected as a privileged communication, he may refuse to answer unless required by the court to do so, and in a proper case may seek appellate review.

Canon: 37
Opinion: ABA 247
Statute: F.S. § 55.52

Chairman Smith stated the opinion of the committee:

A member of The Florida Bar poses for us three questions as follows:

(A) Would the examination of an attorney in supplementary proceedings concerning the property and assets of his client, the judgment-debtor, pursuant to Section 55.52 of the Florida Statutes or Rule 1.40 of the Florida Rules of Civil Procedure per se require him to violate a confidential communication between himself and his client and thereby constitute a breach of professional ethics as set forth in Canon 37 of the Canons of Ethics?

(B) If an attorney appeared at such proceedings pursuant to an order of a court of competent jurisdiction and divulged such information under penalty of contempt proceedings, would he thereby subject himself to disciplinary proceedings by The Florida Bar and if so, would he not be entitled to refuse to answer any confidential communication, under the privilege against self-incrimination as provided in the state and federal constitutions?

(C) Assuming the answers to the foregoing questions are in the negative, would judgment-debtor's attorney still be entitled to assert the privilege with respect to specific questions that in the opinion of the Court exceed the legitimate scope of inquiry as to the assets and property of the debtor, and require the attorney to divulge confidences of his client?

This Committee is not authorized to answer questions of law, even if they are in some fashion related to matters of professional ethics. It is the opinion of a majority of the Committee that the questions, as posed, are essentially legal in nature. We must therefore respectfully decline to respond to the specific inquiries. Answering the questions more generally, it is the opinion of this Committee that whether a particular communication between attorney and client is confidential in nature is essentially a question of law to be considered by a court of competent jurisdiction. The American Bar Association's Committee on Professional Ethics held similarly in its Opinion 247. Of course, the lawyer can appear and testify as to those matters which do not fall within the rule of confidential communication. As to privileged matters, the lawyer may refuse to answer unless required by the court to do so. If the lawyer or his client believes that the nature of any inquiry is such that an adverse ruling of the trial court should be reviewed, the lawyer may then properly refuse to answer the particular inquiry until he has secured a review of the matter by the proper appellate court. Ultimately it would appear to be the lawyer's duty to be bound by any final adjudication of the issue.

This Committee generally is of the opinion that no lawyer should be disciplined for obeying the court order which has properly been entered.

[Revised: 08-24-2011]