The Florida Bar

August 27, 1965

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.

[Revised: 08-24-2011]