The Florida Bar

February 6, 1967

An attorney served with a writ of garnishment subsequent to rendition of a judgment against his client may properly assert the attorney-client privilege in response. The attorney is not obligated to withdraw from representation of the client if the client refuses to waive the privilege.

Canon: 37

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar represents defendants against whom judgment has been rendered. During the time in which the representation still continues by virtue of the pendency of post-trial motions, the plaintiff has caused the inquiring attorney to be served with a writ of garnishment seeking answer under oath from the attorney, inter alia, as to personal indebtedness to the defendants, possession or control of property of the defendants, and knowledge as to other persons indebted to the defendants or possessing their property. The inquirer has filed a claim of privilege in response to the writ of garnishment. He now inquires as to whether he may properly answer this writ when the information upon which it would be answered was communicated in confidence by the client. He further inquires as to whether he would be required to withdraw from the representation of the defendants in the event they decline to waive any privilege which might be pertinent under the circumstances.

The question of privilege, its existence and extent, is an issue of law which is beyond the jurisdiction of this Committee. However, it is manifest that there can be no ethical impropriety in a lawyer asserting the privilege under the circumstances related and thereafter abiding the order of the court if the issue be further controverted by the plaintiff. It necessarily follows that the attorney can ethically continue to represent such interests of the defendants as may be involved in further proceedings even though they decline voluntarily to waive any privilege.

[Revised: 08-24-2011]