The Florida Bar

September 13, 1971

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).

[Revised: 08-24-2011]