The Florida Bar

December 7, 1993

An attorney who has claimed confidentiality and/or privilege in filing an incomplete IRS Form 8300 must, if served with a facially sufficient summons, make a good faith attempt to determine whether a legally recognized privilege applies. If the attorney determines that a privilege might apply, it should be asserted on the client's behalf. If the attorney determines that no privileges are applicable, the attorney acts ethically in complying with the summons. If the court rules that an asserted privilege is inapplicable and orders disclosure, the attorney must either comply with the court's order or appeal the order.

RPC: 4-1.6

Cases: United States v. Levanthal, 961 F.2d 936 (11th Cir.
1992); United States v. Goldberger, 935 F.2d 501 (2d
Cir. 1991)

A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented in the inquiring attorney's letter are as follows.

The attorney apparently refused to fully complete IRS Form 8300, "Reports of Cash Payments Over $10,000 Received in a Trade or Business," on the grounds that such information is confidential and/or privileged. The IRS, citing United States v. Levanthal, 961 F.2d 936 (11th Cir. 1992) and United States v. Goldberger, 935 F.2d 501 (2d Cir. 1991), rejected the attorney's claim of confidentiality and/or privilege and requested by letter that he provide the information within 30 days. The IRS letter indicates that failure to submit the requested information will result in the issuance of a summons. The attorney inquires about his ethical duty under the circumstances.

Rule 4-1.6 is the governing ethical standard. Section (a) of that rule states:

A lawyer shall not reveal information relating to representation of a client except as stated in paragraphs (b), (c), and (d) unless the client consents after disclosure to the client.

It seems clear that the information sought by the IRS on the 8300 form is information "relating to the representation of a client" and ordinarily, pursuant to the attorney's ethical duty of confidentiality, should not be voluntarily disclosed absent client consent.

There are times, however, when a lawyer is required or, alternatively, permitted to reveal otherwise confidential information. Section (b) of Rule 4-1.6, for example, requires such disclosure to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another. Section (c) of the rule sets forth certain situations when a lawyer may, but is not required to, reveal information relating to the representation of a client. None of the exceptions to the confidentiality rule appears to be implicated in the instant matter.

When information is sought from a lawyer pursuant to subpoena or, as in this case, by service of a summons, the legal issue of attorney- client privilege becomes relevant. (Whether a particular communication is protected by the evidentiary attorney- client privilege is a question of law that is beyond the authorized scope of an advisory ethics opinion. See Rule 2, Florida Bar Procedures for Ruling on Questions of Ethics.) The Comment to Rule 4-1.6 explains the relationship between the ethical obligation of confidentiality and the legal doctrine of attorney-client privilege:

The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.
* * *
If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, rule 4-1.6(a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

In accordance with the above principles, an attorney who is required to complete IRS Form 8300 should initially decline to provide the requested confidential and/or privileged information, absent client consent, when the attorney files the form. If the attorney is then served with a facially sufficient summons, as the attorney was in Levanthal, the attorney must make a good faith attempt to determine whether the attorney-client or some other privilege might apply. In determining whether a privilege applies, all applicable law shall be considered by the attorney. If the attorney determines that a privilege might possibly apply, the attorney should assert it on the client's behalf. If a court subsequently finds that the asserted privilege does not apply and orders the
attorney to provide the information, the attorney's ethical duty has been satisfied and the information may be revealed. The attorney may appeal the court's order if the attorney believes it is wrong, but the attorney is not required to do so. See Rule 4- 1.6(d), Rules Regulating The Florida Bar.

If, on the other hand, after being served with a summons the attorney determines that no privileges are applicable, the attorney acts ethically in complying with the summons and providing the requested information. Again, any reasonable doubt about the applicability of a privilege (or other legally recognized reason for noncompliance) should be resolved in favor of the client .

[Revised: 08-24-2011]