FLORIDA BAR ETHICS OPINION
August 27, 1965
Advisory ethics opinions are not binding.
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.
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.