FLORIDA BAR ETHICS OPINION
February 18, 1965
Advisory ethics opinions are not binding.
A lawyer has an ethical duty to preserve his client’s confidences. But whether or not particular
information is privileged is essentially a question of law. If an attorney called upon to testify is
asked to divulge information that he believes in good faith to be legally protected as a privileged
communication, he may refuse to answer unless required by the court to do so, and in a proper
case may seek appellate review.
F.S. § 55.52
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar poses for us three questions as follows:
Would the examination of an attorney in supplementary
proceedings concerning the property and assets of his client, the judgment-debtor,
pursuant to Section 55.52 of the Florida Statutes or Rule 1.40 of the Florida Rules
of Civil Procedure per se require him to violate a confidential communication
between himself and his client and thereby constitute a breach of professional
ethics as set forth in Canon 37 of the Canons of Ethics?
If an attorney appeared at such proceedings pursuant to an order of
a court of competent jurisdiction and divulged such information under penalty of
contempt proceedings, would he thereby subject himself to disciplinary
proceedings by The Florida Bar and if so, would he not be entitled to refuse to
answer any confidential communication, under the privilege against
self-incrimination as provided in the state and federal constitutions?
Assuming the answers to the foregoing questions are in the
negative, would judgment-debtor’s attorney still be entitled to assert the privilege
with respect to specific questions that in the opinion of the Court exceed the
legitimate scope of inquiry as to the assets and property of the debtor, and require
the attorney to divulge confidences of his client?
This Committee is not authorized to answer questions of law, even if they are in some
fashion related to matters of professional ethics. It is the opinion of a majority of the Committee
that the questions, as posed, are essentially legal in nature. We must therefore respectfully
decline to respond to the specific inquiries. Answering the questions more generally, it is the
opinion of this Committee that whether a particular communication between attorney and client
is confidential in nature is essentially a question of law to be considered by a court of competent
jurisdiction. The American Bar Association’s Committee on Professional Ethics held similarly in
its Opinion 247. Of course, the lawyer can appear and testify as to those matters which do not
fall within the rule of confidential communication. As to privileged matters, the lawyer may
refuse to answer unless required by the court to do so. If the lawyer or his client believes that the
nature of any inquiry is such that an adverse ruling of the trial court should be reviewed, the
lawyer may then properly refuse to answer the particular inquiry until he has secured a review of
the matter by the proper appellate court. Ultimately it would appear to be the lawyer’s duty to be
bound by any final adjudication of the issue.
This Committee generally is of the opinion that no lawyer should be disciplined for
obeying the court order which has properly been entered.