The Florida Bar

Ethics Opinion

Opinion 70-40

November 16, 1970
Advisory ethics opinions are not binding.
On subpoena before the court to testify as to advice given a client, an attorney should raise the
attorney-client privilege if he believes the testimony would fall within it. However, the attorney
must be able to defend himself if the client places into question the competency of the advice.

DR 4-101(C)(D)
Chairman Massey stated the opinion of the committee:
A member of The Florida Bar represented a client in a criminal matter. The
client pled guilty and now challenges the sentence which could be imposed. The
attorney has been subpoenaed to testify as to the advice given the client and
inquires as to the ethical considerations of responding to questions posed to him
while under subpoena before the court.

The Committee recognizes that the question, in part, may be one of law for the court
before whom the attorney is subpoenaed. Assuming the attorney believes the matter falls within
the attorney-client privilege, he should raise it and abide by the court’s decision.
However, the question is further answered within the purview of CPR DR 4-101(C) and
(D) in that the attorney, assuming the court regards answers to the questions to be required, must
be permitted to testify to avoid the possibility of a perpetration of a fraud on the court. When the
client has challenged a sentence claiming the same not to have been explained to him and his
attorney is aware of what explanations, if any, were given, the attorney additionally must be in a
position to defend himself as to competent advice having been given as well. From this latter
point of view, the attorney-client privilege would not apply in the first instance.