The Florida Bar

Ethics Opinion

Opinion 71-29

September 13, 1971
Advisory ethics opinions are not binding.
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.

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).