Ethics Opinion

Opinion 92-5

FLORIDA BAR ETHICS OPINION
OPINION 92-5
December 7, 1993
Advisory ethics opinions are not binding.
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:
Cases:

4-1.6
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 attorneyclient 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.
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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.