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Ethics Opinions from the Bar Association of San Francisco

OPINION 1975-5

An attorney may not reveal to the Internal Revenue Service pursuant to a summons under Section 7602 the details of fees paid, dates of payment, etc. unless the client specifically and in writing waives any privilege he may have, or, unless the attorney is ordered to do so by the court.

QUESTION:

May an attorney reveal to the Internal Revenue Service, pursuant to a summons under Section 7602, the details of fees paid, dates of payment, and method of payment of a specifically named client?

OPINION
No, unless the client specifically and in writing waives any privilege he may have, or, unless the attorney is ordered to do so by a court.

DISCUSSION:

The facts as presented to the Committee are that the attorney in question represented a defendant in a criminal matter involving a charge of conspiracy to violate the Federal narcotics laws, relating to possession, importation, and distribution of drugs. The client, who is now imprisoned after conviction, is under investigation by the IRS. As is usual in such cases, when the client was arrested a jeopardy assessment was made and his tax year declared closed. While the present IRS investigation is probably in aid of that matter, it is not unlikely that other matters might be brought to light since the indictment included charges of a wide-ranging conspiracy with others known and unknown. The attorney has requested a waiver of any attorney-client privilege but this has been refused by the client.

This committee has considered a related problem in Opinion 1974-3 and concluded that an attorney may not volunteer information to IRS relating to sources of funds which the attorney has deposited in his client trust account. It was further the opinion of the Committee that the attorney must resist any IRS summons and reveal his records only after having been ordered to do so by a Court after an adversary proceeding. One of the bases of the opinion was that the attorney must assert any Fifth Amendment rights of the client if the attorney thinks such assertion appropriate. Not explicit in the Committee's prior opinion, but nevertheless important is the ethical obligation of an attorney "to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge." Ethical Consideration 4-4, ABA Code of Professional Responsibility. In addition, a California lawyer is under an obligation of law "to maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." Business and Professions Code §6068(e). Violation of this statute would subject a California lawyer to disciplinary proceedings before the State Bar.

In the fact situation presented there appears to be a substantial risk of incrimination if the records are produced. If the related records in the hands of the client could be protected by assertion of the privilege, the attorney should assert such privilege unless it is waived by the client or is overruled by a Court order.

It is further the opinion of the Committee that unless there is no possible basis for assertion of any privilege, the attorney must resist voluntary production of records of payments by the client to the attorney.

The Committee suggests the following guidelines for attorneys confronted by an IRS demand or summons without intimating that resistance based upon these guidelines is appropriate for every situation or that the Committee is counseling on matters of law, or that these guidelines are all-inclusive.

I. Bases of Resistance

A. Right of Privacy - Fourth Amendment

B. Right Against Self-Incrimination - Fifth Amendment

C. Right to Counsel - Sixth Amendment

D. California business and Professions Code

E. State Bar of California Rules of Professional Conduct

F. ABA Code of Professional Responsibility

II. Guidelines for Disclosure of Information

A. Obtaining Informed, Written Consent of Client

  1. Disclosing complete problem to client.
  2. Suggest review by independent counsel.

B. Resistance of Summons Until Court Orders Disclosure

  1. Inform client of Court proceedings for possible intervention by client
  2. Consider appeal of any District Court Order requiring disclosure
  3. Consider written request for an Opinion of Ethics Committee if fact situation differs from that outlined in this Opinion

III. Some relevant case law

A. U.S. v. Zack, 521 F.2d 1366 (9th Cir. 1975)

B. In re Michaelson, 511 F.2d 882 (9th Cir. 1975)

C. U.S. v. Cromer , 483 F.2d 99 (9th Cir. 1973)

D. U.S. v. Bisceglia, 420 U.S. 141 43 L.Ed.2d 88 (1975)

E. Couch . v. U.S., 409 U.S. 322, 34 L.Ed.2d 548 (1973)

F. U.S. v. Kasmir 499 F.2d 444 (5th Cir. 1974) (N.B. cert. granted 420 U.S. 906, argued November 1975)

 

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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