Can a lawyer who served as intermediary in a private adoption reveal the natural parents' identity to the adoptive parents so they can sue to recover money paid?

Plain-English summary

An attorney had served as intermediary in a private adoption that was never completed. The natural parents had signed a statement agreeing to reimburse the adoptive parents for costs, but the natural parents' names were never disclosed to the adoptive parents and were not intended to be revealed. The adoptive parents now wished to sue the natural parents to recover the money paid, and the attorney, recognizing she could not represent either side, asked whether she could provide the natural parents' names to the lawyer who would represent the adoptive parents.

The committee applied DR 4-101 on preservation of client confidences. It reasoned that where an attorney-client relationship exists with more than one person on a matter, the privilege exists as to each client individually, so information the attorney obtained from the natural parents is confidential as to the other couple. Absent the natural parents' consent after full disclosure, the attorney must not reveal information obtained from them unless ordered by a court.

The committee found the same result under proposed Rule 4-2.2 on the lawyer as intermediary, whose commentary explains that, as between commonly represented clients, the attorney-client privilege does not attach and will not protect communications if litigation later arises between them. The committee concluded that communications about the reimbursement agreement were therefore not privileged, but that the natural parents' identity, which never became a communication between the parties, remained protected; the attorney could not reveal the names without the natural parents' consent after full disclosure or a court order.

Currency note

This opinion was issued in 1985, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the intermediary lawyer give the adoptive parents the natural parents' names?

A: The opinion concluded the attorney may not reveal the natural parents' identity, which was never disclosed and not intended to be revealed, absent the natural parents' consent after full disclosure or a court order.

Q: Are the communications between the two couples privileged?

A: The opinion concluded that, as between commonly represented clients, the privilege does not attach, so communications about the reimbursement agreement are not protected if litigation arises between them.

Q: Why is the natural parents' identity treated differently?

A: The opinion concluded that the identity never became a communication between the parties, so it continues to be protected by the attorney-client privilege.

Background and rules framework

The opinion interprets the duty of confidentiality and the rules on a lawyer acting as intermediary among multiple clients. At the time it relied on CPR DR 4-101 (Model Rule 1.6, confidentiality) and on proposed Rule 4-2.2 (then-Model Rule 2.2, lawyer as intermediary, since deleted from the Model Rules; the subject is now treated under Model Rule 1.7 on concurrent conflicts).

Citations and references

Rules of Professional Conduct:

• CPR DR 4-101 (Model Rule 1.6, confidentiality)
• Proposed Fla. Rule 4-2.2 (then-Model Rule 2.2, lawyer as intermediary)

See also

• FL Bar Ethics Op. 95-4: Joint Representation of Spouses and a Separate Confidence
• FL Bar Ethics Op. 02-3: Joint Representation of Driver and Passenger
• FL Bar Ethics Op. 10-3: Confidential Information of a Deceased Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-85-2/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-85-2-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 85-2
August 1, 1985
Advisory ethics opinions are not binding.

If the identity of the natural parents was not intended by all parties to be disclosed to the adoptive parents, the attorney who acted as intermediary in an uncompleted private adoption may not reveal the identity of the natural parents to the adoptive parents to enable the latter to name the natural parents in a suit to recover money paid to the natural parents for expenses.

CPR: DR 4-101
RPC: Rule 4-2.2

An attorney was an intermediary in a private adoption that was not completed. The attorney has a signed statement from the natural parents maintaining that they will reimburse the adoptive parents for all costs that were paid by the adoptive parents. The adoptive parents now desire to bring suit against the natural parents for all the monies that were paid to the natural parents. The names of the natural parents were never disclosed to the adoptive parents and were not intended by the parties to be revealed. The attorney, recognizing that she may not represent either party in the contemplated litigation, inquires whether she may provide the names of the natural parents to the attorney who ends up representing the adoptive parents.

DR 4-101, which addresses preservation of confidences of a client, applies to this situation.

When an attorney-client relationship exists between an attorney and more than one person concerning a particular matter, the attorney-client privilege exists as to each client individually. Consequently, in the question presented any information the attorney may have obtained from the natural parents is confidential as to the other couple.

Therefore, absent the consent of the natural parents after full disclosure, the attorney shall not reveal any information obtained from them unless ordered by a court to do so.

The same result would be obtained under Rule 4-2.2 of the Proposed Rules of Professional Conduct, which addresses the subject of attorney as intermediary. Rule 4-2.2(a) states in part:

A lawyer may act as intermediary between clients if:

(1) The lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client's consent to the common representation; . . . (Emphasis added.)

Addressing this particular provision, the commentary to the rule states:

With regard to the attorney-client privilege, the prevailing rule is that as between commonly represented clients the privilege does not attach. Hence it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised. (Emphasis added.)

From the commentary it appears that the attorney-client privilege will not protect any communications made between the parties. Thus, any communications concerning the agreement made by the natural parents to reimburse the adoptive parents are not protected by the privilege. However, since the identity of the natural parents never became a communication as such between the parties it continues to be protected by the attorney-client privilege. Therefore, the attorney cannot reveal the natural parents' names without either the consent of the natural parents after full disclosure or a court order.