Must a lawyer who represents adoptive parents and can see confidential genetic-parent information in the court file disclose it to the adoptive-parent client on request?

Plain-English summary

An attorney of record for adoptive parents can now view all documents filed in an adoption, including restricted and confidential documents, through the Odyssey court filing system. In agency adoptions, the agency usually handles confidential information about the birth parents that it does not want released to the adoptive parents. The committee was asked whether, because the lawyer can access that confidential information, the lawyer must give it to the adoptive-parent client on request. The opinion presumes the adopted child is under eighteen.

The committee concluded the lawyer is not obligated, and indeed may not, disclose the confidential genetic-parent identifying information outside the statutory process. North Dakota law (N.D.C.C. 14-15-16) makes records and identifying information about the adopted individual, birth parents, and adoptive parents confidential, disclosable only as the statute allows, and vests the child-placing agency with discretion over disclosure. Nonidentifying information must be furnished on request, but identifying information requires the party's consent, and the statute, not the lawyer, controls. The committee concluded the statute does not authorize the attorney to disclose confidential information to the adoptive-parent client.

The committee held the Rules of Professional Conduct do not let a lawyer circumvent the statute. It noted that the comment to Rule 1.4 supports withholding information when disclosure would risk substantial harm, and that the birth parents' statutory right to anonymity should not be violated without a court order or each genetic parent's consent through the agency. The specific statute overrides the more general rule on client-file content. While Rule 1.19(b)(2) defines filed litigation materials as part of the client's file, the committee concluded that does not automatically make confidential adoption information part of the file that must be disclosed; the Odyssey system allows confidential filing, which the lawyer must respect. Rule 1.4(a)(5) requires the lawyer to explain these legal limits to the client when the client requests the information, because the statutory limits make such a request unreasonable under Rule 1.4(a)(4).

In practice

This opinion, approved July 28, 2015, applies North Dakota Rules of Professional Conduct 1.4 and 1.19 against the adoption-confidentiality statute, N.D.C.C. 14-15-16, as they stood at that time. The committee held that a lawyer for adoptive parents may not disclose confidential identifying information about the genetic parents to the client unless the statute's disclosure procedures (a court order or each genetic parent's consent through the child-placing agency) are first satisfied, even though the lawyer can access the information in the court file. The committee held that Rule 1.19 does not make confidential adoption material part of the disclosable client file, and that Rule 1.4(a)(5) requires the lawyer to explain these statutory limits to a client who requests the information.

Common questions

Q: Does a lawyer for adoptive parents have to give the client confidential information about the birth parents?

A: No. The committee concluded the lawyer must follow N.D.C.C. 14-15-16 and may not disclose the genetic parents' confidential identifying information to the client unless the statute's procedures are first satisfied.

Q: Does the lawyer's access to the confidential court documents change the answer?

A: No. The committee concluded that being able to view the confidential documents through the Odyssey filing system does not authorize disclosure; only the child-placing agency may disclose, under a court order or with each genetic parent's consent.

Q: Are the confidential adoption documents part of the client's file that must be turned over?

A: No. The committee concluded that although Rule 1.19(b)(2) treats filed litigation materials as part of the client file, that does not automatically make confidential adoption information disclosable; the lawyer must respect the documents' confidential filing.

Q: What must the lawyer tell the client who asks for the information?

A: Under Rule 1.4(a)(5), the lawyer must explain the statutory limits on disclosing confidential adoption information, because the statute makes such a request unreasonable under Rule 1.4(a)(4).

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 1.4 (Model Rule 1.4, communication), specifically Rule 1.4(a)(4) and (a)(5), and North Dakota's Rule 1.19 (files, papers, and property related to a representation), a North Dakota-specific rule. It reads these rules against the adoption-records statute N.D.C.C. 14-15-16, applying the canon that a specific statute overrides a more general rule.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / N.D.R. Prof. Conduct 1.4(a)(4), 1.4(a)(5) (communication; explaining limits on assistance)
• N.D.R. Prof. Conduct 1.19(b)(2) (files, papers, and property; North Dakota-specific rule)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D.C.C. 14-15-16 (confidentiality of adoption records; agency discretion over disclosure)
• N.D.C.C. 1-02-07 (specific statute controls over general)

Cases:

• State ex rel. Clayburgh v. American West Community Promotions, Inc., 2002 ND 98, 645 N.W.2d 196, regulation conflicting with statute is void

See also

• OSB Op. 2005-76: Disclosing Adoption Info to Client
• DC Ethics Op. 366: Ethics in Private Adoptions
• Maine Ethics Op. 159: Adoption Agency and Birthmother

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/extended/opinion_15-06.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NO. 15-06

QUESTION PRESENTED

Whether an attorney representing the adoptive parents is ethically obligated to disclose confidential information about the genetic parents to the adoptive parents?

OPINION

An attorney for adoptive parents is statutorily obligated by N.D.C.C. § 14-15-16 to conceal confidential information about the identity of the genetic parents from the adoptive parents unless the requirements of N.D.C.C. § 14-15-16 are first satisfied in obtaining authorized information disclosure. A lawyer for adoptive parents should explain the statutory procedures and limitations of N.D.C.C. § 14-15-16 to an adoptive parent client requesting confidential information disclosure and follow the procedures of N.D.C.C. § 14-15-16 to obtain authorization to disclose confidential information to the adoptive parent client. It is presumed for the purposes of the opinion that the child to be adopted is under the age of eighteen years.

APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT

Rule 1.19(b)(2), N.D.R. Prof. Conduct on Files, Paper, and Property Related to a Representation

Rule 1.4(a)(5), N.D.R. Prof. Conduct on Communication
FACTS PRESENTED

The attorney of record is now able to view all documents filed in an adoption, including

• restricted/confidential documents, through the Odyssey court filing system. In agency
  adoptions, the agency normally works with the birth parents and handles confidential information that the adoption agency does not want released to the adoptive parents. Since the attorney for the adoptive parents has access to the confidential information (either in digital or hard copy form), is the attorney under an ethical obligation to supply the adoptive parents with the confidential documents, particularly when the adoptive parent client requests that information?

DISCUSSION

The North Dakota Legislature has empowered the adoption agency with the discretion to disclose confidential adoption information. N.D.C.C. § 14-15-16(4) states “All papers, records; and identifying and nonidentifying information relating to an adopted individual, birth siblings, birth parents, or adoptive parents, whether part of the permanent record of the court or of a file in the department or in an agency are confidential and may be disclosed only in accordance with this section.” N.D.C.C. § 14-15-16(5) states “Nonidentifying information, if known, concerning undisclosed genetic parents must be furnished at a reasonable fee to: a. The adoptive parents at the time of adoptive placement or upon their written request; b. An adopted adult upon written request; or c. A birth parent upon written request.” N.D.C.C. § 14-15-16(7) states:

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“Before the child reaches adulthood, at the discretion of the child-placing agency, with due regard for confidentiality, exchanges of identifying or nonidentifying information may take place between the genetic parents, adoptive parents, and adopted child.

a. Disclosure of a party's identifying information may not occur unless the party consents to disclosure.

b. If one parent objects, the identifying information disclosed by the agency may only relate to the consenting parent or parents.”

N.D.C.C. § 14-15-16 does not authorize the attorney for any adoptive parent to disclose confidential information to the adoptive parent.

The North Dakota Rules of Professional Conduct do not permit an attorney to circumvent the requirements of N.D.C.C. § 14-15-16. The comment to Rule 1.4, N.D.R. Prof. Conduct on withholding or delaying transmission of information supports this interpretation in stating “When a lawyer reasonably believes the disclosure of certain information to a client would have a high probability of resulting in substantial harm to a client or others, the lawyer may withhold or delay the transmission of the information, but only to the extent reasonably necessary to avoid the harm.” The right of birth parents to choose to remain anonymous is statutorily guaranteed, which right no attorney should violate without first obtaining a court order directing confidential information disclosure or obtaining the consent of each genetic parent through the adoption agency.

The specific requirements of N.D.C.C. § 14-15-16 override the more general rule on client file content disclosure. Cf. N.D.C.C. § 1-02-07; State ex rel Clayburgh v. American West Community Promotions Inc., 645 N.W.2d 196, 205; 2002 ND 98 (ND 2002) (“A regulation which exceeds the Commissioner's statutory authority or conflicts with the statute that it implements is void”). Although Rule 1.19(b)(2), N.D.R. Prof. Conduct defines all “pleadings, motions, memoranda, and other litigation materials which have been executed and served or filed” as part of “a client’s files, papers (including items only electronically stored), or property”, that rule does not automatically make confidential adoption information part of a client's file that must be disclosed to the adoptive parent client. The Odyssey court filing system has an option for filing documents as confidential and the attorney for the adoptive parents is legally obligated to respect that confidentiality.

Rule 1.4(a)(5), N.D.R. Prof. Conduct requires the attorney of adoptive parents to explain these legal limitations on confidential adoption information disclosure to the adoptive parent client when this information is requested by the client. That rule states a lawyer shall “consult with the client about any relevant information on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by these Rules or other law.” Although Rule 1.4(a)(4), N.D.R. Prof. Conduct requires an attorney to “promptly comply with the client’s reasonable requests for information’, the statutory limitations of N.D.C.C. § 14-15-16 make such confidential information requests unreasonable.

CONCLUSION

An attorney of an adoptive parent who is asked to provide confidential information about genetic parents to his client must follow the procedures of N.D.C.C. § 14-15-16 on behalf of an adoptive parent client prior to such disclosure. The provisions

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of that statute “supersede any other law regarding public hearings and records.” N.D.C.C. § 14-15-16(1). An attorney cannot violate the statutory right of a genetic parent to remain anonymous by disclosing confidential information already made available to that attorney on the electronic court filing system—only the adoptive agency is legally authorized to disclose such information pursuant to a court order or the provision of the consent of each genetic parent.

This opinion was drafted by Robin Gordon and was unanimously approved by the Ethics Committee on the 28th day of July, 2015.

This opinion is provided under Rule 1.2(B), North Dakota Rules for Lawyer Discipline, which states:

A lawyer who acts with good faith and reasonable reliance on a written opinion or advisory letter of the ethics committee of the association is not subject to sanction for violation of the North Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter.

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