The Florida Bar

July 12, 1968

A member of The Florida Bar, having expressly entered into an arrangement with a hospital regarding payment of its bill in order to preclude the hospital from learning the identity of adopting parents, may not disclose to the hospital the parents' identity in order to avoid a suit by the hospital against himself for the unpaid bill. However, any damage which he suffers as a result of such a suit by the hospital may thereafter be sought by him in a proceeding brought against his former clients, which proceeding would not have to involve such a disclosure as would breach the statutory confidentiality of adoption proceedings.

Canons: 6, 14, 37, 41

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar advises as follows:

Over a year ago, I represented a young couple in adopting a newborn baby boy. The adopting parents were brought in contract with a young unwed mother through a local obstetrician. The parents asked me to represent them in the adoption. I was retained prior to the birth of the child. The arrangement was that the adopting parents would pay the mother's hospital bill and that of the baby. In order to assist the adopting parents and to prevent anyone at the hospital from connecting the baby boy and the adopting parents, I signed all releases and other discharge papers for the baby as attorney and delivered it to the adopting parents. Thus, the only name on the hospital records other than the natural mother is my name as attorney for anonymous adopting parents. The adoption proceeding was subsequently filed and successfully completed.

Although my clients had assured me that they were able to pay the hospital bill and the obstetrician's bill in full when they became due, only about one half of each bill has been paid at the present time. The hospital business manager has repeatedly telephoned me to inquire as to when they can expect payment. Likewise, I have repeatedly urged my clients to complete payment. They finally advised me that they were obtaining a loan from a local Federal Savings and Loan and would pay the hospital bill together with some other outstanding accounts which they had. The loan was closed over a month ago and still the hospital bill has not been paid. Last week I wrote my clients and informed them that unless they forwarded to me a sum sufficient to pay the hospital and obstetrician bills, I would have no other choice but to inform the hospital of their names as adopting parents. I did not receive the necessary funds from my clients nor any other reply.

It is at once evident that this inquiry poses a variety of problems, both legal and ethical in nature. To the extent that the inquiry involves questions of privilege, and the contractual or agency relationship existing between himself, the adopting parents, and the hospital, it is beyond our jurisdiction and indeed we are not certain that the limited facts given would be adequate for an informed resolution of any of those issues.

Reducing the question to the ethical problem involved, it might at first appear only to be whether the lawyer was obliged to disclose to the hospital the persons who had agreed to pay its bill, particularly if such disclosure was indicated in order to avoid a suit by the hospital against the attorney as an agent for principals undisclosed to the hospital. It is possible that in circumstances such as these the intent of Canon 41 might operate to permit the lawyer to make an appropriate disclosure. In this instance, however, the problem is not so simply analyzed, because there is a party affected by such disclosure other than the lawyer, the hospital, or the client, the child whose protection is underscored by the fact that the entire statutory adoption procedure, Chapter 63, Florida Statutes (1967), continually emphasizes the necessity for confidentiality in order to protect his interests. In this instance, it is our opinion, two members dissenting, that the lawyer, having expressly entered into the arrangement in question in order to preclude the hospital from learning the identity of the adopting parties, and thus presumably to implement the spirit of Chapter 63, Florida Statutes (1967), ethically may not now to the detriment of the child make a direct disclosure to the hospital of the parents' identity. We are not told that the hospital has assumed the position that the lawyer may ultimately be sued. If he is, then presumably any damage he suffers may thereafter be recouped by him in a proceeding brought against his former clients, which proceeding, of course, would not have to involve disclosure, at least in the pleadings, of such facts as would breach the statutory confidentiality. Of course, the lawyer would be at liberty, and might be required in appropriate circumstances, to take such further steps in the case as would preserve the confidentiality of such facts as should not be publicly disclosed to the detriment of the child.

It is recognized by the Committee that this answer is hardly satisfactory from the standpoint of the attorney, particularly a dedicated advocate such as the inquirer who has endeavored to be of genuine assistance to ungrateful and unreliable clients. Even more regrettable is the demonstration by these parents of characteristics indicating that they are hardly suitable subjects for adoptive parents. On the other hand, these and allied problems are often by-products of so-called “private” adoptions arranged between attorneys, physicians and hospitals, and lacking the presence of a licensed child placement agency. Naturally, so long as such placements are legally sanctioned in Florida those persons who may desire or prefer to adopt children this way should be represented by competent counsel. Accordingly, we would not at all wish to suggest that it is improper or inappropriate for the lawyer to enter into the representation. On the other hand, the fact that problems such as the ones encountered in this case and similar problems often occur in these type situations indicates that a particularly high degree of caution should be observed by a lawyer in the handling of so-called private placements, and every precaution should be taken to conclude all matters of payment or similar details prior to a time when a lawyer may find himself past an ethical point of “no return.” To point this out by hindsight is scarcely consolation to this inquirer, but it is our hope that by emphasizing this consideration in this case, others who may have occasion to refer to this opinion will be better guided in the future.

[Revised: 08-24-2011]