The 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.

DR 4-101
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
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.