The State Bar Association of North Dakota Summer 2015 Gavel Magazine | Page 37

STATE BAR ASSOCIATION OF NORTH DAKOTA

ETHICS COMMITTEE OPINION NO. 15-06
This opinion is advisory only

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. §14-1516 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. §1415-16(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:
“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