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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-07
Confidences and Secrets; suit against former clients
Although the attachments to your inquiry raise numerous legal and other issues, the specific ethical question raised by you is fairly narrow. The essential facts are as follows. Attorney A represented Mr. and Mrs. X in the adoption of a baby, Mr. and Mrs. X being the adopting parents. Mr. and Mrs. X agreed to pay the medical costs associated with the birth of the child. In order to preserve the confidentiality of the identity of Mr. and Mrs. X, Attorney A made an arrangement with the hospital for all bills to be sent to Attorney A for payment. A dispute has arisen between Attorney A and Mr. and Mrs. X because the total bills submitted by the hospital exceeded the amount estimated originally by Attorney A, which estimated amount Mr. and Mrs. X had deposited with Attorney A. Accordingly, there is still money due and owing the hospital which is greater than the amount of the deposit made by Mr. and Mrs. X with attorney A.
The hospital is pressing Attorney A for payment, and Mr. and Mrs. X have refused to pay the excess over the original deposit. The ethical question raised by Attorney A is as follows: if a suit is brought against him by the hospital, can Attorney A, either in a third party complaint in that suit or in a separate suit, sue Mr. and Mrs. X, thus breaching the confidentiality of the adoption proceedings whereby the identification of the adopting parents and natural parents are to be kept confidential.
Rule 1.6(b)(3) of the Rules of Professional Conduct provides in pertinent part that a lawyer may reveal confidential information relating to the representation of a client to the extent that the lawyer reasonably believes it is necessary to do so in order to establish a claim on behalf of the attorney in a controversy between the attorney and his client. The Comment to Rule 1.6 notes that where a lawyer exercises his discretion in revealing confidential information, the disclosure should be no greater than the lawyer reasonably believes is necessary to establish his claim, ""and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.""
It is the opinion of this Committee that Lawyer A, consistent with Rule 1.6, may but is not required to pursue a legal action against Mr. and Mrs. X to the extent that the lawyer has a claim resulting from the hospital pressing a claim against the lawyer. The Committee, consistent with the language in the Comment, believes that if the lawyer institutes any action, he should attempt to maintain the confidentiality of the identity of Mr. and Mrs. X by obtaining an appropriate protective order, filing the papers under seal, or seeking such other arrangement with the court so that the identity of the adopting parents is kept confidential. The Committee expresses no opinion whatsoever concerning the merits of this controversy between Lawyer A and Mr. and Mrs. X. Furthermore, the confidentiality of the adopting parents' identity issue addressed in this Opinion is solely in the context of the Rules of Professional Conduct; the Committee expresses no opinion with respect to the legal issue concerning such confidentiality of identity in adoption proceedings.
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